Kemp v Findlay

Supreme Court of NSW|2024-07-11|Before: Rees J

JUDGMENT

HER HONOUR: In July 2023, Andrew Findlay tragically died in a boating accident off Sydney Harbour, aged 50, leaving three children aged from 6 to 9. Mr Findlay had executed a will in 2015 (2015 Will), leaving his estate to the mother of his children, being the plaintiff Elizabeth Kemp. The plaintiff seeks a grant of probate of this will. In 2019, however, the couple's relationship had foundered. Mr Findlay amended the will on his computer, leaving his estate to the children instead. He did not print nor execute the document. Mr Findlay's cousin, the defendant David Findlay, contends that Mr Findlay thereby revoked the 2015 Will and seeks a grant of probate of the electronic Microsoft Word document (2019 Document).
The issue is whether Mr Findlay intended the 2019 Document "to form his … will", as required by s 8(2)(a) of the Succession Act 2006 (NSW). In seeking to establish that proposition, the defendant relied on a short compass of facts: the fact that the 2019 Document was created shortly after his separation from Ms Kemp; that it was promptly emailed to the defendant with the explanation "This is my new will" and "If I went under a bus between now and then my wishes will at least be clear"; and that Mr Findlay told his family law solicitor a week later that he had changed his will.

Witnesses and documents

A considerable body of evidentiary material was relied upon by the parties. Some 25 affidavits were read plus two expert reports (and two joint expert reports). Some 1,500 pages of documents were tendered.
Turning to witnesses, Ms Kemp gave evidence and also relied on the evidence of counsellor and psychotherapist Monica Masero, au pair Jessica Denniff, management consultant William Berryman, friend Pieta Taylor and computer forensics and information technology specialist Rodney McKemmish. Ms Masero and Mr Berryman were cross-examined; no issues of credit arose.
Ms Kemp was cross-examined and was pleasant, poised and softly-spoken. She gave evidence in a guarded, careful, and sometimes evasive manner. Ms Kemp volunteered unkind remarks about the defendant and Mr Findlay's older sister, Katharine Jackson. Ms Kemp got into difficulty in cross-examination in three respects, in light of which I have approached her evidence with caution.
First, Ms Kemp said that, if there was any indication to her knowledge that Mr Findlay had made a new will, she would have put it in her affidavit. In answer to a notice to produce calling for production of communications with Mr Findlay from 1 January 2019 until his death, Ms Kemp said she went through documents looking for references to a will, "I've tried to go through everything I could," but had not located anything beyond what was in the court books. Ms Kemp failed to produce a damaging email, which contains a clear admission that she was aware that Mr Findlay had made the 2019 Document by at least February 2020: see [88].
Second, Ms Kemp failed to produce all wills made by her from 2013 until Mr Findlay's death, in answer to a notice to produce. Ms Kemp produced a will prepared in November 2013 and another in 2015. Ms Kemp agreed, however, "there could be one more that was made" but did not recall the date. Ms Kemp also reluctantly agreed that the will would have been created in the context of finalising her property affairs with Mr Findlay, "Perhaps, yes." Ms Kemp believed that the beneficiaries of this other will were her children.
In short, after her separation from Mr Findlay, Ms Kemp made a will leaving her estate to her children, that is, in the same terms as the 2019 Document. Why that will was not produced in answer to the notice to produce was not satisfactorily explained by the witness. I infer that Ms Kemp did not produce this other will as she thought it may undermine her challenge to the 2019 Document as reflecting Mr Findlay's testamentary intentions, where she had executed a document evidencing that the same testamentary intentions were held by herself at that time.
Third, and most importantly, Ms Kemp sought to shift the date of separation from May 2019 until sometime after Mr Findlay had prepared the 2019 Document. In her first affidavit, Ms Kemp said that she separated from Mr Findlay in about May 2019. In Ms Kemp's defence to the cross-claim, she pleaded that the couple separated in May 2019 although they continued to live under the same roof. The date of final separation was recorded as May 2019 in Family Court documents, which Ms Kemp signed in 2021 when legally represented.
The import of Ms Kemp's third affidavit, however, was that her relationship with Mr Findlay continued to an indefinite end-point, but certainly well after Mr Findlay prepared the 2019 Document. In her sixth affidavit, Ms Kemp said they separated later than May 2019, the date of separation recorded in the Family Court documents was an error, and she found the issue of when they separated to be "confusing". Where Ms Kemp had been involved in two family law matters before preparing affidavits in these proceedings (having divorced before commencing a relationship with Mr Findlay), it is unlikely that she was confused. In her seventh affidavit, Ms Kemp added that she and Mr Findlay maintained intimate relations in May and June 2019. I attach little weight to this evidence, where this detail was not mentioned in her preceding six affidavits. In cross-examination, Ms Kemp firmed up the date of separation, saying "we worked on trying to keep it together through May and through June." Ms Kemp's final position was, "I would say end of June". As will be seen, the couple separated on or about 27 May 2019.
The defendant gave evidence and also relied on the evidence of Ms Jackson, the Findlay family's solicitor Emma Grimes, Mr Findlay's family law solicitor Nabil Wahhab, Mr Findlay's accountant Justin Woods, Mr Findlay's friends Naomi Roth and Amanda Lintott, and cyber security and digital forensic specialist, Ajoy Ghosh. Mr Woods and Mr Ghosh were not required for cross-examination; I accept their evidence.
David Findlay distinguished himself by his dispassion, objectivity, accuracy and fairness. He did not overstate the extent of his knowledge. Ms Lintott falls into the same category: she is a pleasant, professional person who gave evidence in a fair and accurate manner. I accept their evidence.
Ms Grimes was a friend of the Findlay family for many years and her evidence had a slightly partisan quality. That said, no issues of credit arose. Her evidence was given carefully and I accept what she said. Mr Wahhab was a precisely spoken solicitor who was not shaken in cross-examination, maintaining that he had an actual recollection of Mr Findlay giving instructions that he had made a new will leaving everything to his children. I have accepted his evidence when viewed together with other evidence.
Ms Jackson was cross-examined. It was clear that there is no love lost between her and Ms Kemp. She did, however, make reasonable concessions. I have generally accepted her evidence. Naomi Roth gave evidence after reading a newspaper article about this case on 16 June 2024, and getting in touch with the Findlay family. I approached Ms Roth's evidence with caution, where she appeared keen to participate in the proceedings. That said, she was untouched in cross-examination and much of what she said Mr Findlay told her could only have come from him; I accept her evidence.
One person who did not give evidence was, obviously, Mr Findlay. His version of events was, however, tolerably clear as he kept detailed notebooks. Four of his 'regular' notebooks were in evidence, maintained from March 2019 to February 2020, in which Mr Findlay largely recorded his business pursuits including notes of meetings, 'to do' lists and plans. In May 2019, Mr Findlay also began a separate notebook, entitled "A daring new ending May 2019", kept in respect of counselling and self-improvement following the breakdown of his relationship with Ms Kemp. Finally, in June 2021 Mr Findlay began a notebook entitled "LPP", containing notes in respect of the dissolution of financial arrangements with his sisters.
Before considering the affidavit and oral evidence of witnesses, I read the contemporaneous documents in strict chronological order alongside a 'page turn' of corresponding entries in Mr Findlay's notebooks. From this exercise, a clear picture emerged of Mr Findlay's intentions at critical points in time. Mr Findlay clearly understood that his relationship with Ms Kemp had been definitively terminated by her in May 2019, this being a position from which Ms Kemp did not waiver in the years which followed. The fact that, from time to time thereafter, Mr Findlay made kind or loving remarks to Ms Kemp was because he sincerely aspired to conduct post-separation relations with the mother of his children in an ethical and generous spirit. Mr Findlay did not always succeed in this endeavour, but he certainly tried.
It is also, regrettably, necessary to record that Mr Findlay's efforts were never reciprocated by Ms Kemp, who maintained an unflinching stance on parenting and property matters. Whilst I accept that Ms Kemp's firmly-held view of these events is different, her view is not strictly relevant in these proceedings, where it is Mr Findlay's testamentary intentions which are in issue.

Mr Findlay and family

Mr Findlay was the son of David and Carmen Findlay. He had an older sister, Ms Jackson, and a younger sister, Georgia Moffat. One of Mr Findlay's cousins was the defendant. Another cousin was Jason Downing, who is a barrister and, indeed, senior counsel. Mr Downing is married to Ms Lintott.
Mr Findlay was very close to the defendant; their families regularly spent time together during their childhood. Mr Findlay and the defendant went to the same school, albeit not at the same time, as the defendant was two years older than Mr Findlay. After high school, Mr Findlay and the defendant moved in similar social circles. Mr Findlay obtained a Bachelor of Business and moved to the United Kingdom for two years on a working holiday. The defendant was living and working in London at the same time. They shared apartments in Kensington and Notting Hill. The defendant said that he and Mr Findlay did almost everything together aside from work, regularly having dinner, playing sport, travelling together and sharing a common group of friends.
Mr Findlay's father had started a company in 1973, which is now a licensed telecommunications carrier known as Vertel Telecoms Pty Ltd. In 1995, Mr Findlay returned to Sydney to work for Vertel, and did so for the next 25 years until he died. The defendant returned to Sydney too; the cousins shared mutual friends and ran in the same friendship circles. They often attended social events and dinners together a few times a month. Mr Findlay was the defendant's best man and, as the years unfolded, they became godfather to one another's children.
Mr Findlay never married. In 2011, Mr Findlay and Ms Kemp began a relationship. In 2012, Ms Kemp moved into Mr Findlay's Paddington home, together with her child from a previous marriage. In October 2013, the couple welcomed the arrival of twins.

