Intention & Informal Wills

Section 6 of the Succession Act 2006 (NSW) provides that a valid Will must be written and signed by the testator in the presence of two or more witnesses, with at least two of those witnesses attesting and signing the will in the testator’s presence. 

Background

Andrew Findlay passed away in a boating accident in July 2023, leaving behind three young children that he shared with his former de facto spouse, Elizabeth Kemp, and an estate valued at approximately $13.5 million. In 2015, Mr Findlay executed a will, appointing Ms Kemp as his estate’s sole executor and beneficiary.

In June 2019, following their separation, Mr Findlay attempted to change his Will by drafting a document appointing his cousin as executor and naming his three children as beneficiaries—but he did not print and execute the document before his passing.

Findlay and Kemp had separated in May 2019, and in June, Findlay consulted a family law solicitor, who provided a checklist with the first item being “change your will.” In 2021, they finalised their legal matters, with Kemp receiving a $4.6 million settlement, including child support and other financial benefits. The settlement also released both parties from future claims on Findlay’s estate.

Section 8 of the Act provides that when a testator fails to meet the formal requirements, the Court may waive the requirements for execution, alteration, or revocation of a Will if convinced the testator intended the document to serve as their Will.

A document merely outlining instructions, a draft will, or a “trial run ” is not enough. 

When determining the validity of an informal will, the Court must be satisfied that the testator intended the document to be their will. 

Evidence must support that the deceased wanted the document to be their final will and did not want to make any changes. The Court must be convinced that the testator actually intended that the document “operate” and “without more,” thereby constituting his or her will under section 8(2)(a) of the Act.

Section 8 of the Act outlines the standards that the Courts consider in determining whether a will that does not meet the above requirements should be treated as an informal will. Other than not being executed as per section 6 of the Succession Act 2006 (NSW), an informal will must be:

A Document

Section 21 of the Interpretation Act 1987 (NSW) broadly defines the term document to include any record of information. A series of cases have now involved electronic documents being accepted as informal wills. 

In Yazbek v Yazbek [2012] NSWSC 594, a document found on the deceased’s computer after their death was accepted for Probate as an informal will.

Which Purports to State the Testamentary Intentions of the Deceased

Testamentary intentions concern the distribution of one’s property upon death. Such intentions can be contrasted to make a gift that is not conditional on the death of the gift maker.

Intended by the Deceased to Form their Will

That the deceased intended the actual informal document itself to be their will.

The case of Rodny v Weisbord [2020] NSWCA 22 involved a will drafted for the deceased by her solicitor but never signed by her. After her death, her son tried to have the draft validated for Probate. The Court ruled that the deceased did not intend for the draft will to be her will, as it constituted no more than instructions or a note of her instructions.

The matter

Therefore, the question is not whether an unsigned document expresses the deceased’s wishes but whether it was intended to be their Will—a standard that is the most challenging to meet because the person whose intentions are being examined is no longer alive.

One situation in which this standard may be easily met is when a testator creates what they believed was a formal will, but by mistake or accident, it failed to meet the requirements of Section 6 of the Law. For instance, if a will that otherwise met the criteria had only been signed by one witness. Clearly, in such a situation, the testator intended the document to be their will; thus, this standard is easily overcome.

However, the task is more complicated regarding a document the testator knows does not meet the formal requirements but may have intended to operate as their Will. Further complicating matters is that documents can now exist in purely electronic form. Where a testator has approved of a will in an electronic form, and all left is for them to print and sign it, do they intend it to be their Will? Or is the contemplation of a further date on which they will print and sign enough to say they didn’t intend the electronic document to be their will?

NSW law does not definitively address these questions, and depending on the specific facts of a particular case, either conclusion is possible.

How Do Courts Determine the Deceased’s Intention?

In deciding whether the deceased intended the actual document to be their will, the Court may consider:

• any evidence related to how the testator executed the document ;
• any proof of the intentions of the deceased (including statements); and
• any other matter it deems relevant.

Section 8 of the Law offers a helpful safeguard for those who die suddenly or unexpectedly and have considered disposing of their assets but have not formalised their wishes. However, there remains a lot of uncertainty in the area of informal wills, especially as we progress further into the digital age. So, it is always best practice to keep an up-to-date and validly executed will in a safe place.

