Can an Unsigned Will Still Count? Lessons from Kemp v Findlay [2025] (NSWCA 46)

When Andrew Findlay passed away, he left behind a legal dilemma: an updated will that was never signed, sparking an intense court battle between family members and former partners. The NSW Court of Appeal’s recent decision in Kemp v Findlay serves as a stark reminder about the dangers of relying on informal or incomplete estate documents. Discover why proper execution, clear communication, and regular updates to estate plans are critical—avoiding costly, emotional, and lengthy litigation.

Could your clients be at risk? Read on to learn the key takeaways from this significant case.

Key Details of the Case

1. Background: Andrew Findlay, the deceased, had a formal will from 2015 that left his estate to his then-partner, Elizabeth Kemp. After their separation in 2019, he created a new document (the "2019 Will") leaving his estate to his three children and appointing his cousin, David Findlay, as executor. However, this document was never signed or witnessed.

2. The Dispute: Following Mr Findlay’s death in 2023, Ms Kemp sought probate of the 2015 Will, while David Findlay sought probate of the 2019 Will under section 8 of the Succession Act 2006 (NSW). This section allows informal documents to be admitted to probate if it can be shown that the deceased intended them to operate as their will.

3. Court Findings: The Court upheld the primary judge’s decision to admit the 2019 Will to probate, concluding that: The 2019 Will reflected Mr Findlay’s testamentary intentions. His actions and communications showed he intended the document to operate as his will, even though it was not formally executed. While Mr Findlay likely intended to sign the document formally, his failure to do so did not negate his intention for it to be his will.

4. Costs: The Court ordered Ms Kemp to pay 75% of David Findlay’s legal costs, finding that her litigation was driven by personal motives and would have disinherited her children.

   
   

This case offers several important lessons for advisers and individuals:

1. Formal Execution is Crucial: While informal wills can sometimes be admitted under section 8 of the Succession Act 2006 (NSW), relying on this provision creates uncertainty and increases the risk of disputes. Advisers should stress the importance of signing and witnessing wills properly.

2. Clear Communication of Intentions: Mr Findlay’s failure to clearly communicate his intentions to key parties, including his solicitor and family, contributed to the dispute. Clients should ensure their wishes are well-documented and shared with relevant stakeholders.

3. Regular Updates to Estate Plans: Life changes, such as separations or new relationships, require updates to estate plans. Advisers should encourage clients to review their wills regularly to reflect their current circumstances.

4. Avoid Informal Documents: Drafts or unsigned documents can create confusion and disputes. Clients should avoid relying on such documents and ensure all testamentary documents are properly executed and stored securely.

5. Minimise Litigation Risks: Disputes like this one can significantly reduce the value of an estate due to legal costs. Comprehensive estate planning can help avoid such conflicts and protect beneficiaries’ interests.

Conclusion

Kemp v Findlay underscores the importance of proper estate planning. Advisers should educate clients on the legal requirements for valid wills, the risks of informal documents, and the benefits of regular reviews. By taking proactive steps, advisers can help clients ensure their wishes are respected and avoid unnecessary disputes.