2013 Draft

The arrival of children prompted the couple to prepare wills. Ms Kemp made a will, leaving her estate to Mr Findlay. Mr Findlay arranged for a will to be drafted to like effect. Although Mr Findlay did not execute this will at the time - and indeed did not execute the will until two years later - the draft will gained prominence where he later amended this draft on his computer to become the 2019 Document. Mr Findlay's interactions with Ms Grimes in respect of this will are also important as they shed light on the extent of Mr Findlay's knowledge of the requirements for making a valid will.
On 6 November 2013, Ms Grimes' secretary emailed a draft will to Mr Findlay advising, "Should it be in accordance with your wishes please telephone Emma Grimes … and she will arrange for you to sign it. Please note Emma is happy to meet you at a time and place convenient to you." The draft will provided that Mr Findlay would appoint Ms Kemp as his executor or, alternatively, Ms Jackson, with the whole of his estate given to Ms Kemp. The substitute beneficiaries were the children upon them attaining the age of 25 years, albeit the children were not named. The further substitute beneficiaries were Mr Findlay's sisters. Ms Jackson was also appointed as testamentary guardian of the children.
On 11 November 2013, Mr Findlay emailed Ms Grimes' secretary, attaching the draft will "ADF WILL.doc" (2013 Draft). Mr Findlay advised "I have made some minor modifications to this document. What is the process from here? It needs si[gn]ing and witnessing. Where do we do that?" Ms Grimes' secretary offered to "re-print the amended Will and pass it on to Emma Grimes. Emma is able to meet at a time and place convenient for you and you may contact her directly".
So far as the evidence reveals, this was the first time that Mr Findlay had made a will. These emails indicate that Mr Findlay was not familiar with the process but apprehended that the will needed to be signed and witnessed, apparently by Ms Grimes. He did not appear to appreciate that the execution of the document needed to be witnessed by two people, neither of which had to be a solicitor. Nor did he give the completion of this task any particular priority, as he did not complete the exercise for another two years.

2015 Will

In 2015, Ms Kemp made another will, leaving $1 million to her son from her previous marriage and the balance of her estate to Mr Findlay. Presumably, this prompted Mr Findlay to complete the will-making task as well. On 4 August 2015, Mr Findlay emailed Ms Grimes, attaching the 2013 Draft. Mr Findlay requested a "slight modification" and asked, "Can I get this signed / witnessed please." Again, Mr Findlay clearly appreciated that the document needed to be signed and witnessed, albeit he does not necessarily appear to have understood that the document needed to be witnessed by two people.
On 19 September 2015, Mr Findlay executed the will, largely in the same terms as the 2013 Draft (2015 Will). The only change was that Ms Crosby was added as a substitute guardian for the children in the event that Ms Jackson was unwilling or unable to act. It is this will for which Ms Kemp seeks a grant of probate.
Ms Grimes witnessed the 2015 Will. The other witness was Ms Grimes' mother. Ms Grimes said the 2015 Will was not signed at her office but may have been signed at the home of Mr Findlay's mother. Whilst Ms Grimes did not recall with any certainty, it was likely that she suggested that, as their mothers were seeing each other on the weekend, they should get together then for the will to be signed. On the same date, Mr Findlay also executed an enduring power of attorney, appointing Ms Kemp and Ms Jackson as his attorneys. Mr Findlay also executed an Appointment of Enduring Guardian, appointing Ms Kemp as his enduring guardian. Ms Grimes witnessed the execution of these documents too. On 7 October 2015, Ms Grimes sent Mr Findlay a copy of the will, power of attorney and guardianship documents, noting that the originals were held in the solicitor's safe.
In January 2016, Mr Findlay sold his Paddington home. The family moved to a house at Centennial Park, which was purchased in Ms Kemp's name.
In June 2016, Mr Findlay began to work with Ms Lintott for six months to set up a new venture, which later became AetherX Pty Ltd: see [106]. The business was intended to be an innovation hub for ideas, technologies and business models. As mentioned, Ms Lintott was married to Mr Findlay's cousin, Mr Downing, and had known Mr Findlay for many years. Mr Findlay and Ms Lintott remained close friends after this period of working together. Mr Findlay regularly came to Mr Downing and Ms Lintott's house, often with his children, as they lived nearby. Every few months, Mr Findlay and Ms Lintott would meet up to walk around Centennial Park, where they talked about business ideas, parenting, relationships and gardening. Of Mr Findlay's interactions with her husband, Ms Lintott said, "We lived so close by. We shared so many of the same streets, the same gym."
In 2017, the couple welcomed the arrival of their third child.

Separation

When Mr Findlay was reviewing his text messages some years later, after he had settled family law proceedings with Ms Kemp and in relation to a dispute with his sisters, he jotted down that he had been having relationship problems with Ms Kemp in January 2019: see [102]. Presumably there were text messages on his phone which evidenced such problems, sufficient for Mr Findlay to make a note to that effect. Consistently with this, Ms Kemp contacted a counsellor, Ms Masero, and attended her first counselling session on 2 May 2019. Ms Kemp agreed that the counselling concerned relationship problems that had been present for a few months. I conclude that the couple were having relationship problems from January 2019 on.
These problems came to a head in May 2019. Mr Findlay's mother had been battling pancreatic cancer for some time. The Findlay family arranged a Mother's Day weekend at Palm Beach on 11 and 12 May 2019, as the Findlay family expected that this would be their mother's last Mother's Day. Mr Findlay, Ms Kemp and their children were due to attend. A couple of days before the Mother's Day weekend, Mr Findlay told Ms Jackson, "Lizzie and her mother won't come. It's terrible between us. We are having the worst time." Ms Jackson offered to call Ms Kemp and encourage her to come but Mr Findlay said "No she won't come. Just leave it." Mr Findlay came to Palm Beach with the children but was withdrawn and disengaged.
Ms Kemp said she did not attend the Mother's Day weekend as she was bedridden with the flu. The couple were also due to meet with their financial adviser on 16 May 2019. On 14 May 2019, Ms Kemp postponed the meeting, emailing "I have been 8 days homebound with the flu/bronchitis". On 16 May 2019, Ms Kemp was well enough to attend couple's counselling with Ms Masero instead. Ms Kemp said the couple agreed to attend couples counselling initially to repair the relationship and to try to work it out. I accept this.
Ms Masero's recollection of the first couple's counselling session was hampered by the loss of her clinical notes. Ms Masero said "Andrew came in very willing to take responsibility for what had been happening in the marriage." (So far as the evidence reveals, the complaint was that Mr Findlay's time spent on work meant that he was not sufficiently available for his family.) Ms Masero recalled, "He wanted to work on himself. … we explored the potential for having a diagnosis … that … it might be ADHD [Attention Deficit Hyperactivity Disorder], [b]ecause there were some things around disorganisation and … a little bit chaotic … in his work. … I can't recall him saying anything specifically now about what he wanted to happen with Lizzie." As to whether Mr Findlay wanted the family to stay together or not, Ms Masero's recollection was that "he did not want to break up with Lizzie, and he wanted the family together, and that that's what he was there for." I accept this.
Mr Findlay frequently spoke to the defendant about his relationship with Ms Kemp. He was obviously talking to the defendant at the time. On 19 May 2019, the defendant texted Mr Findlay, "Chin up. Plenty of goodness out there". When Mr Findlay later reviewed his text messages in respect of the dispute with his sisters, Mr Findlay recorded "separated with Liz on May 20 2019": see [102]. Ms Kemp said nothing significant happened on 20 May 2019. It is likely that there was a significant text message between the couple on that date but I accept that the decision to separate was not made until some days later.
On 22 May 2019, the couple saw the counsellor, but separately. On 23 May 2019, Mr Findlay arranged for Ms Kemp to be given a business email account, with an email signature noting that Ms Kemp was the Executive Assistant to Mr Findlay. (Whilst Ms Kemp was on Vertel's payroll, Ms Jackson said that she had never seen Ms Kemp do any work for the company or for Mr Findlay in a work capacity.) Ms Kemp was also to have full access to Mr Findlay's diary. Presumably, this was something which Ms Kemp had requested during the counselling sessions and which Mr Findlay actioned.
On 27 May 2019, the defendant texted Mr Findlay, asking how his day went, "Hopefully improved." Mr Findlay replied, "Marginally. We are seeing the counselor tonight." The couple saw the counsellor together for a second joint session. Mr Findlay's notes record that they talked about "telling people."
On 29 May 2019, the defendant texted Mr Findlay, "How did it go the other night?". Mr Findlay replied, "A good session. I am calm and accepting of it. We are not compatible and she won't change. Maybe we find a flat together???". The defendant replied "Could work for sure. … Would need to be a clubhouse. Room for kids." (The defendant was then in the process of his own divorce.) The defendant said that Mr Findlay spoke to him in May 2019 about the decision the couple had made to end their relationship. Such a conversation is consistent with this text message and I accept the defendant's evidence.
On 30 May 2019, Mr Findlay told his mother and Ms Jackson that he and Ms Kemp had separated. Ms Jackson was in a Melbourne hotel room with her mother when Mr Findlay called; she put the telephone on speaker. Mr Findlay said, "I want to tell you both that Lizzie and I have split up. It's the right thing. We are both really committed to doing the right thing for the kids." Ms Jackson said she was saddened but not surprised at the news. Consistently with this, on 31 May 2019, Ms Jackson texted Ms Kemp, "I was sorry to hear that you and Andrew have separated." Ms Moffat sent a similar text message to Ms Kemp, who replied, "I am a broken bird at the moment and really just need some space."
Later on 31 May 2019, Ms Kemp emailed Mr Findlay with detailed plans as to which parent was doing what with which child over the course of the weekend. The formality and detail of the email is consistent with the couple having separated and needing to make clear arrangements for shared parenting. On 4 June 2019, emails ensued between Ms Kemp and Mr Findlay in respect of the children's medical appointments, household repair and maintenance tasks and children's sporting fixtures. The formal nature of these emails again suggest that a decision had been made to separate.
Likely, Mr Findlay began his separate notebook at about this time, entitled "A daring new ending May 2019". The title of the notebook itself confirms that Mr Findlay understood that his relationship with Ms Kemp was over. Overall, and having regard to the (largely) contemporaneous records, I find that the couple had decided to finally separate by the second counselling session with Ms Masero on 27 May 2019.

