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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.