Kemp v Findlay

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.