2019 Document

On 4 June or 5 June 2019, Mr Findlay undertook some internet searches and added bookmarks to his internet browser for two websites, www.divorceresource.com and www.moneysmart.gov.au.
On 4 June 2019, Mr Findlay created the 2019 Document on his computer by amending the 2013 Draft that had been provided to him by Ms Grimes six years' earlier. Specifically: 1. Mr Findlay changed the date of the will to 5 June 2019 in two places: 5 June 2019 appears on the first line and under the execution clause on the second page. The fact that Mr Findlay manually dated the 2019 Document for the following day indicates that he did not plan to execute the new will that evening but the next day. 2. Mr Findlay's address was changed from Paddington to Centennial Park, where he had moved in the intervening years since the 2013 Draft was prepared. 3. Ms Kemp was removed as the sole executor and trustee, replaced by the defendant. Mr Findlay corrected the spelling of Ms Jackson's name (incorrectly) but otherwise left unchanged his sister as a substitute executor. The executor's powers remained unchanged. 4. Ms Kemp was removed as the sole beneficiary. Mr Findlay's three children were named as the residuary beneficiaries. (In the 2013 Draft, the children were not named but rather 'my children' were a class of substitutionary beneficiaries). He left unchanged his sisters as substitutionary beneficiaries. 5. Mr Downing replaced Ms Jackson as a testamentary guardian for his infant children. Ms Mofatt replaced Ms Crosby as a substitute testamentary guardian. Ms Moffat's surname was also changed, she having divorced since the 2015 Will.
Mr Findlay did a careful job from the first line to the end, adding commas and changing "she" to "he" where necessary. He also made formatting changes, removing spaces so that the 'backsheet' of the 2013 Draft was brought onto the second page of the document. A small correction was also made to the address of Ms Grimes' law firm on the last page, although query whether this final amendment was done automatically by the Microsoft Word program, as opposed to by Mr Findlay.
Mr Findlay changed the file name from "ADF WILL.doc" to "ADF WILL NEW PLK". There were various suggestions by the parties as to the significance of the file name. Obviously enough, "ADF" were Mr Findlay's initials. "LK" no doubt referred to Ms Kemp, called "Lizzie" by Mr Findlay. "P" most likely meant "post", where Mr Findlay prepared the 2019 Document after his relationship with Ms Kemp had come to an end. The 2019 Document was last saved at 5:53pm on 4 June 2019.

Mr Findlay tells Ms Kemp

The first person that Mr Findlay told that he had prepared the 2019 Document was Ms Kemp. This fact emerges, not from Ms Kemp, but from the contemporaneous documents, in particular, the email which Ms Kemp failed to produce in answer to a notice to produce. Nine months after their separation, Ms Kemp sent a long email to Mr Findlay on a range of issues. Ms Kemp pressed for a property settlement and concluded: "I guess though knowing 8 days after we separated you changed your will I learnt quickly what I was dealing with."
Ms Kemp denied that, by the date of that email, she knew that Mr Findlay had made a new will. Ms Kemp said she did not recall the email and was unable to provide the Court with any explanation of its content "because I do not recall it … I can only assume maybe he's said something, but I just don't recall that, I'm sorry". I do not accept the witness' evidence on this subject.
Ms Kemp's email contains a powerful admission against interest, evidencing that Ms Kemp was aware at the time that Mr Findlay had prepared the 2019 Document, which she understood to be "your will". Ms Kemp's comment - "I learned quickly what I was dealing with" - also indicates she was displeased with the changes which Mr Findlay had made to his will, consistent with having been told that she was no longer a beneficiary. I note also Ms Kemp's observation that she came to know "8 days after we separated you changed your will". I have already found that the couple decided to separate on 27 May 2019. Eight days after this is 4 June 2019, being the date on which Mr Findlay prepared the 2019 Document. On the morning of 5 June 2019, Mr Findlay "had a meeting with Lizzie to talk through a plan": see [54]. Most likely, Mr Findlay told Ms Kemp about his new will at this meeting. That is, Ms Kemp's email is consistent with the events as I have found them to have occurred. Where Ms Kemp could not be expected to remember this level of detail nine months later, when she sent the email, the precision of the timeframes in her email also indicates that she was prudently keeping a note of events as they unfolded, when the information was needed in family law proceedings.
Further corroboration of the fact that Mr Findlay told Ms Kemp that he had prepared the 2019 Document may be found in Ms Kemp's email of 2 September 2019, where Ms Kemp recorded her understanding that Mr Findlay had appointed Ms Moffat as a guardian of the children: see [78]-[81]. The only will in which Mr Findlay appointed Ms Moffat to such a role was in the 2019 Document. Corroboration may also be found in Ms Kemp's emails to the defendant after Mr Findlay's death, which indicate that she understood that Mr Findlay had made a new will, "Silly question but assumed that it was signed and there will be no issue with Probate?": see [125]. Ms Kemp's email indicates that she was aware that Mr Findlay had made a new will after their separation but became aware of the fact before the will was signed, which was certainly the case on the morning of 5 June 2019. Ms Kemp's email to Ms Grimes on 5 September 2023, noting "It appears that the Will I was told existed in 2019 is unsigned", is again consistent with having been told in 2019 that Mr Findlay had made a new will: see [126]. That is, the only surprise for Ms Kemp on Mr Findlay's passing was not that he had made a new will, but that he had neglected to execute it.

Mr Findlay tells executor

The second person that Mr Findlay told about the 2019 Document was the new executor. On 5 June 2019, Mr Findlay emailed the 2019 Document to the defendant, advising: "This is my new will. I am yet to get it signed in front of Emma Grimes (my lawyer) but I intend [t]o."
The defendant replied, "Is this the right Dave Findlay? I [didn't] open it". Mr Findlay promptly replied, "Yep". (The defendant explained that he asked whether Mr Findlay meant to send the will to him or to Mr Findlay's father, who was also named David.) Mr Findlay added: "I had a meeting with Lizzie this morning to talk through a plan and I suggested one of her girlfriends assist. She said no and the only person she would speak with was you. I've made you the executor btw."
The defendant replied, "Okay, sure. Will have a look at it for sure." Soon afterwards, Mr Findlay sent a further email to the defendant: "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. I'll let you know if / when you can come in to mediate."
As I read it, Mr Findlay thereby sought to give a further explanation to the defendant as to why he had sent the defendant the will, "I just sent you the will as I haven't changed it with my lawyer yet." As I read the italicised words, Mr Findlay was explaining that he had not yet changed his 2015 Will. Mr Findlay wished to record and publish his testamentary intentions to the executor under the new will, should anything happen to him before the will was properly executed.
The next day, on 6 June 2019, Mr Findlay made an appointment with family law solicitor, Mr Wahhab, for 11 June 2019, and recorded the details in his work notebook. That evening, Mr Findlay went to the defendant's apartment to plan a cards night that they were going to host a couple of weeks later. The defendant asked "Is there anything I need to do regarding yesterday's emails?" Mr Findlay replied "No, you're all sorted. I intend to get it signed. It's all taken care of." Although the defendant remained close with Mr Findlay until his death, speaking to him regularly by telephone and in person, they never spoke about the will again.
On 7 June 2019, Mr Findlay saw the counsellor by himself. Mr Findlay made a page of notes of this session, which he appears to have subsequently revised and reflected upon. I do not read the notes as indicative of a wish to continue the relationship with Ms Kemp but a consideration of how to interact with her and the children post-separation. Later on 7 June 2019, Mr Findlay sent an email to Ms Kemp, apparently on the death of Ms Kemp's friend, repeating good things said by the friend about Ms Kemp, "she was right. I love you for all that you are Lizzie." Whilst Ms Kemp relied on this email as evidence that their relationship continued at that time, I read it rather as a compassionate and kind email by Mr Findlay. All communications between the couple to that point were courteous and careful. Mr Findlay's accountant also sought various information in respect of expenses in Mr Findlay's tax return and Mr Findlay sought Ms Kemp's assistance in this regard.
On the morning of 11 June 2019, the couple spoke. Mr Findlay emailed Ms Kemp, thanking her for talking that morning: "I love you and I am deeply sorry for taking your generosity of giving and support for granted and equally not being there for you, not stepping up to those critical situations when you most needed it. If we can use the next session with Monica to work out how I can give you that emotional space you need to process everything/disengage from the hassles of me then that would be something that I could really focus on and show you that I mean it when I say I love you."
As I read it, Mr Findlay apologised for his deficiencies in the relationship and wished to participate in a joint counselling session for the purposes of facilitating a harmonious separation; I do not read this email as Mr Findlay pressing for the relationship to continue. Consistently with this, that afternoon Mr Findlay kept his appointment with family law solicitor, Mr Wahhab.

