Do you find it difficult to talk about what will happen after you die? Learn from high-profile news stories about Wills, such as the contested estate of Andrew Findlay. Start conversations with your loved ones and an estate planning solicitor to create a legally binding Will which leaves no room for doubt about your wishes, writes Attwood Marshall Lawyers Special Counsel in Estate Litigation, April Kennedy.
Within families, it’s common to wonder about what will happen when a parent dies. There can be uncertainty around if they have a Will drafted, where they keep it, and what their intentions are for their estate following their death. Finding a suitable platform to have these conversations is often difficult in the most harmonious families. However, for families with more complex dynamics, there can be a lot of mystery around these issues.
You might think writing down your wishes in a notepad, or on your computer, will suffice as a Will, however if the Will hasn’t been executed in accordance with the laws, it will likely be invalid and cause headaches for your loved ones who want to uphold your wishes after you die.
High-profile cases of contested estates in the news can offer a raft of lessons for those who do not have a Will, or as in the case we highlight below, have created an informal Will.
Andrew Findlay’s contested estate
In the news recently was the dispute over Sydney based businessman, Andrew Findlay’s $20 million dollar estate. Findlay, 51, died after a suspected freak wave hit the 7.8-metre Brig inflatable vessel he was in during a fishing expedition off Watsons Bay in July 2023. The incident also claimed the life of his friend, fellow angler and prominent Indigenous art dealer, Tim Klingender. Their untimely deaths reverberated through Sydney’s social, business and arts circles, with their funerals drawing hundreds of mourners and with it, intense media interest.
The dispute over his estate centres on Findlay’s former de facto partner of seven years and the mother of his three young children, Liz Kemp. After his death, Liz began legal proceedings against Findlay’s family to have a 2015 Will, which names her as sole executor and beneficiary, and had been witnessed and signed before a solicitor, recognised by the court.
Findlay’s family asked the court to instead recognise an informal Will Andrew Findlay wrote after his separation from Kemp in 2019.
Findlay’s 2019 informal Will, which was never signed nor witnessed, expressed his wish that his three children should inherit his estate, all of whom are under the age of 10. He also appointed his cousin, David Findlay, as the executor and trustee of the estate.
Findlay’s family point to an email containing the informal Will Andrew Findlay wrote to his cousin on June 5, 2019, where he declared that the document was his new Will. On June 11, 2019, Findlay is also alleged to have told his solicitor he had changed his Will.
Lessons to be learnt from Andrew Findlay’s estate dispute
As Findlay’s estate dispute demonstrates, once your Will is in place, you then need to review it regularly and amend it whenever there is a big change in your family circumstances, such as a birth, death, separation, or a marriage.
For a Will to be declared valid, all previous Wills must be revoked, and the new Will declared to be the last Will and testament of the Will-maker. The Will must be signed and dated by the Will-maker and it must be witnessed by two independent witnesses, in the presence of the Will-maker.
Anybody over the age of 18 can be a witness, though generally you should avoid any person who is named in the Will or a beneficiary. The Will must leave clear instructions as to how assets are to be distributed.
If a Will is not properly prepared, then it can be stressful and heart-breaking for the surviving family. They will end up spending significantly more in legal fees to ensure that their loved one’s wishes are properly carried out, which will take away from their inheritance. The Court tends to take a cautious approach where informal Wills are concerned and will only allow the informal document to be admitted to probate in limited circumstances. Informal Wills can raise many questions around the validity of the document, and you need to put a lot of evidence before the Court about how that document came into existence. That is often difficult because you might not know how the deceased made the document and under what circumstances the document was signed.
Informal Wills can generate a lot of questions around the document’s validity and the Will-maker’s capacity to make a Will. In contrast, when a Will is made by a lawyer, the lawyer ensures that the person was in the right state of mind to make the Will, they understood the contents and effect of the document and the assets they own, and they were not subject to undue influence.
A lawyer also keeps comprehensive file notes so that if the Will-maker’s capacity or intention is ever questioned, there is evidence to support the document. Usually, where an informal Will exists, there is no evidence of this kind, so it is up to the surviving family and beneficiaries to gather this information themselves. Even if the surviving loved ones get along, it can still take a long time and cost the estate to follow the legal process. If there is a dispute, like in this case, then the costs can skyrocket, and it can years for the litigation to be resolved.
Read more: Ambiguous Wills and the trouble they cause
Other considerations
A Will involves appointing an executor, which is an important consideration. An executor acts as a legally appointed representative to protect the assets of a deceased estate until they can be passed on to beneficiaries. A trustee is also important. A trustee is responsible for making decisions regarding the maintenance of the estate while it is being held in trust until it has been legally transferred to the beneficiaries.
Andrew Findlay’s former partner, Liz Kemp was named as the executor and beneficiary of the 2015 Will. In Andrew Findlay’s 2019, informal Will, his cousin David Findlay, was executor and trustee of the informal Will for Findlay’s three children.
An experienced estate planning lawyer will provide advice to help you make informed choices about your executor, trustees, and the strategies available to you for distributing your assets in the most effective way.
One of those strategies may be to look at creating a testamentary trust. Some people need greater protection than what a simple Will can provide. This is where exploring a testamentary trust may be beneficial to better protect your assets and your family.
Attwood Marshall Lawyers – experts in estate litigation
Contesting Wills are complex issues, where emotions are generally running high. It is essential to get the right advice from the start and have an experienced lawyer guide you through the dispute resolution process to ensure the matter can be resolved at the earliest opportunity. Trusting an experienced lawyer often means they can help carry the burden and reduce family conflict.
For expert advice on your rights in estate disputes, please get in touch with our Estate Litigation Department Manager Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or call 1800 621 071 any time.
Disputes can be drastically minimised, or avoided altogether, if individuals have a valid Will that appoints an executor and leaves clear instructions on how their estate should be dealt with upon their death.
For all your estate planning needs, please contact our Wills and Estates Department Manager Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 anytime.
Our team are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
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