Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Kemp v Findlay [2025] NSWCA 46 Hearing dates: 21 February 2025 Date of orders: 27 March 2025 Decision date: 27 March 2025 Before: Ward P at [1]; Leeming JA at [233]; Ball JA at [234] Decision: 1. Appeal be dismissed.
2. The appellant is to pay the costs of the respondent of the appeal.
3. To the extent the respondent’s costs are not otherwise satisfied by Order 2, the respondent be indemnified out of the estate of the deceased with regard to his costs.
Catchwords: SUCCESSION – informal wills – where deceased amended will leaving estate to children but did not comply with formalities required for a valid legal will – where deceased emailed “new will” to new executor – where deceased dies in boating accident in 2023 – where former de facto partner seeks probate of earlier signed will leaving estate to her – whether primary judge erred in determining that deceased intended for the amended will to form his will for purpose of requirements in s 8 of the Succession Act 2006 (NSW) – whether primary judge erred in concluding that deceased was not aware that will had to be executed and witnessed to be valid – whether primary judge erred in finding that relationship between the appellant and deceased had been definitively terminated in May 2019 – whether primary judge erred in inferring that deceased had told the appellant about the amended will immediately after it was made
COSTS – whether costs of proceedings at first instance be paid of out of deceased’s estate – whether primary judge erred in determining that appellant pay 75% of respondent’s costs
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW), ss 6, 8
Uniform Procedure Rules 2005 (NSW), r 51.18
Cases Cited: Application of Brown, Estate of Springfield (1991) 23 NSWLR 535
Application of Eunice Helen Tristram [2012] NSWSC 657
Chant v Curcuruto; Chant v Curcuruto (No 2) [2021] NSWSC 882
Costa v The Public Trustee of NSW [2008] NSWCA 223; (2008) 1 ASTLR 56
Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895
Etherton v Mitchelmore [2024] NSWSC 170
Hall v Carney (No 2) [2012] SASCFC 105
Hatsatouris v Hatsatouris [2001] NSWCA 408
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378;(1983) 53 LGRA 325
In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446
Kemp v Findlay [2024] NSWSC 902
Kemp v Findlay (No 2) [2024] NSWSC 1157
Kuhl v Zurich Financial Services Australia Limited (2011) 243 CLR 361; [2011] HCA 11
National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees, Late of Strathfield [2011] NSWSC 559
NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872
Re Estate of Paul Francis Hodges; Shorter v…
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- AGLC
- Kemp v Findlay [2025] NSWCA 46
- Case
- [2025] NSWCA 46
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge had erred in determining that the deceased intended the emailed document to constitute his will for the purposes of section 8 of the *Succession Act 2006* (NSW), whether the primary judge erred in concluding that the deceased was unaware that a will needed to be executed and witnessed to be valid, and whether the primary judge erred in finding that the relationship between the appellant and the deceased had definitively terminated in May 2019 and in inferring that the deceased had informed the appellant about the amended will shortly after its creation. The appeal also concerned the primary judge's orders regarding the costs of the proceedings at first instance.
The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The Court reasoned that the primary judge had correctly applied the principles for determining the validity of an informal will, particularly the requirement for the deceased to have intended the document to operate as their will. The Court found no error in the primary judge's assessment of the deceased's knowledge of the formal requirements for a will or in the findings concerning the termination of the relationship and the communication of the amended will. The Court also upheld the primary judge's costs order, which directed that the appellant pay 75% of the respondent's costs at first instance.
The Court ordered that the appeal be dismissed and that the appellant pay the costs of the respondent of the appeal. To the extent that the respondent's costs were not satisfied by this order, the respondent was to be indemnified out of the estate of the deceased with regard to his costs.
Orders
Orders of the court
1. Appeal be dismissed.
2. The appellant is to pay the costs of the respondent of the appeal.
3. To the extent the respondent’s costs are not otherwise satisfied by Order 2, the respondent be indemnified out of the estate of the deceased with regard to his costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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