Mr Findlay tells family law solicitor

In the afternoon on 11 June 2019, Mr Findlay met with Mr Wahhab. The conference lasted for almost two hours. Mr Wahhab recorded extensive details of current parenting arrangements, the couple's relationship, their respective assets and details of Mr Findlay's family business and financial arrangements.
The solicitor's "Initial Instructions Sheet" called for a date of separation; Mr Wahhab wrote "under same roof late May 19". Mr Wahhab said, "That's his instructions to me." The solicitor's file note recorded "If/when leave → he'll stay East side". Mr Wahhab explained, "because they were both living under the same roof and that's the if." Mr Wahhab rejected the suggestion that his note recorded the fact that Mr Findlay was not then certain that he would be leaving Ms Kemp.
Mr Wahhab said his usual practice when a new client arrived was to provide them with a package explaining the family law process. The package included a four-page checklist, the first item of which was "CHANGE YOUR WILL". Mr Wahhab said his usual practice was to bring the package to the client's attention and refer them to the checklist. Each item on the checklist was expanded upon in the package, including: "CHANGE YOUR WILL If you have a Will, that Will may provide that all or part of your estate on your death be given to your (now) former spouse. This may not be what you now want to do given the separation. In the event that you do not change your Will and you die, then, until you are divorced (divorce is not the same as finalising your property settlement or parenting issues), your former spouse will benefit from your estate on your death. … It is therefore important that you carefully consider changing your Will. York Law would be happy to prepare a new Will for you. If you have a Will, the Will may provide that a certain person be appointed as the executor or trustee of your estate on your death. In some cases, people appoint their former spouse or their former spouse's relative or friend to be the executor. This may no longer suit if the spouses separate as generally separated spouses would not want their former spouse or their relatives or friends to administer their estate. It is therefore important that you review your Will and confirm the identity of your executor. York Law would be happy to prepare a Will with a new Executor."
Mr Wahhab's 18-page file note suggests that he raised the matters in the checklist at the end of the conference. Mr Wahhab recalled handing Mr Findlay a copy of the package. Mr Wahhab said he gave Mr Findlay advice about the matters in the checklist. His usual practice in respect of the first item in the checklist was to inform and advise clients to change their wills and read the firm's document carefully, as it contained tips and important steps to take now that they were separated, including changing their wills. Mr Wahhab's file note then records: "H[usband] said he'll be transparent He ∆d will recently."
Mr Wahhab said he used the triangle as the Greek letter, delta, meaning change. He added the letter "d" at the end to make it past tense rather than "ing" to indicate that Mr Findlay was changing his will. Mr Wahhab said he meant to record Mr Findlay's instructions that he had changed his will.
According to Mr Wahhab, Mr Findlay said, "I have changed my Will recently. The new Will gives all my assets to my children." The second sentence does not appear in Mr Wahhab's file note. Mr Wahhab denied that he had no recollection beyond his file note, maintaining that he recalled this matter for a number of reasons. I am inclined to accept Mr Wahhab's evidence, where there is no dispute that Mr Findlay had in fact recently amended the 2013 Draft to leave his estate to his three children. Mr Wahhab did not have a copy of the 2019 Document and thus the only source of that information could have been Mr Findlay.

