Law Talks Episode: Case in Review – Andrew Findlay’s Informal Will and $14 Million Estate

Robyn: Good morning and welcome to 4CRB’s Law Talks. And today we’re going to discuss a high-profile case that’s been making waves recently involving Sydney businessman Andrew Findlay and a family dispute over his estate. Now this case teaches us some valuable lessons about the importance of proper estate planning.

And with me today is April Kennedy, Special Counsel in Estate Litigation from Attwood Marshall Lawyers. April, welcome to the show. 

April: Thank you for having me, Robyn.

Robyn: So, Andrew Findlay’s case has been all over the news. His will was contested, and the court ultimately accepted an informal will, which wasn’t signed or witnessed. Can you talk us through the main details of this particular case? 

April: Yes, I can. So, this is a very interesting case, and it’s been very interesting to see it play out in the courtroom, because it is very rare for informal wills to be accepted by a court.

So, to give you the background details, Andrew Findlay was a successful businessman in Sydney.

He tragically passed away in a boating accident last year. His boat was, they believe, hit by a freak wave and he drowned. He left three young children, who were under the age of 10. His estate was worth about 14 million dollars. And so it became the subject of a legal dispute.

Robyn: Okay.

April: Now, the main issues were in relation to two wills that Andrew Findlay had left behind.

One was a formal will. It was made in 2015. So, it was signed, it was witnessed in accordance with all of the rules in the Succession Act, and it named Findlay’s former partner, Liz Kemp, as the sole beneficiary and executor of his estate. Now, at the time, they were in a relationship, and they had children together.

Andrew Findlay also left another informal will. So, it wasn’t signed or witnessed. It was actually a word document on his computer. It was made in 2019 after his separation from Ms. Kemp and it left everything to his three children, who were all minors. So, some context, Findlay and Kemp, after they separated in about mid-2019, they had a property settlement and Findlay paid Kemp, 4.6 million as part of the property settlement. There was also child maintenance of about three thousand dollars a month, plus school fees, extracurricular expenses, spousal support, and that was to be paid until the 31st of January this year. As part of that settlement, she relinquished any interest in relation to Findlay’s assets.

So that included his properties, his companies and superannuation fund.

Robyn: Yep. 

April: But despite this, if the 2015 will was to be upheld, it would have seen Ms Kemp benefit substantially and inherit all of Findlay’s estate as a sole beneficiary. This is in despite of their separation and their family law property settlement.

Robyn: Okay.

April: Now, the informal will, that was made in 2019, shortly after Kemp and Findlay separated, this was the, this is what came up as the main issue in dispute. It was prepared by Mr. Findlay, it was sent via email in June 2019 to his cousin David, who was the defendant, who was defending the estate in these proceedings.

And it was not signed, it wasn’t witnessed, but the email said, I just sent you the will, I haven’t changed it with my lawyer yet. If I went under a bus between now and then, at least my wishes would be clear. 

So, Findlay’s family relied heavily on some representations he had made to a number of different people to argue that the informal will made in 2019, that left his entire estate to his three young children be recognized as his last will instead of the 2015 will which left everything to his ex-partner.

So, after a very long and I imagine a very costly dispute, court case, the judge agreed, and ruled in favour of the informal will. And Ms. Kemp was ordered to pay the estate’s costs, which is quite an extraordinary outcome.

Robyn: Yeah, it is a pretty rare outcome, isn’t it, for the court to accept an informal will?

April: It is. And the reason for that is there’s usually a lack of evidence. And the court, so because of that, the courts are very cautious when it comes to informal wills. They tend to allow informal wills through like this in very limited circumstances. And in this case, the judge was satisfied that this document that Mr. Findlay had left behind on his computer intended to be his last will.

It revoked all the previous wills, and that’s even though it wasn’t signed or wasn’t witnessed. And I think what makes this case distinguishable from other cases that involve informal wills are that, this is a very peculiar set of circumstances for this particular case.

There were a number of witnesses who were available to give evidence. There were 25 people who gave evidence in these proceedings.  It also involved and needed to consider the family law proceeding. So, the fact that Ms. Kemp had already received a 4. 6-million-dollar property settlement and an entitlement or payments that were made by Mr. Findlay pursuant to that agreement. There were also, there was also evidence from a number of different sources about Mr. Findlay saying to them that he had already changed his will. So, he had had the mindset that it had been done. He just hadn’t got around to getting it signed formally.

Robyn: Yeah, okay.

April: And there was also evidence that Mr. Findlay sent the document to Ms. Kemp in 2019 and said this is my new will and that she was aware of it since at least 2019. 

So, there were a number of different factors that needed to be considered and were given good consideration in this case. And like I said, there were 25 people that gave evidence.

So, this was friends and family of both Kemp and Findlay. There was a counsellor, a psychotherapist, an au pair, management consultant, accountants, solicitors, computer forensics, IT specialists, cyber security and digital forensics specialists.

Robyn: Sounds expensive. 

April: It would have been very expensive. I shudder to think what the legal costs would have been on both sides in this matter.

