Take away points:
Always ensure your Will:
- is up to date;
- is in writing and signed in accordance with the current law. This will avoid uncertainty and a possible costly court case.
Facts:
In 2023 a tragic boating accident in Sydney Harbour claimed the life of 50-year-old technology entrepreneur, Andrew Findlay, leaving behind his three young children and a substantial estate valued at approximately $13.5 million.
By the terms of his last signed 2015 Will, the entrepreneur’s estate was initially set to be inherited by his former partner, Elizabeth Kemp.
Issues:
In 2019, four years before his death, the relationship had ended between the entrepreneur and Ms Kemp and he changed his will. Using his computer, he amended his will, leaving his estate to his children (the 2019 “will”). He emailed the amended will to his cousin (and new executor) which said, “This is my new will. If I went under a bus between now and then my wishes will at least be clear.”
The 2019 ‘will’ had not been printed or signed. Yet, it was argued that the entrepreneur’s intent was unambiguous. He wanted his estate to pass to his children.
Ms Kemp argued that the 2015 Will be upheld.
The Court had to decide whether the digital document on the computer was a valid will under the NSW law.
A Court can permit recognition of a ‘Will’ that fails to meet the traditional requirements if the Will maker’s intention was clear (Section 8, NSW Succession Act 2006).
The requirements under Section 6 of the NSW Succession Act for a valid Will are that it is in writing and signed in the presence of two witnesses.
Hearing:
The matter was heard before the Court. There was a substantial body of evidence with 25 affidavits and 2 expert witness reports.
Ms Kemp gave evidence that she had maintained a relationship of sorts with the deceased during 2019 with its ups and downs. The entrepreneur drafted the 2019 ‘will’ on the computer during a particular turbulent time in their relationship. He was an intelligent man and knew that a will had to be in writing and signed with witnesses to be valid. By not attending to this was evidence that the contents of the 2019 ‘will’ were not his final wishes.
Ms Kemp had also made a similar will in 2019 leaving her estate to her children.
In addition, she received $4.6 million plus child and spousal maintenance when family law proceedings finalised in 2021.
Decision:
After considering all of the evidence, the Court found in favour of the defendant and granted probate on the 2019 will – Ms Kemp lost. The entrepreneur’s children were to inherit his estate.
Ms Kemp was ordered to pay the defendant’s legal costs. On appeal regarding costs only, Ms Kemp was ordered to pay 75% of the defendant’s costs. Still a significant sum.
The case in full can be found at https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2024/902.html