Moving forward

So far as the defendant's case is concerned, the legal issue can effectively be determined at this point. In order to consider the additional matters raised by Ms Kemp, however, it is necessary to proceed further. The couple continued to live under the same roof, although Mr Findlay appears to have found this difficult and stayed elsewhere much of the time. As Mr Findlay later emailed Ms Kemp, "I spent the first 6 months of our separation in and out of Centennial Park and sleeping in the spare rooms of family and friends." One of the places where Mr Findlay stayed was at the defendant's house.
Ms Kemp said Mr Findlay constantly left post-it notes for her saying "I promise I will be more present for you and for our family" and that he would "make changes to myself". I accept that Mr Findlay did this; it is consistent with notes made in his notebooks. But I do not accept that Mr Findlay thereby indicated that he wished to continue his relationship with Ms Kemp as opposed to a building a good post-separation relationship.
On 17 June 2019, Mr Findlay saw the counsellor alone. On 19 June 2019, Mr Findlay saw the counsellor alone and the couple last saw the counsellor together. Based on her electronic records, Ms Masero said that it is likely that the couple discussed their formal separation at this last joint couple counselling session. Mr Findlay made notes which are consistent with the counsellor working with the couple to enable them to deal with one another appropriately post-separation, including being "understanding and respectful" of Ms Kemp's boundaries and "generous and flexible in arrangements" in relation to their children. Mr Findlay provided a copy of his note of the counselling session to Ms Kemp. These notes do not appear in Mr Findlay's notebooks; it is unclear whether he made these notes elsewhere or whether some pages have been removed from his notebooks. (None of the notebooks are complete, as a page-count reveals when compared with the pages of the notebook as sold.) Ms Kemp said she had not removed any pages from the notebooks.
On 19 June 2019, the couple finally met with their financial planner, where Ms Kemp had re-scheduled the meeting a few times. A Record of Advice later provided by the financial planner recorded: "… Unfortunately you've experienced some challenges in your relationship and have chosen to separate as a result. You have begun the process of understanding the implications of this decision, both from a financial perspective and in relation to your children. You have engaged Roy Ditmarsch to assist you with this exercise, whilst being mindful that you will terminate this engagement if you feel a conflict of interest presents itself. In light of your decision we spent the rest of the meeting discussing matters relating to how your assets may be split. … Your goals for the short-term are to determine how to proceed with your separation and retain your super fund investment strategy and insurance for Andrew as is for now. Your long-term goals are unclear at this stage given this development." Ms Kemp said that Mr Findlay did not mention that he had made a new will at the meeting. I accept this.
On 24 June 2019, Ms Kemp saw the counsellor alone. On 26 June 2019, Mr Findlay saw the counsellor alone. Later that day, Mr Findlay emailed Ms Kemp and apologised for a recent outburst, noting that he had then been "feeling anxious and fearful that our separation and anger/coldness with each other is affecting the kids." Mr Findlay noted that he was focussed on being "positive, constructive, caring and supportive" of Ms Kemp, trying not to react notwithstanding that they were "at the anger stage of our emotions".
From late June 2019 on, Mr Findlay was the primary carer for his mother, who was receiving palliative care at home at a time when Mr Findlay's sisters were overseas.
From 30 June 2019 to 6 July 2019, Ms Kemp travelled with her mother and the twins to Samoa; the youngest child stayed with Mr Findlay. On 4 July 2019, Mr Findlay made notes, apparently in respect of a potential property settlement with Ms Kemp, and also noted "Together until we are separate". It is not clear what this meant in the context of the overall note.
On 6 July 2019, Ms Kemp and the twins returned from overseas. Mr Findlay texted Ms Kemp, "I'd really like to do something tomorrow together" with "you and the kids". I do not read these text messages as indicating a wish to reconcile with Ms Kemp. On 10 July 2019, the counsellor saw Mr Findlay and Ms Kemp separately. On 12 July 2019, Mr Findlay's notebook indicates that he was looking for a rental property. On 22 July 2019, Mr Findlay met with Mr Wahhab and made detailed notes in respect of his financial position. On 26 July 2019, Mr Findlay made an entry in his notebook, apparently the product of a counselling session, concerning his "failed relationship" and a concern that he was not providing enough support or love for his family or Ms Kemp. On 6 August 2019, Mr Findlay saw the counsellor alone. Some days later, his notebook refers to an apparent upset with Ms Kemp; Mr Findlay records, "You do not like me".
On 23 August 2019, Mr Findlay's mother passed away. The defendant said that Mr Findlay was grief stricken by his mother's death and stayed overnight at the defendant's home regularly.
On 26 August 2019 is the first record of strong discontent between the separated couple, when Mr Findlay expressed unhappiness that Ms Kemp was travelling to New York for 10 days whilst he was also overseas on business, "We do not have the Au pair so you can travel the world and live a life that is beyond our current financial means and out of touch with raising young children. … If you feel that you are unable to fulfill the role as the primary carer of our kids then let's have that conversation when we go and see the mediator?". It does appear that correspondence between the couple was thereafter undertaken with the drafting assistance of their respective family law solicitors.
The funeral of Mr Findlay's mother was on 30 August 2019. A few days before the funeral, Mr Findlay told Ms Jackson that he had had a huge fight with Ms Kemp and told her that she could not come to the funeral. Mr Findlay said he had seen an email from Ms Crosby to Ms Kemp, who wrote that being in the house together must be very difficult but told Ms Kemp to be patient as she would get more money from the divorce "when 'the mother'" died. Mr Findlay said he was very upset as Ms Crosby "didn't even have the decency to use mum's name and she called her 'the mother'."
On 2 September 2019, Mr Findlay emailed Ms Kemp querying a transfer of $800 from their joint account, "Where was that money transferred to and what was it for?" He asked Ms Kemp "please do not use any of our joint money" on her holiday. Mr Findlay also expressed "serious concern" about the children being left with Ms Denniff whilst Ms Kemp was overseas. Mr Findlay advised that he had asked his sisters to serve as the primary carers of the children whilst Ms Kemp was away. Further, "In the event of an issue and or emergency, I am nominating Kate Jackson as the guardian of the three children."
Ms Kemp replied in a lengthy email, "Guardianship is something I am currently seeking advice on. … Your Will states Georgia is to be Guardian of the children if you and I are deceased. Mine differs." Mr Findlay replied 45 minutes later, "I will add Georgia as guardian". Mr Findlay also complained about Ms Kemp's operation of their joint account, stating that the arrangement was that they would put all of their money into the account with the idea that Ms Kemp would pay all expenses out of the account, "Not your personal account because there is no visibility there. You have moved money 3 times … without letting me know."
Ms Kemp's reference to Ms Moffat is curious. Under the 2015 Will, Mr Findlay had appointed Ms Jackson as the testamentary guardian or, alternatively, Ms Crosby. It was only under the 2019 Document that Mr Findlay had appointed Ms Moffat as a testamentary guardian (in the event that Mr Downing was unable to perform this role). Of this curiosity, Ms Kemp said she always believed that Ms Moffat was the guardian appointed under Mr Findlay's previous wills, but her evidence was unclear as to whether she had seen the 2015 Will before Mr Findlay died (which appointed Ms Jackson as guardian.)
Ms Kemp's email suggests that she was then aware of the 2019 Document but, on its own, is equivocal. So too, for that matter, is Mr Findlay's reply, where there was no need to add Ms Moffat as guardian as she was already nominated as a substitute guardian under the 2019 Document. What I think this email exchange reflects is that Mr Findlay had already told Ms Kemp that he had made a new will appointing Ms Moffat as guardian of the children but neither of them then had the precise details of the new will in mind. Nor did Mr Findlay go back and check the 2019 Document in the 45 minutes between receiving Ms Kemp's three-page email and sending a response to the number of issues which her email raised.
On the couple's return from their respective overseas trips, the au pair, Ms Denniff, submitted her hours of work to Ms Kemp and Mr Findlay for payment. Ms Kemp was displeased and replied, "Give[n] the state of the relationship with Andrew and myself I think it is best if I give you 2 weeks' notice". Ms Denniff texted Ms Jackson, "I think the problem is I'm caught up between the two of them and I'm taking the brunt of it right now. I have been more than accommodating with the whole scenario and I don't want to be used as a pawn between them. … I am totally with Andrew by the way."
Ms Denniff's text messages are at odds with her affidavit evidence. Ms Denniff said that, at the end of August 2019, the couple informed her that they had decided to separate. Mr Denniff was shocked as she had not noticed any "discernible differences in their attitudes towards each other" in the period leading up to their separation. Nor did either of the couple mention to her anything to do with their wills nor their testamentary intentions. (I would have been surprised if they had.) The text messages, I think, give a more accurate indication of the strain in the relationship between the separated couple at the time.
On 14 and 16 October 2019, the couple participated in a mediation, resulting in an interim parenting agreement. On 25 November 2019, the financial planner circulated an agenda in advance of a meeting with the couple that day, "looking to cover off" various items including an update on the progress of their personal / financial separation and "recapping the fact that your estate planning has been put on hold". As matters turned out, Mr Findlay was unavailable to attend and the financial planner met with Ms Kemp alone.
Ms Kemp relied on the financial planner's statement that "estate planning has been put on hold" as an indication that Mr Findlay was not prepared to see the 2019 Document through to execution but had changed his mind. It must be remembered that, at this point in time, the financial planner was retained by the couple, who after their separation would "terminate this engagement if you feel a conflict of interest presents itself": see [70]. The Record of Advice records that the couple's estate planning was not a subject on which they sought the financial planner's assistance, given their separation. Estate planning would obviously look very different were the planning done for a couple or as individuals. Clearly, neither considered it appropriate to engage the financial planner in relation to that issue at that time.
In December 2019, Mr Findlay leased an apartment in Clovelly and moved out of the Centennial Park home. Ms Jackson went to the apartment with Ms Moffat to help their brother unpack his belongings and make up bunk beds for the children. Although Ms Jackson felt sorry for her brother standing in the kitchen of a "run down rental", Mr Findlay was in a good state of mind and told his sisters not to worry about him, "I'm happy to be away from the stress of trying to share a house with Liz." Ms Lintott also recalls going to be with the children at Mr Findlay's request at this time, as he said "I want to avoid the handover with Liz."
On 14 January 2020, Mr Findlay made notes in his notebook, "Monica as facilitator of healing process with Liz." Mr Findlay contemplated how to interact with Ms Kemp including to "collaborate generously" and "let it go".
On 1 February 2020, Ms Kemp send Mr Findlay a long (unpleasant) email on a range of parenting and financial matters concluding, "We are not together now and never will be. There is no healing or mending to occur between us and it's progression time." On 4 February 2020, Mr Findlay responded at length, "I would like to have a discussion (that does not turn into a fight) … I am genuinely trying to be more involved in these issues as they relate to the kids' development." Mr Findlay asked to discuss these issues rather than email and text, "In the meeting with Monica I want to get a framework for us to have conversations in a way for us to deal with disagreements. … I agree that it is time to progress but that not that there is no healing or mending. We have both said and done things that if left unaddressed will poison our relationship in the future. Like it or not we will have a relationship for the rest of our lives. Neither of us want to be together. I would however hope that we are big enough and care for our kids enough to work out a genuinely supportive and caring relationship going forward."
On 5 February 2020, Ms Kemp replied that she was not then prepared to meet with Mr Findlay and Ms Masero, with the next step being legal mediation; email was her preferred record of communication. As already mentioned, Ms Kemp concluded, "I guess though knowing 8 days after we separated you changed your will I learned quickly what I was dealing with." Mr Findlay replied, "Is this supposed to help Liz? At least I am able to apologise."
On 10 February 2020, Mr Findlay made a 'to do' list for the week, including "Liz proposal". Mr Findlay met with Mr Wahhab on 17 February 2020. In February and March 2020, it is evident that the couple continued to struggle when dealing with one another in respect of parenting and financial issues, indeed, relations appeared to deteriorate. Mr Findlay complained that he kept putting money in the Westpac credit card "for spending on family items and you continue to spend the money on personal items … Please pay your personal items with your own money." Ms Kemp responded, "I am a female who is allowed personal appointments". Mr Findlay disagreed, complaining that Ms Kemp ignored the family budget, "You are out of touch with reality Liz". In May 2020, Ms Findlay returned some personal possessions to Mr Findlay, who complained, "Leaving my stuff outside in the rain is not appreciated." Ms Kemp retorted, "Don't write lies." Mr Findlay rejoined, "You lack decency let alone class."
Mr Findlay appears to have continued to receive counselling to assist him to deal with the challenges before him. On 2 September 2020, Mr Findlay met with the counsellor. On 12 October 2020, Mr Findlay emailed Ms Kemp in a more sanguine fashion, apologising for a mix-up in the arrangements that weekend, "Despite the situation I can say that I am really trying to get these things right … I am grateful for all the effort that you make for things to work and the flexibility you have in accommodating my schedule."
Ms Kemp was not the only source of disputation in Mr Findlay's life at the time. His relations with his sisters were also proving difficult. In October 2020, Mr Findlay and his sisters began a number of joint counselling sessions, followed by a meal together. In November 2020, on Ms Jackson's prompting, Mr Findlay began to investigate whether he suffered from ADHD. With Mr Findlay's permission, Ms Jackson booked an appointment for her brother at a GP around the corner from Vertel's offices: see [113].
In January 2021, the couple emailed each other as to when they might expect to achieve a property settlement. For his part, Mr Findlay emailed, "I'm in the most stressful and challenging period of my life with work and my family issues. I continue to spend more money than I make every month yet I do not feel that you have any regard or concern for that situation." Relations soured in February 2021. Ms Kemp pressed for the Centennial Park house to be sold. Mr Findlay emailed, "you ignore any of the logic or fact and heap the blame on others. … Such entitlement Liz". Further, "You fail to see or understand anyone's point of view but your own. It is actually a great summary of our relationship." In March 2021, the couple could not agree on a walk-through of the Centennial Park house to divvy up furniture and artworks; Mr Findlay referred to "just another of your lies then Liz." On 20 March 2021, Mr Findlay sent a further email in relation to parenting, "nothing you send me surprises me anymore. … At least be the person you are Liz and drop the façade."

