Judgements in high-profile news stories about Wills such as the contested estate of Andrew Findlay, show us that communicating with loved ones about estate planning and your testamentary wishes is essential. When documenting your intentions, it is vital to seek assistance from an experienced estate planning solicitor to make a legally binding Will to avoid costly and protracted disputes about your estate after you die, writes Attwood Marshall Lawyers Special Counsel in Estate Litigation, April Kennedy.
The recent legal battle over Andrew Findlay’s ‘informal’ Will has reached a conclusion, with the court ultimately accepting the informal document for probate.
While the outcome is rare, it raises important questions about the validity of informal Wills and the potential pitfalls they present.
In this article, we explore the court’s reasoning behind this decision and why, despite the unusual case, relying on informal documents in estate planning can lead to significant legal challenges and uncertainty for your loved ones.
Andrew Findlay’s contested estate
In the news recently was the dispute over Sydney based businessman, Andrew Findlay’s $14 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, Ms Kemp 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 May 2019. Findlay paid Kemp $4.6 million in the family law settlement as well as child maintenance of $3,000 a month (plus school fees, extra-curricular expenses, health insurance and medical expenses), spousal support of $2,500 a month until 31 January 2024 and agreed to provide an expenses-paid car. Ms Kemp relinquished any interest in Mr Findlay’s assets, including the Centennial Park house, various companies and their family superannuation fund.
Findlay’s 2019 informal Will, which was not signed or witnessed, expressed his wish that his three children should inherit his estate, all of whom are under the age of 10. He 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.
The court heard Mr Findlay emailed his cousin with a draft copy of his Will stating, “I just sent you the will as I haven’t changed it with my lawyer yet. If I went under a bus between now and then my wishes would at least be clear.” Findlay is also alleged to have told his solicitor he had changed his Will.
After a three-day court hearing and one year after his death, Judge Kelly Rees found that although the 2019 Will was unsigned and not witnessed, she was “satisfied Mr Findlay intended this document to form his will”.
“There was a very good reason for Mr Findlay to make a new will at the time that he did. Mr Findlay was an experienced businessman who had accumulated significant wealth… he had become appraised, in no uncertain terms, that his relationship with Ms Kemp was over.”
Judge Kelly Rees
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 with an estate planning lawyer whenever there is a big change in your family circumstances, such as a birth, death, separation, or a marriage.
If a Will is not properly prepared, then it can be stressful and heartbreaking 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 ultimately utilize funds from the estate and take away from their inheritance.
In the case of Andrew Findlay, the judge was satisfied Findlay intended the 2019 ‘informal’ Will document to be his valid Will. However, people should be aware that courts usually tend to take a cautious approach where ‘informal’ Wills are concerned and will only allow an informal document to be admitted to probate in limited circumstances.
‘Informal’ Wills can raise many questions around the validity of the document, and a great deal of evidence needs to be presented to the court about how that document came into existence, and the state of mind of the person who made it.
In the Findlay case, 25 people gave evidence including friends and family of Kemp and Findlay, as well as a counsellor and psychotherapist, au pair, management consultant, accountant, solicitor, computer forensics and IT specialist, and a cyber security and digital forensic specialist. However, in most cases, providing this kind of evidence is difficult, and oftentimes, there is not enough evidence to explain how the deceased made the document and under what circumstances the document was prepared.
‘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 prepared 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 or coercive control.
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.
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.
Read more: Estate Planning and Testamentary Trust Wills
Attwood Marshall Lawyers – experts in estate litigation
Disputes over 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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