Kemp v Findlay

The appeal concerned the validity of an informal will in New South Wales. The deceased had emailed a document intended as a new will to a new executor, but this document did not comply with the formal execution and witnessing requirements of the *Succession Act 2006* (NSW). The deceased's former de facto partner sought probate of an earlier, formally executed will that left her the estate. The primary judge had found that the deceased intended the emailed document to be his will, despite its informality, and had also made findings regarding the termination of the relationship between the appellant and the deceased, and the deceased's awareness of the formal requirements for a will. The appeal was heard by Ward P, Leeming and Ball JJA.

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.