Family law settlement

On 14 May 2021, the couple finalised their family law matter, executing agreements in respect of property, child support and spousal maintenance. The documents recorded that the parties had separated on a final basis in May 2019. In short, Mr Findlay paid Ms Kemp some $4.6 million together with 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.
The couple also executed a Deed of Release under the Succession Act, noting that they had reached agreement for a property settlement and spousal maintenance in the expectation that those agreements would finalise all claims by either party against the other arising out of their relationship. The parties desired to complete the financial severance of their financial relationship by discharging each other's estates from any potential claim under the Succession Act. Subject to the approval of the 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: cl 2.
On 17 May 2021, the couple filed an application for consent orders in the Family Court of Australia, again noting that they had finally separated in May 2019. Consent orders were made on 18 May 2021 in respect of parenting and property. Of the settlement, Mr Findlay told Ms Lintott that he was happy, "I have everything organised and finalised between myself and Lizzie. I am so relieved to have it done with." He told Ms Jackson, "I gave her enough money for her to get out of my life and off my back."
Relations between the couple did not improve. Mr Findlay's efforts to close the joint credit card in accordance with the consent orders encountered difficulty. Ms Kemp emailed, "Your control with money ends now." Mr Findlay replied, "Seriously Liz. Stop the aggression and threats. I am trying to get this all done … I paid the next month's money to you in advance as a sign of good faith and you are still going after me." (emphasis in original) Further, "You treat me like shit … I don't have any money left Liz. Does that make you happy?" Ms Kemp replied, "I have zero sympathy for you. You have tried to make my life hell with insults, money control and disgraceful antics." Mr Findlay rejoined, "I will comply with what is in the agreements. It means I no longer have to deal with your stupidity." Ms Kemp replied that Mr Findlay was "just pathetic" while Mr Findlay concluded the exchange, "I have worked hard for what I have."
On 15 June 2021, Mr Wahhab provided Mr Findlay with various documents signed by Ms Kemp in accordance with the consent orders made in the Family Court, including relinquishing her interest in three trusts and assigning loan accounts in those trusts, together with a signed share transfer form in relation to RGB Investments Pty Ltd. Mr Findlay was advised to sign the share transfer form as "transferee", date the document and provide it to his accountant. Mr Wahhab also sought Mr Findlay's instructions on whether he wished to apply to the Supreme Court to seek approval of the Deed of Release, "We strongly advise you to apply for approval." There is no evidence that Mr Findlay provided Mr Wahhab with these instructions. Nor did Mr Findlay execute the share transfer, such that Ms Kemp remained a director and shareholder of RGB Investments at his death. Likely, this was an oversight on Mr Findlay's part rather than referable to a wish that Ms Kemp remain involved in the company.

Post-settlement

On 1 June 2021, Mr Findlay emailed his accountant, Justin Woods, seeking advice on the structuring of his financial affairs post-separation from Ms Kemp. Mr Findlay wanted to establish a trust from which child maintenance obligations would be paid. Tax lawyer, Michael Hempsall, was engaged to advise on the issue. Mr Wood said that, from then on, he gave advice to Mr Findlay on numerous matters, including establishing a child maintenance trust for the children, whether to transfer the Centennial Park house into the name of the children or the name of a company for the benefit of the children, and advice in relation to the financial settlement following his separation. Mr Woods did not recall Mr Findlay ever discussing his will.
Mr Findlay moved back to the Centennial Park house. For her part, Ms Kemp used the $4.6 million to buy a house in Balgowlah. Mr Findlay expressed a concern to Mr Woods that Ms Kemp would want more money from him as she had spent all the money she received from the settlement to buy a house and had not set aside any money to support her lifestyle.
According to their emails, relations between the couple did not improve, apart from one incident. On 3 June 2021, Mr Findlay's apartment was raided by the Australian Securities and Investments Commission (ASIC). At this time, Mr Findlay's relations with his sisters were poor and it was Ms Kemp who assisted by collecting the children at short notice from his apartment. Mr Findlay was subsequently investigated by ASIC for insider trading. No charges were laid.
On 6 June 2021, Mr Findlay commenced the last notebook, entitled "LPP". The dispute the subject of this notebook concerned the Findlay family. Mr Findlay appears to have trawled through his text messages to collate text messages relevant to this dispute and, in the course of doing so, noted that he was having relationship problems with Ms Kemp in January 2019. Mr Findlay also recorded "separated with Liz on May 20 2019".
At about this time, Mr Findlay formed a casual relationship with long-time friend, Ms Roth. Both had recently concluded family law settlements with ex-partners. They spoke at length on this subject. Ms Roth recalled Mr Findlay telling her that he had concluded the financial arrangements with Ms Kemp and was grateful that he did not have to hand over the Centennial Park house. Further, Mr Findlay said, "My will has been changed, after we split, I wanted to ensure my home and other assets weren't all just handed over to Liz and my kids are looked after." Ms Roth did not repeat this conversation to anyone at the time.
Whilst it was suggested to Ms Roth in cross-examination that her suggested relationship with Mr Findlay was a fiction, Ms Roth was able to provide additional accurate details about the financial settlement between Mr Findlay and Ms Kemp, which suggest that Mr Findlay did indeed disclose these details to her. Ms Roth added, "He was very frustrated. He had a lot of acrimonious feelings, but it's not for me to relay any ill feelings. I don't want anyone to feel bad … He did mention the will. He was very satisfied that his intentions had been closed off and that he'd changed all arrangements for any further privilege or accommodation with Elizabeth." Mr Findlay also expressed the sentiment that "She would not get her hands on" the Centennial Park property … it was very clear that his intention was that she wouldn't get either as part of that property settlement or ever in the future her hands on his property at Centennial Park." Further, "It was a foregone conclusion in his mind that the will had been resolved and that the property, specifically Centennial Park, would not be an entitlement to Elizabeth".
Where Mr Findlay and Ms Roth appear to have bonded over their shared experiences of family law proceedings, I accept that they exchanged details on a subject which they may not have shared with others who had not recently gone through the same experience. Ms Roth had no financial interest in the outcome of these proceedings. I accept her evidence.
As Mr Findlay later recorded in an email to his family and friends, in June 2021, Mr Findlay also met Lakshmi Pillai: see [116]. They formed a relationship which continued until Mr Findlay's death. Mr Findlay told the defendant that he planned for Ms Pillai to move in with him at Centennial Park and to make changes to the house to accommodate their respective children. It does appear from Mr Findlay's emails that he was happy and settled in the new relationship, which he regarded as committed and intended to be for the long-term.
Apparently as a consequence of ASIC's investigation, Mr Findlay stepped down from his operational role at Vertel and moved his attention to a start-up telecommunications business, being the business he had earlier investigated with Ms Lintott, AetherX Pty Ltd. Mr Findlay lent some $214,000 to AetherX and also obtained a $660,000 bank loan for the company, secured by a mortgage over the Centennial Park house.
In July 2021, Mr Berryman began working with Mr Findlay as a management consultant. They spoke weekly in respect of Mr Findlay's business development ideas and plans. Mr Berryman advised Mr Findlay on establishing structures to operate businesses, on management matters, on corporate compliance and due diligence obligations, corporate practice and governance and other business matters. Mr Berryman made plain to Mr Findlay that he was not qualified to advise on personal finance, nor give financial or taxation advice.
Mr Berryman considered himself to be a very close friend of Mr Findlay. Mr Findlay said that there had been negotiations and a settlement with Ms Kemp but did not show Mr Berryman the documents formalising the family law settlement. Nor did Mr Berryman seek to see the documents "in the context of my business relationship with him. Those were matters I spoke about … in a friendly context". Neither discussed their wills with the other. Mr Berryman recalled that they both expressed a desire that their children be accommodated "and we talked a little about that, about the importance of those things, but we didn't dwell on those matters". Mr Findlay did not mention his new will to him.
I think the metes and bounds of Mr Berryman's relationship with Mr Findlay were more accurately revealed in cross-examination. Mr Berryman was retained by Mr Findlay as a management consultant in relation to Mr Findlay's business concerns. The extent to which they discussed personal matters appears to have been 'high level'. I consider it is unsurprising that Mr Findlay did not disclose his testamentary arrangements to Mr Berryman.
Mr Findlay also confided in Mr Berryman that his relationship with Ms Kemp caused him financial stress, where Mr Findlay did not have a regular income stream, but also spoke about how important Ms Kemp was to him and their children as she prioritised the children and their wellbeing and always had the children's best interests at heart. Mr Findlay may have said something to Mr Berryman along those lines, but I cannot overlook an abiding theme of Mr Findlay's emails with Ms Kemp on this topic, expressing concern that Ms Kemp was routinely off-loading the care of their children to the au pair, extracurricular activities or the kindness of others.
In October 2021, the couple continued to struggle in relation to parenting matters, with Mr Findlay suggesting that Ms Kemp lacked sense, "Your inability to accept being wrong defines you. I do actually feel sorry for you." In contrast, Ms Kemp said that in late 2021 she went for a walk with Mr Findlay in Centennial Park and he said, "one day, when I have more money that is not tied up with my family, I would like to give you more." I find this singularly unlikely. More likely is Ms Lintott's recollection that Mr Findlay said to her after the property settlement, "Lizzie says she that she needs more money. Surely, it's time that she got a job". Such a comment was reflected in Mr Findlay's emails: see [119], [120].
In September 2021, a GP referred Mr Findlay to a psychiatrist for an opinion and diagnostic clarification of ADHD, "He have issue with concentration, often engage in multiple task at time … Symptom are affecting him with work and home relationship." Mr Findlay saw the specialist in December 2021. The diagnosis is not known save that, in January 2022, Mr Findlay texted Ms Jackson "stated taking adhd [m]eds. Feel more focused which is good." I infer that the specialist's diagnosis was along the lines of ADHD; certainly, Mr Findlay appears to have been proceeding on that basis.
In March and April 2022, the couple's communications regarding parenting and financial matters remained difficult. On 17 March 2022, Mr Findlay emailed "Keep fighting Liz - it makes you happy in some perverse way." In April 2022, when the couple emailed regarding the provision of a new car, Ms Kemp complained "You disgust me. … you're a complete waste of space who does nothing to help or assist. You're nothing more than a controlling bully." Mr Findlay retorted, "It's you that are the controlling bully Liz. It's what you do the best." In June 2022, Mr Findlay emailed Ms Kemp, "I feel our relationship is going backwards rather than improving."
In July 2022, Mr Findlay complained that Ms Kemp was being "spiteful" in blocking Ms Pillai's calls to the children. Ms Kemp agreed that she blocked Ms Pillai's calls but rejoined that she had "NO problem with Lakshmi". Mr Findlay rejoined, "I just want your bullshit out of my life. You are so controlling and damaged but can never take any ownership of it - let alone fix it. … You are such an ungrateful person. You did not say thanks once for a $100k vehicle - it's just another entitlement you think you are owed because you fill up the kids' life with activities."
Mr Findlay turned 50 in August 2022. Ms Kemp did not attend Mr Findlay's birthday party. After the party, Ms Lintott drove the children home to Balgowlah. Ms Lintott said Ms Kemp did not come to the door or speak to her; after the children went inside, the door was closed and it was awkward. Mr Findlay emailed his birthday guests, thanking Ms Pillai for organising the party whilst "dealing with a poorly organised and chaotic me … My life has not been the same since I met Lakshmi 14 months ago."
In October 2022, the financial planner provided a Record of Advice to Mr Findlay in respect of the Findlay Superannuation Fund, where Ms Kemp had ceased to be a member as part of the family law settlement. In respect of estate planning, the financial planner noted, "You have told us that you do not wish to discuss your estate planning needs with us. Given the change in your circumstances (separation from Lizzie), we strongly suggest you review your estate planning arrangement. … You advised that you understand and are comfortable with" the risks of not addressing this matter.
Communications between the couple remained fractious regarding parenting and financial matters. In October 2022, Mr Findlay complained that Ms Kemp had organised the children's schedule without discussion. Ms Kemp replied, "Oh my goodness, I have HAD enough Andrew." Mr Findlay pressed to be included in working out a schedule, "That way I even get to see the work you do and have a chance to be grateful rather than feel like you just suit yourself." Ms Kemp was not interested. Mr Findlay pressed, "I am telling you that I want to be involved. Not just told. You don't like it. Why do you expect me to?"
The next day, Mr Findlay emailed again, "I will work with what is in this term but I want to sit down with you in future to go through the schedule before these are locked in. … I don't want to fight with you every term about this." (emphasis in original) Ms Kemp was not interested, "I do NOT CARE about your syncing with your girlfriend. … You need to pull your head in. Your disorganisation is your issue." Mr Findlay replied, "You are such a bully Liz … rather than deal with a simple request you dig up a mountain of drivel. … I disengage from … your barely comprehensible emails as I can't stand your aggressiveness. … I don't have to dance to your tune Liz. … Why don't you get a job next year now that [the youngest child] is at school and I will have the kids more. You might feel good about contributing to the support of the kids rather than just taking all the time." On 13 October 2022, Ms Kemp replied, "You can go stuff yourself you ungrateful human." Further unhelpful emails were exchanged in respect of an upcoming children's birthday party.
On 7 November 2022, Mr Findlay emailed Ms Kemp again, "Your continual disregard for and breach of the Parenting Agreement needs to stop." Ms Kemp was said to be engaged in "a form of bullying" by constantly threatening to take away his time with the children. Mr Findlay also enquired whether Ms Kemp was now working? Ms Kemp denied that she was in breach of any agreement, suggesting that he was just in a bad mood "Perhaps another fallout with Lakshimi. I have heard there are many. Please don't take it out on the children and myself. I am busy parenting them. … Please stop bullying and controlling me. … It's very sad the constant attacks." Further emails to agree on the parents' respective time with the children over the holiday period were unproductive, with Ms Kemp emailing "Honestly. … Get it right and stop emailing me pls."
According to Ms Kemp, Mr Findlay said to her in about 2023, "I know you have the children's needs as your priority. You put the children ahead of all else." Mr Findlay may have said something along these lines, although probably not in such unqualified terms. He did pay compliments to Ms Kemp from time to time and appeared mindful to do so. He also strongly criticised Ms Kemp from time to time for putting her personal and social commitments ahead of the children.
In June 2023, Mr Findlay was continuing to communicate with his siblings to try and finalise the separation of family assets, emailing Mr Berryman on 14 June 2023, "I don't like this." Ms Jackson agreed that there were multiple tensions and disagreements that grew out of the siblings' business and commercial interests, but they remained respectful and polite with each other. Further, "I do not consider it will assist the court in determining Andrew's testamentary intentions if I recount all the small and large ways in which I loved my brother and the means by which I remained connected to him in the last two years of his life."

