NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR ELIZABETH ANNE KEMP V/S DAVID WILLIAM FINDLAY CASE

Australia, April 27 -- New South Wales Land and Environment Court issued text of the following judgement on March 27:

1. WARD P: This appeal challenges the decision by Rees J that an unsigned electronic word document (the 2019 Will) constituted the last will of Andrew David Findlay (the deceased) (see Kemp v Findlay [2024] NSWSC 902, the primary judgment). The appellant, Elizabeth Kemp, is the former partner of the deceased and the sole beneficiary under a will executed by the deceased (and duly witnessed) in 2015 (the 2015 Will). Under the 2019 Will, the whole of the deceased's estate was left to the couple's three infant children in equal shares. The respondent, David Findlay, is the deceased's cousin and the executor named in the 2019 Will.

2. Although there are a number of grounds of appeal (as set out below), the nub of the appellant's challenge to the primary judge's decision that the 2019 Will be admitted to probate is the contention (contrary to her Honour's findings) that the deceased knew that, to be legally valid, a will must be signed by the testator in the presence of two witnesses and, if that contention be accepted, the proposition that such a person cannot have held the requisite intention for the purposes of s 8(2)(a) of the Succession Act 2006 (NSW) (Succession Act) that an unsigned document (such as the electronic document in the present case) to constitute his or her final will.

3. There can be no dispute that the 2019 Will is a document that embodied testamentary intentions. The critical question is and was whether the deceased intended the 2019 Will, without more on his part, to have "present operation as a will" (see NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872 at [15] per White J, as his Honour then was).

4. For the reasons that follow I have concluded that her Honour did not err in finding that the 2019 Will was a valid informal will and should be admitted to probate. The appeal should be dismissed with costs.

Background

5. The background to the dispute is set out comprehensively in the primary judgment so I will here simply highlight relevant aspects of the chronology of events.

6. The appellant and the deceased had been in a de facto relationship from 2011 until 2019. There was some dispute as to the date of the couple's separation. The appellant had pleaded that the couple separated in May 2019 but then contended that the separation occurred at a later date (after the 2019 Will had been prepared) (see primary judgment at [11]-[13]). Her Honour found that the couple separated on or about 27 May 2019 ([12] of the primary judgment). That finding is no longer the subject of challenge by the appellant (Ground 3 of the grounds of appeal not being pressed - see AT 34.22-36).

7. The appellant does, however, point to an email communication from the deceased to her on 11 June 2019, not long after the 2019 Will was prepared by the deceased (see [16] below), and to the evidence given by Ms Monica Masero (a counsellor with whom the couple had a number of both individual and joint counselling sessions from May 2019), as indicating that the deceased's feelings as to the relationship with her were still unresolved as at the date the 2019 Will was prepared. In particular, it was submitted for the appellant that the 11 June 2019 email was not the communication of a man "who was firmly fixed on a complete destruction of his financial dealings with [the appellant] at that point of time" (see AT 20.22). I consider this in due course.

8. On 4 June 2019 (by reference to the metadata interrogated by the joint experts in this case), the deceased created the 2019 Will. The deceased did so by amending the provisions of an earlier draft Will (the 2013 Will) of which he had an electronic copy and ascribing to this new document the title "ADF WILL NEW PLK.doc". It is the respondent's belief that the initials "PLK" stood for "Post-Lizzie Kemp" (see his affidavit sworn 26 April 2024 at [10]). The document was stored in a "Personal" folder on the deceased's computer.

9. Unsurprisingly, since it was a modification of an earlier draft will, the 2019 Will has the structure and content of a formal will, including a revocation clause in relation to previous wills (cl 1) and an attestation clause contemplating that the execution of the will by the testator would be attested by two witnesses (the latter here being relied upon by the appellant as indicating an awareness by the deceased as to the formalities for execution of a valid will). The 2019 Will also contains (beneath the attestation clause) the details of the firm of solicitors who prepared the 2015 Will, presumably copied across from the coversheet of the earlier draft will. The appellant relies on this as indicating that the deceased contemplated that the solicitors would have some involvement in the execution and or storage of the 2019 Will. The date appearing on the 2019 Will in two places was 5 June 2019, perhaps reflecting an intention on the deceased's part to execute it on that day or an intention that it be operative from that day. The document was last saved on the deceased's computer at 5.53pm on 4 June 2019.

10. On 5 June 2019, the deceased emailed the 2019 Will to the respondent (as noted, the named executor in that document), with the message "[t]his is my new will. I am yet to get it signed in front of Emma Grimes (my lawyer) but I intend do [sic]".

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195d08e32ca79e0fce121616)

Disclaimer: Curated by HT Syndication.