So, there was a great deal of evidence in these proceedings and generally you don’t find this type of evidence in an estate that is much smaller.  And, I mean, this is a 14-million-dollar estate, so this is not a modest estate at the end of the day. So evidence is crucial, and typically giving or obtaining this kind of evidence in court proceedings like this can be very expensive.

And that’s why it’s often not done, in a smaller estate. So, you really have to find all of the evidence about how and why this document came into effect, and that’s not usually available. And in this case it was.  So that’s what makes this case, you know, it is a pretty rare outcome. And it’s unusual to have so much evidence about the document.

Robyn: And April, what are the risks that people should be aware of when it comes to an informal will like this one? 

April: Well, one are costs, like I’ve just said. So, you need to be aware that your costs aren’t just going to be paid out of the estate because you bring it forward. You really need to weigh up, is this worthwhile? Is it going to be successful? There’s no guaranteed outcome that your costs are going to be paid or covered by the estate.

So, that’s one consideration. There’s also the, the uncertainty. So I suppose from the perspective of someone who has left an informal will,  there’s going to be uncertainty for your family.

They aren’t going to know how this is going to be resolved, what they’re entitled to, how long it’s all going to take. So it’s going to create heartache for the people that you leave behind if you don’t do your will properly or if you leave an informal will. And then relying on an informal will can be very risky.

You just don’t know how the court is going to decide the matter. They are some risks that really need to be considered and then even just looking at it from the bigger picture getting all that evidence and putting all of that forward  you know, are they going to be questions about capacity? Did the person have capacity when that will was made especially if they’re elderly?

So a lot of people don’t want that type of story or those questions about, their state of mind or even the state of mind of their family members to be questioned by strangers. So, there are a lot of risks.

Robyn: So, what can people do to avoid these kinds of disputes? 

April: So I think that’s pretty clear. And that is to have your will properly prepared.  Go to an experienced estate planning lawyer. It can save your loved ones a lot of stress and a lot of money. And just knowing, having that sense of certainty that your document is prepared properly.  There’s also going to be all of the file notes if there are any questions about capacity, a solicitor is going to have all of that evidence readily available. They’re going to take those notes. They’re going to have details about the estate asset. So, you don’t have to leave your family members rummaging around to find assets that, you know, may, you may not know about that’s all going to be available.

They’re going to structure or give advice about structuring the will properly to ensure that there are not going to be any disputes after that person passes away, but also, to minimize any disputes that might occur and also identify any disputes that might come up. A lot of people don’t realize that people have, well, their family members have rights to contest or challenge their will, so that will all be, available or that will all be advised when you go and see a solicitor. 

Robyn: Yeah, and it’s particularly important like this case when there’s significant changes in life such as divorces, separations, that kind of thing that’s a key time to make those changes to your will.

April: Yes, absolutely. Those key changes, the change in family dynamics, change in asset structure, those types of things. That’s when you really need to consider going and updating your will or getting your wills or your estate planning done.

Robyn: Yeah. And what about the executor and the trustee roles in a will? How important are those? 

April: They’re very important. And that’s one of the things that I think that people overlook, in disputes where we’re looking at informal wills and I think it’s a lot of, a lot of the time it’s overlooked even when doing your own estate planning. The executor is essentially the person who’s going to step into your shoes when you pass away, they are going to make the decisions. They are going to have the authority to deal with your assets after you pass away. So, you really need to be sure that the person you’re appointing is trustworthy and capable to carry out that role. And when there’s an informal will, there, there’s generally a dispute about who is the executor and trustee.

Take for instance, the Findlay case. In the 2015 will, Ms Kemp was the executor. In the 2019. Will, Mr. Findlay’s cousin was the executor. So that is worlds apart, really. So you want to make sure that you’re looking at, well, who’s going to be administering my role? Is that the person that I want? Because if it’s not, or if there’s a dispute, there might be an independent person who steps in to do that, so a solicitor who’s going to charge the estate to do that.

Or it’s going to be an additional cost. The solicitor or an independent person plays a crucial role in the administration of the estate where there’s a dispute because they can progress it. But it will be an additional cost.

So, it’s something that you really need to have a think about when you’re making your will.

Robyn: Yeah. And as you just shared, planning ahead is always the best strategy to avoid costly and contentious legal disputes in the future. And the Andrew Findlay estate dispute really shines a light on the consequences of not following the correct process when you need to update your will. 

April: Well, that’s right. These types of disputes are highly emotional, they’re stressful, and they can take years to resolve. You know, as well as the cost factor, so it’s a very fast-growing area of law, and that’s why it’s important to do the work beforehand.

Do the work and go to a solicitor, get the advice, so that you don’t leave your loved ones in a position where they need to fight over your will. I think that’s the key takeaway here. 

Robyn: Well, April, thank you so much for sharing your insights with us today. It’s clear that estate planning is more than just writing a will and getting trusted advice to ensure your wishes are protected and documented properly is the best strategy to keep your family out of courts after you’re gone.

April: Absolutely. Well, thank you for having me, Robyn, and letting me impart my wisdom for the listeners. 

Robyn: Thanks, April. You’ve been listening to Law Talks here on 4CRB, which you can hear every Friday morning from nine o’clock.