As well as making your wishes clear, having a valid will might prevent your personal affairs from being splashed through the news as a recent high-profile case has demonstrated.
The Supreme Court of NSW this week handed down a decision in relation to the estate of the late Sydney businessman Andrew Findlay, who died in a tragic boating accident and left a $20 million estate.
The Proceedings
Mr Findlay’s former de-facto partner and mother of his three young children, Elizabeth Kemp, asked the court to recognise the will he made in 2015, prior to their separation, leaving the entire estate to her. In Ms Kemp’s favour, this will complied with the strict witnessing requirements for wills in NSW.
Mr Findlay’s family asked the court to recognise a subsequent but technically invalid will he made in 2019 leaving his entire estate to his three children. This will was never signed by Mr Findlay nor independently witnessed but was made at a time following Mr Findlay and Ms Kemp’s separation.
While Ms Kemp’s claim was ultimately unsuccessful, it may never have come to be made in the first place if Mr Findlay had ensured that his will was validly executed.
In the parties’ family law separation, subject to the approval of the Supreme Court, the parties mutually and severally released each other of their rights to make an application in relation to the estate or the notional estate of the other.
In handing down judgment Her Honour Justice Rees said at [176] and [178]:
“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… Having apparently undertaken some online research, including on a website www.divorceresource.com, Mr Findlay took the prudent step of changing his will and leaving his estate to his children. Such a step might be thought unremarkable in the circumstances. Ms Kemp did likewise…
I conclude that Mr Findlay thought that the 2019 Document would ‘do the job’ even if it had not been signed. Whilst Mr Findlay was not aware of the legal niceties of making a valid will, as a businessperson, he proceeded to make the necessary changes proficiently and promptly informed key stakeholders of what he had done.”
What can you do if your circumstances change?
In the case of a change in your life circumstances such as separation from a partner or spouse, you should take the following steps:
- seek legal advice as to how to restructure your estate planning and any other relevant documents;
- ensure that your will is signed and correctly witnessed. In NSW, your will must be witnessed by two people over the age of 18. These witnesses should not be people who are entitled to any part of your estate under the will. If the will is ever in dispute, these people may have to give evidence that you were mentally capable of making the will at the time you made it. Your solicitor will take notes on this at the time of your appointment;
- seek any financial advice as to the effect of your will in terms of taxation.
- review your will in the event that you find a new partner, have any more children, or experience any other major change in your circumstances;
- review any binding death benefit nominations made for your superannuation.
Litigation over your estate will be extremely expensive and stressful for everyone involved, and making a will is a quick and pain-free process in comparison.
