Kemp v Findlay [2024] NSWSC 902

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 Act 2006 (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 Laura Angius; 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