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Kemp v Findlay

Kemp v Findlay

Case [2024] NSWSC 902 26 July 2024

Informal Wills

Repudiation & Termination

Contract Formation

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Kemp v Findlay [2024] NSWSC 902
Hearing dates: 8-9, 11 July 2024
Date of orders: 26 July 2024
Decision date: 26 July 2024
Jurisdiction: Equity - Expedition List
Before: Rees J
Decision:
Declare pursuant to s 8 of the Succession Act2006 (NSW) that the electronic Microsoft word document titled “ADF WILL NEW PLK” dated 5 June 2019 constitutes the last will of ANDREW DAVID FINDLAY and grant Probate in solemn form to David William Findlay, the Executor named therein.

Catchwords:
SUCCESSION – informal wills – s 8(2)(a), Succession Act 2006 (NSW) – principles at [143]-[153] – businessman makes will leaving $13.5M estate to defacto wife – couple separate in 2019 – both amend wills, leaving estate to their children instead – businessman amends will on computer only but not printed or signed – tells defacto wife, new executor and family law solicitor – emails Microsoft Word document to new executor – settles protracted family law proceedings including mutual release of claims on estates – difficult post-separation relationship with former defacto – happy in new relationship – dies in boating accident in 2023 – former defacto seeks probate of earlier signed will – whether businessman intended Microsoft Word document “to form his … will” – so satisfied.

Legislation Cited:
Succession Act 2006 (NSW) ss 6, 8(2)(a)

Cases Cited:
Bell v Crewes [2011] NSWSC 1159
Estate of LauraAngius; Angius v Angius [2013] NSWSC 1895
Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900
Fast v Rockman [2013] VSC 18
Hatsatouris v Hatsatouris [2001] NSWCA 408
Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 160
Macey v Finch [2002] NSWSC 933
National Australia Trustees Ltd v Fazey [2011] NSWSC 559
Oreski v Ikac [2008] WASCA 220
Re Application of Tristram [2012] NSWSC 657
Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446
Re Estate of Schwartzkopff (2006) 94 SASR 465; [2006] SASC 131
Re the Estate of Kiepas (dec’d); Twemlow v Kiepas [2004] NSWSC 452
Re Yu (2013) 11 ASTLR 490; [2013] QSC 322
Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22
Smith v O’Neill [2014] NSWSC 1119
The Application of Kencalo (In the Estate of Ruth Buharoff) (Unreported, Supreme Court of New South Wales, 23 October 1991)
Yazbek v Yazbek [2012] NSWSC 594

Category: Principal judgment
Parties: Elizabeth Anne Kemp (Plaintiff)
David William Findlay (Defendant)
Representation: Counsel:
MK Condon SC / PG Bolster (Plaintiff)
Mr L Ellison SC (Defendant)
Solicitors:
Keypoint Law (Plaintiff)
L Rundle & Co Solicitors (Defendant)

File Number(s): 2024/108017

JUDGMENT

HER HONOUR: In July 2023, Andrew Findlay tragically died in a boating accident off Sydney Harbour, aged 50, leaving three children aged from 6 to 9. Mr Findlay had executed a will in 2015 (2015 Will), leaving his estate to the mother of his children, being the plaintiff Elizabeth Kemp. The plaintiff seeks a grant of probate of this will. In 2019, however, the couple’s relationship…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kemp v Findlay

Details

AGLC: Kemp v Findlay [2024] NSWSC 902
Case: [2024] NSWSC 902
Decision Date: 26 July 2024

CaseChat Overview and Summary

The case of Kemp v Findlay involves a dispute over the estate of a businessman who died in a boating accident in 2023. The businessman had made an informal will, leaving his $13.5 million estate to his defacto wife. However, the couple separated in 2019, after which both parties amended their wills to leave their estates to their children. The businessman made changes to his will on his computer but did not print or sign the document. Despite this, he informed his defacto wife, who was also the new executor of his will, and his family law solicitor of the changes. He emailed the Microsoft Word document to the executor, who settled the protracted family law proceedings with a mutual release of claims on both estates. The businessman had a difficult relationship with his former defacto but was content in his new relationship. Upon his death, the former defacto sought to obtain probate of the earlier signed will.

The legal issues the court had to decide were whether the Microsoft Word document that the businessman emailed to his executor constituted a valid will under section 8(2)(a) of the Succession Act 2006 (NSW). The court had to determine whether the businessman intended the document to form his will and whether the document was satisfied the requirements of the statute. The court considered the principles set out in previous cases at [143]-[153] to make its decision.

The court found that the businessman had indeed intended the Microsoft Word document to form his will. The court noted that the businessman had told his defacto wife, the executor, and the family law solicitor about the changes he made to his will. The court also considered that the businessman had settled the family law proceedings with a mutual release of claims on both estates, indicating that he had intended the changes to his will to be final. The court found that the businessman had satisfied the requirements of section 8(2)(a) of the Succession Act 2006 (NSW) and that the Microsoft Word document was a valid will.

As a result, the court granted probate of the Microsoft Word document as the businessman's will. The former defacto's application for probate of the earlier signed will was dismissed. The court ordered that the estate be distributed according to the terms of the Microsoft Word document, leaving the $13.5 million estate to the businessman's children.

Orders