Untimely death and aftermath

Mr Findlay drowned on 20 July 2023. Ms Jackson organised the funeral. Ms Kemp attended. The defendant gave a eulogy and was a pall bearer.
In the weeks after the funeral, Ms Jackson went to the Centennial Park house and began going through Mr Findlay's personal possessions and papers to locate anything that may be relevant to his Estate. Ms Jackson took possession of Mr Findlay's laptops.
On 22 August 2023, the defendant emailed Ms Kemp in respect of "Will and Probate", advising that he had met with Ms Jackson to get "the process for Probate and the will all sorted" but were still awaiting the death certificate. The defendant advised that he was conscious of Mr Findlay's commitments to Ms Kemp in the form of spousal and child support and wanted to make sure "they are still happening and you are not out of pocket. [N]o one wants that." The defendant offered to make these payments himself, or to "get it from the Findlay side" until probate was awarded, "It's my first time doing this, so I just want to make sure you are looked after and there are no gaps." Ms Kemp requested a copy of the will, "Silly question but assumed that it was signed and there will be no issue with Probate?". The defendant promptly replied, attaching his emails with Mr Findlay of 5 June 2019: see [53]-[55].
On 4 September 2023, Ms Kemp provided the defendant with the details of her solicitor. On 5 September 2023, the defendant advised that he had also retained a solicitor to advise on the application for probate. Ms Jackson delivered Mr Findlay's laptops to the defendant's solicitors. Ms Kemp emailed Ms Grimes, requesting a copy of Mr Findlay's last signed will, "it appears that the Will I was told existed in 2019 is unsigned." Ms Grimes provided Ms Kemp with the 2015 Will, being "the last will of Andrew that I am aware of".
On becoming aware that the 2015 Will was the last signed will made by Mr Findlay and that the defendant was relying upon the 2019 Document as Mr Findlay's last will, Ms Kemp changed the keypad code to the front door of the Centennial Park house. Ms Kemp had earlier taken possession of Mr Findlay's Mercedes AMG and transferred registration into her name. Ms Kemp and the children later moved back into the Centennial Park house.

These proceedings

The parties made extensive enquiries, none of which resulted in the production of another will. In March 2024, Ms Kemp commenced these proceedings, seeking a grant of probate in respect of the 2015 Will. In April 2024, the defendant filed a cross-claim, seeking a declaration under s 8 of the Succession Act that the 2019 Document constitutes Mr Findlay's last will.
The defendant contends that the 2019 Document embodied Mr Findlay's testamentary intentions and was intended by him to operate as his last will. The defendant relied on the fact that the document was created shortly after his separation from Ms Kemp, together with the contents of Mr Findlay's email to the defendant stating "This is my new will. I am yet to get it signed in front of Emma Grimes (my lawyer) but I intend [to]" and "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 will at least be clear." In addition, Mr Findlay told Mr Wahhab a week later that he had changed his will recently.
Ms Kemp does not admit that the 2019 Document embodies Mr Findlay's testamentary intentions, nor that he intended that the document would be a will. Rather, Mr Findlay was a sophisticated businessman and had previously executed a will. He knew the execution requirements under s 6 of the Succession Act for a will to be validly executed. Whilst Mr Findlay regularly dealt with solicitors, he did not execute the 2019 document as a will. Mr Findlay acknowledged in his emails to the defendant that he knew that he needed to print, sign and witness the document before it was a valid will. Whilst the couple had separated in May 2019, they continued to live under the same roof; the 2019 document was drafted "at the peak of an emotionally turbulent period".
Ms Kemp said that, until about mid-July 2019, the couple continued to attend counselling and navigate issues in their relationship "which were causing some disharmony" but continued to live together as a family and to attend social events as a couple. After mid-July 2019, discussion turned to the practicalities of formalising their separation. Notwithstanding this, they "continued to co-parent and conduct our personal, financial and business affairs together and cohesively with each other". Whilst they engaged in contested litigation in the Family Court, the matter was resolved through mediation and agreement.
Ms Kemp said that she and Mr Findlay had differences of opinion on parenting which caused periods of frustration but denied that their relationship was regularly volatile. Despite at times disagreeing, they continued to co-parent and saw each other eight to ten times a fortnight, discussing all things to do with their children. Ms Kemp said the couple continued to operate joint credit cards and bank account until the latter half of 2020 (although the contemporaneous emails suggest that joint accounts were maintained in accordance with the advice of their respective family law solicitors until the family law matter was resolved).
Ms Denniff also said that, after the couple's separation, she did not recall hearing any arguments between the two beyond an occasional "quip" in early 2020. Ms Denniff observed no major change in how the couple interacted with their children after announcing their separation. I defer to Ms Denniff's text messages as a more likely indicator of the post-separation climate: see [82].
I have endeavoured to set out in detail what the contemporaneous documents reveal about the post-separation relationship. These records simply do not support Ms Kemp's case.
Ms Kemp also said that Mr Findlay thought deeply about important matters and also changed his mind before forming a final view. As such, the 2019 Document was unlikely to have reflected his concluded testamentary intentions. Mr Berryman also observed that Mr Findlay solved problems by doing things carefully and properly. Against this, Ms Jackson had worked closely with her brother at Vertel for about 12 years. Ms Jackson agreed that her brother was a considered, highly intelligent and gifted person. However, he was also a "big picture" person, incredibly engaged with technical detail and the development of ideas but "not always able to complete the tasks or steps to get there". Ms Jackson gave some examples.