The court adheres to the precedent in Hatsatouris v Hatsatouris [2001] when considering whether to validate an informal will. According to this common law precedent, a document is likely to be considered a will if it complies with the following criteria:

• The informal will is a written or electronic document;
• The document embodies the testamentary intentions of the deceased and
• The court is convinced that the deceased intended the document to operate as their will.

The Supreme Court of NSW has dealt with numerous cases concerning the validity of informal wills.  

For example, in Borthwick v Mitchell [2017], a man in a hospital dictated his last wishes to his daughter, intending to execute a formal will later. The daughter transcribed these notes under the title “Dad’s wishes”.

The Supreme Court affirmed that this document constituted a valid informal will even though the testator did not sign the notes or read through them. The court determined that the deceased intended the notes to take immediate effect as a “Stopgap” will until he could formalise his testamentary arrangements.

There have also been several cases of individuals leaving unsigned testamentary documents on a computer, video, DVD, tape recording or another electronic device.

The primary legal issue for the Court to consider in Kemp v Findlay [2024] NSWSC 90 was whether Mr Findlay intended for the 2019 document to “form his…will” under section 8(2)(a) of the Act rather than the 2015 will. 

The Court relied on evidence to establish that

• the 2019 document was drafted to form the testator’s Will rather than express his testamentary intentions following his separation from Ms Kemp. 
• Whether Mr Findlay lacked knowledge of the formality requirements for executing a valid Will and 
• examine his previous habits of making wills.

In Kemp v Findlay, the executor named in the 2019 document relied on contemporary documents such as email correspondence to establish that Mr Findlay intended for the 2019 document to form his Will.

The Court considered an email from Mr Findlay to the executor named in the 2019 document, dated 5 June 2019, in which he attached the 2019 document and explained

“This is my new will. I have yet to get it signed in front of [his lawyer], but I intend [to].”

It is also relevant to prove the intention behind an informal will by establishing the date it would come into effect. Evidence showed that the 2019 document was to take effect on 5 June 2019, based on the date displayed on the actual document and Mr Findlay’s email of the same date to the executor named in the document, stating,

“If I went under a bus between now and then, my wishes would at least be clear.”

Awareness of the procedure for execution of a will and previous will-making habits

Evidence about a person’s awareness of the formalities for executing a valid will can be part of the Court’s assessment of whether they intended an informal document to be their Will.

A lack of understanding of the requirements may lead the Court to more readily infer that the person intended for the informal document to have the legal effect of a will after their passing.

Similarly, a person’s previous will-making habits may also be considered when determining the intentions behind drafting an informal will.

Decision

Judge Rees considered whether the unexecuted 2019 document met the legal requirements for a valid will. She highlighted that Findlay had drafted the will, unlike cases where a solicitor prepares a draft. Rees concluded that Findlay believed the 2019 document served as his will despite not being formally signed, as he had informed key people of its existence and intent. She determined that Findlay intended for the 2019 document to act as his will.

It is concluded that Mr Findlay believed the 2019 Document would serve its purpose even without being signed. Although Mr Findlay was unaware of the legal requirements for creating a valid will, as a businessman, he promptly and proficiently made the necessary changes and informed key stakeholders of his actions. Despite Ms Kemp’s argument that the absence of any reference to the 2019 Document or its execution in Mr Findlay’s various to-do lists in his notebooks was significant, it can also be viewed differently. Mr Findlay might not have noted it as he believed he had adequately dealt with the matter, considering the 2019 document to be ‘fit for purpose.’

Mr Findlay did not manage to have the 2019 Document printed and signed in the presence of two witnesses. This was another loose end overlooked in the turbulent years that followed, exacerbated by his struggles with organisation and focus. However, considering the document itself, the extent of Mr Findlay’s knowledge and understanding of the requirements for creating a valid Will, his statements to others, and the surrounding circumstances, it is established that in June 2019, Mr Findlay genuinely intended for the 2019 Document to function as his Will without any additional formality. Through his actions and words, Mr Findlay ‘adopted’ the document as his intended Will and referred to it as a will to those who needed to know. Mr Findlay intended the 2019 Document to serve as his Will.