When it comes to wills, the dress code is formal

Learn­ings from Kemp v Findlay [2024] NSWSC 902

Will for­mal­i­ties

Sec­tion 6 of the Suc­ces­sion Act 2006 (NSW) (the Act) shows us how a will should be exe­cut­ed. A valid will must be in writ­ing and signed by the tes­ta­tor, in the pres­ence of two or more wit­ness­es, with at least two of those wit­ness­es to attest and sign the will in the pres­ence of the testator. 

If a per­son fails to exe­cute a valid will com­ply­ing with the for­mal­i­ty require­ments, under sec­tion 8 of the Act, the Court can con­sid­er whether an infor­mal will has been made. The Court has the pow­er to dis­pense the require­ments for exe­cu­tion, alter­ation or revo­ca­tion of wills, if it is sat­is­fied that the indi­vid­ual intend­ed the doc­u­ment to form his or her will.

A recent exer­cise of this pow­er can be found in the Supreme Court of NSW deci­sion of Kemp v Find­lay where the Court deter­mined an infor­mal doc­u­ment made in 2019 pre­vailed over an exe­cut­ed will of 2015 based on the find­ing that it was the deceased’s inten­tion that the 2015 doc­u­ment would form his final will.

Andrew Find­lay was an expe­ri­enced busi­ness­man who died in a boat­ing acci­dent in July 2023. He left three young chil­dren that he shared with his for­mer de fac­to spouse, Eliz­a­beth Kemp, and an estate worth approx­i­mate­ly $13.5 mil­lion. Mr Find­lay had exe­cut­ed a will in 2015 where Ms Kemp was appoint­ed as the sole execu­tor and ben­e­fi­cia­ry of his estate. Fol­low­ing his sep­a­ra­tion from Ms Kemp, Mr Find­lay sought to alter his will by draft­ing a doc­u­ment in June 2019, but he failed to print and exe­cute the doc­u­ment before his death. Under the 2019 doc­u­ment (which was not signed or print­ed) Mr Kemp appoint­ed his cousin as execu­tor and his three chil­dren as beneficiaries.

The main legal issue for con­sid­er­a­tion by the Court was whether Mr Find­lay intend­ed for the 2019 doc­u­ment ​‘to form his…will’ pur­suant to sec­tion 8 (2) (a) of the Act, rather than the 2015 will.

The valid­i­ty of an infor­mal will

When deter­min­ing the valid­i­ty of an infor­mal will, there is ​“the require­ment that the court be sat­is­fied that the tes­ta­tor intend­ed a doc­u­ment ​‘form’ his or her will [which] goes to the tes­ta­tor’s actu­al inten­tion regard­ing the oper­a­tive effect of the doc­u­ment in ques­tion. The court must be sat­is­fied that the tes­ta­tor actu­al­ly intend­ed that the doc­u­ment ​‘oper­ate’ and ​‘with­out more’, there­by con­sti­tut­ing his or her will…” pur­suant to sec­tion 8(2)(a) of the Act.

In the case of Kemp v Find­lay, the Court relied upon evi­dence to estab­lish that the 2019 doc­u­ment was draft­ed by Mr Find­lay with the inten­tion to form his will, not mere­ly set­ting out his tes­ta­men­tary wish­es fol­low­ing his sep­a­ra­tion from Ms Kemp. The Court also con­sid­ered whether Mr Find­lay lacked knowl­edge of the for­mal­i­ty require­ments in exe­cut­ing a valid will and looked at his pre­vi­ous will-mak­ing habits.

Inten­tion behind an infor­mal doc­u­ment to form a will and not mere­ly stat­ing tes­ta­men­tary wishes

An infor­mal doc­u­ment mere­ly set­ting out the tes­ta­men­tary wish­es of an indi­vid­ual can­not be regard­ed as a will. It is not suf­fi­cient for a doc­u­ment to set out a note of instruc­tions, a draft will or a ​‘tri­al run’. Evi­dence must sup­port that the deceased want­ed the par­tic­u­lar doc­u­ment to be his or her final Will and did not want to make any changes to the document.

In Kemp v Find­lay, the execu­tor named in the 2019 doc­u­ment relied upon con­tem­po­ra­ne­ous doc­u­ments such as email cor­re­spon­dence to estab­lish that Mr Find­lay actu­al­ly intend­ed for the 2019 doc­u­ment to form his will. The Court con­sid­ered an email sent from Mr Find­lay to the execu­tor named in the 2019 doc­u­ment dat­ed 5 June 2019, where­by he attached the 2019 doc­u­ment and explained that ​“This is my new will. I am yet to get it signed in front of [his lawyer] but I intend [t]o”.

It is also rel­e­vant in prov­ing the inten­tion behind an infor­mal will to estab­lish the date in which it was to com­mence oper­a­tion. In Kemp v Find­lay, evi­dence estab­lished that the 2019 doc­u­ment was to begin oper­a­tion on 5 June 2019 based on the date dis­played on the actu­al doc­u­ment, as well as Mr Find­lay’s email, of the same date, to the execu­tor named in the doc­u­ment stat­ing, ​“If I went under a bus between now and then my wish­es would at least be clear.”

Aware­ness of the pro­ce­dure for exe­cu­tion of a will and pre­vi­ous will-mak­ing habits

Evi­dence about a per­son­’s aware­ness of the for­mal­i­ties for exe­cut­ing a valid will can form part of the Court’s assess­ment of whether the per­son intend­ed an infor­mal doc­u­ment to be their will. A lack of under­stand­ing as to the require­ments may allow the Court to more read­i­ly infer that the per­son intend­ed for the infor­mal doc­u­ment to have the legal effect of a will fol­low­ing their death.

Sim­i­lar­ly, a per­son­’s pre­vi­ous will-mak­ing habits may also be con­sid­ered in deter­min­ing the inten­tions behind draft­ing an infor­mal will. If a per­son has made pre­vi­ous wills that are for­mal­ly draft­ed and exe­cut­ed pur­suant to the Act’s require­ments, it is more like­ly that the Court would expect their will to com­ply with for­mal requirements. 

No evi­dence showed that Mr Find­lay was well-versed in exe­cut­ing a valid will. Although he was aware of the require­ments for sig­na­ture in front of a wit­ness through exe­cu­tion of the 2015 will, there was noth­ing to sug­gest that he had been giv­en an expla­na­tion as to how a will is valid­ly exe­cut­ed and he was not a well versed or pro­lif­ic will maker.

Find­ings and case significance

The Court grant­ed relief to the execu­tor named in the 2019 doc­u­ment under sec­tion 8(2)(a) of the Act because the Court was sat­is­fied that Mr Find­lay intend­ed the 2019 doc­u­ment to form his final will over the 2015 will. 

While in this case it was found that the infor­mal will pre­vailed, it is gen­er­al­ly much bet­ter to avoid the need for dis­putes about whether an infor­mal or for­mal will is to oper­ate for your estate. Court pro­ceed­ings are time con­sum­ing, risky, expen­sive and uncer­tain. It is always bet­ter to try to avoid such dis­putes by organ­is­ing your affairs with clear doc­u­ments that meet the for­mal require­ments set out in the Act to ensure your tes­ta­men­tary wish­es are ful­filled fol­low­ing death.