In the age of digital documents and fast-paced lives, it is easy to put off the formalities of estate planning. However, the recent case of Kemp v Findlay [2025] NSWCA 46 serves as a reminder of why clear, legally sound wills are essential to spare loved ones the emotional and financial burden of legal disputes.
The Case: A Modern Will Gone Awry
Andrew Findlay died suddenly in a boating accident in 2023. Two years earlier, he had separated from his de facto partner, Elizabeth Kemp, and drafted a new will on his computer. The document left his estate to his three children and appointed his cousin as executor. Findlay emailed the draft to his cousin, expressing his intention for it to be his new will, pending formal legal execution.
But he never signed it.
After his death, Ms Kemp contested the 2019 document, arguing it was not a valid will. The matter escalated to the NSW Court of Appeal, which ultimately upheld the decision to grant probate to the unsigned electronic document. The court relied on section 8 of the Succession Act 2006 (NSW), which allows informal wills to be recognised if there is evidence the deceased intended the document to serve as their final testament.
While the court validated the will, the legal battle was costly and stressful. Ms Kemp was ordered to pay 75% of the respondent's legal costs, a steep price for a preventable dispute.
The Legal Lessons
This case highlights some critical lessons for anyone thinking about their legacy:
- Intent isn't enough, formality matters
Even though the court accepted Mr Findlay's draft Will as valid, the process was far from straightforward. If he had simply signed the document with witnesses present, as required by law, the entire dispute could have been avoided. - Digital wills are a legal grey area
While courts are increasingly willing to consider electronic documents, each case turns on its specific facts. Not every email or Word document will pass legal muster. The safest route is still a formally executed, paper-based will. - Estate planning Is not just for the elderly
Mr Findlay was not old, and his death was unexpected. This case is a stark reminder that none of us know what is around the corner. Estate planning is not just for retirees, it is for anyone who wants to protect their loved ones from uncertainty. - The Cost of disputes is high
Even when the courts resolve things, legal battles over estates can be expensive, emotionally draining, and time-consuming. A properly drafted and executed will can provide peace of mind and a clear roadmap for your family when they need it most.
Get your documents prepared at McCarthy Durie Lawyers
At McCarthy Durie Lawyers, we understand the importance of getting your estate planning right the first time. Our experienced team can help you:
- draft legally valid wills tailored to your circumstances;
- Establish Enduring Powers of Attorney and Advance Health Directives, and
- Structure your estate to minimise tax and avoid or reduce the change of future disputes.
With decades of experience in wills and estates law, we take the time to understand your unique needs and offer practical, personalised advice.
Contact the Estate Planning Team at McCarthy Durie Lawyers today and take the first step toward peace of mind for you and your loved ones.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