Submissions

The plaintiff submitted that Mr Findlay should be taken to have known that a will has to be executed with due formality. Knowing this, Mr Findlay would not have thought that there was a valid will by simply drafting the 2019 Document. The document itself contained an attestation clause indicating that the will needed to be signed and witnessed by two persons. Mr Findlay never chose to print the document, being a step necessary for execution. Mr Findlay was also said to have qualified the effect of the 2019 document in his email to the defendant on 5 June 2019, making it clear that he did not intend the document to operate as his will without more as it needed to be changed. The question was whether the 2019 Document embodied Mr Findlay's testamentary intentions and was intended by him to operate as his will, without more. That is, did Mr Findlay intend that that document form his final will and did not want any changes to that document: Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 160, [60] and [73] (Boddice J, with whom Gotterson JA agreeing).
The plaintiff submitted that the contemporaneous documents indicated that Mr Findlay was conflicted about his feelings. It could not be said that the parties had firmly resolved to separate by early June 2019; their relationship was "multi-faceted". It was said to be difficult to understand why Mr Findlay would have wanted to sever his finances from Ms Kemp when he was concurrently protesting his love for her and offering to change himself to save the relationship. The 2019 Document should be characterised as a momentary and passing record of a desire by Mr Findlay to stake out a position, to be shared with a potential mediator. (I reject this submission, for reasons earlier stated.) This was not a document which then represented his settled intentions.
The plaintiff submitted that Mr Findlay was not prepared to see the matter of a new will through to completion. The financial advisor was told that his "estate planning has been put on hold". The only conclusion was that Mr Findlay changed his mind. Mr Findlay was said to have made conflicting statements about his testamentary intentions to Ms Kemp and Mr Wahhab. Equally telling was said to be the fact that the conference with Mr Wahhab did not cause Mr Findlay to see Ms Grimes or taken any other step to execute the 2019 Document. Rather, he told no one else of the document. Ms Roth's evidence should be rejected where there was said to be significant doubt as to whether she ever had a relationship with Mr Findlay at all. (I have already addressed these submissions in the judgment.)
The plaintiff submitted that the suggestion that Mr Findlay was disorganised should not be accepted. Rather, Mr Findlay was unresolved about his feelings for Ms Kemp. He did not list the will in any of his 'to do' lists (although I note this is also consistent with Mr Findlay considering that the will was 'done'). Although he was dealing with a number of solicitors in the years which followed, Mr Findlay did not get anyone to assist him to execute the Will. He did not tell Ms Kemp about the 2019 Document (I have found that he did). Mr Findlay's emails were said to be inconsistent with an understanding on his part that the 2019 Document was his will. (I agree that Mr Findlay's email regarding his sisters' guardianship of the children whilst Ms Kemp was overseas is equivocal: see [81].)
The defendant submitted that, had the 2019 Document been executed in accordance with s 6, there was no doubt it would have been admitted to probate. The only issue was whether, on or after 5 June 2019, Mr Findlay intended the document to operate as his Will. The changes Mr Findlay made to the draft 2013 Will were considered and detailed. The most significant and rational change was to benefit his three children rather than the plaintiff. The fact that the testator's name appears typed at the foot of a document has been considered as pointing towards the adoption of the document: Re Yu (2013) 11 ASTLR 490; [2013] QSC 322 at [9]; Yazbek v Yazbek [2012] NSWSC 594 at [113], [116].
The defendant submitted there was no doubt that the document embodied Mr Findlay's testamentary intent. After separation from the plaintiff, Mr Findlay wanted to conclude his financial affairs with her and did so by a series of documents. He had every reason to make the testamentary disposition which he did in 2019. For whatever reason, he chose to create that document himself. It was consistent with his thoughts. The question was whether Mr Findlay intended the document to have an operative effect as a will, which turned on whether, by his conduct no later than 11 June 2019, he converted what might then be an inoperative document into one which had immediate operative effect.
There was no doubt Mr Findlay published his will by sending it by email to the defendant. Mr Findlay told the defendant, Mr Wahhab, probably Ms Kemp, and later Ms Roth about it. He also told Ms Lintott in 2021 that everything was organized and finalized between himself and Ms Kemp, and he was relieved to have it done. The fact that, after emailing the will to the defendant, Mr Findlay did nothing further to execute the document was said to be consistent with him considering the document to be a completed task. Mr Findlay was a non-lawyer. He had some business experience and knew that you could execute a will but not necessarily that you had to. He expressed to friends and his lawyer his satisfaction with what he had done in the sense that he had concluded the making of a Will. The Court should use the legislation for what it was intended, that is, to implement the intention of a testator where that intention was in writing.

The law

Section 6 of the Succession Act provides, in short, that a will is not valid unless it is in writing and signed by the testator and witnessed by two people. Section 8 permits the Court to dispense with these requirements in certain circumstances, relevantly: (emphasis added) "8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (1) This section applies to a document, or part of a document, that - (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms - (a) the deceased person's will - if the Court is satisfied that the person intended it to form his or her will, or … (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to - (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2)."
In Re Estate of Masters (decd); Hill v Plummer (1994) 33 NSWLR 446, Mahoney JA noted that the provision should be given a beneficial application. At 462: "There are, in the history of this branch of the law, many cases in which the intentions of a deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that, as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless - as in this case - there are contexts or circumstances that lead to the contrary conclusion." See likewise Kirby P at 452.
As to the requirement in s 8(2)(a) that "the Court is satisfied that the person intended [the document] to form his or her will," the principles were recently summarised by Meagher JA in Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22 at [17]-[18]: (citations omitted) "The requirement that the court be satisfied that the testator intended a document "form" his or her will goes to the testator's actual intention regarding the operative effect of the document in question. The court must be satisfied that the testator actually intended that the document "operate" and "without more", thereby constituting his or her will … In The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446 at 454-455 … Mahoney JA emphasised … "there is… a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will". … "Thus, the words of the document and evidence relevant to the deceased's intention … must establish on the balance of probabilities … that the deceased intended that the document should have a present operation as his or her will …"
The plaintiff relied on the formulation of this requirement in Lindsay v McGrath [2015] QCA 206, where Boddice J put it this way, "The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his or her final Will and did not want to make any changes to that document": at [60] (emphasis added). I take his Honour to mean that the deceased did not want to make any changes to the document before it took effect as their will. A document operates as a will as and from the date when the relevant intention existed: Hatsatouris v Hatsatouris [2001] NSWCA 408 at [57] (Powell JA). Of course, there is nothing preventing a testator from revoking an informal will by making a formal will or even another informal will. As Powell JA further explained in Hatsatouris v Hatsatouris at [59]: "However, while it is legitimate to have regard to statements made, and actions taken, by the relevant Deceased, after the relevant document has been brought into being or signed, in determining whether or not at the time when the document was brought into being or signed, the relevant Deceased had the relevant intention, once it be held that the relevant Deceased had the relevant intention recourse cannot be had to subsequent statements or events - unless they fall within the provisions of [s 11, revocation of will] - to deprive the relevant document of its status as a testamentary instrument. …"
As Windeyer AJ cautioned in National Australia Trustees Ltd v Fazey [2011] NSWSC 559, "Great care must be taken" in determining whether the deceased intended the document, without more, to form their will; "Many people write out proposals for their wills on pieces of paper headed 'will' but often these are no more than present thoughts not testamentary intentions and certainly not intended to be wills": at [18]. It is not sufficient if the document was intended to be a note of instructions, a draft will or a 'trial run': Oreski v Ikac [2008] WASCA 220 at [54] (Newnes AJA, with whom Martin CJ and McLure JA agreed). In Oreski v Ikac, the Court adopted Young CJ in Eq's observation in Macey v Finch [2002] NSWSC 933, "It is quite common for a person when he or she sees a draft of what has been typed up to realise that there needs to be some change in expression, or even in disposition": at [23].
Further, "because of the nature of probate, the consequences of any findings that may be made and the inability to hear any evidence from the deceased as to his actual intentions, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle": Fast v Rockman [2013] VSC 18 at [48] (Habersberger J); Re Estate of Schwartzkopff (2006) 94 SASR 465; [2006] SASC 131 at [36] (Gray J). In deciding whether the burden of proof has been discharged, the Court may take into account that the size of the estate is substantial and the differences between the documents being propounded: Smith v O'Neill [2014] NSWSC 1119 at [148] (Hallen J).
As to whether a testator intended that the document, without more, would operate as their will, the testator's previous will-making habits may be relevant but not dispositive. For example, in Estate of John James Dunn; Anderson v Scrivener [2002] NSWSC 900, Campbell J observed, "All his previous Wills had been formal wills, drafted by a solicitor. He went to a solicitor to draft a will even though he was, at least at one time, of the view that his solicitor charged too much for altering a will. There is no reason to believe that the Testator either knew, or suspected, that it was possible to make a will with anything other than full formality": at [43]. By contrast, in Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895, the fact that the deceased knew that, for a document to have legal effect as a will, it had to be signed, did not preclude the document being recognised where there was no suggestion that the deceased wanted to think further about what they had written, where the deceased's acts and words 'adopted' the document as their intended will, and where the deceased referred to the document as a will: at [285(e), (g)] (Hallen J).
That is, the testator's previous will-making habits "is only one of the factual circumstances which a court will take into account in assessing what ultimately is a question of fact as to whether the requisite intention existed": Fast v Rockman at [113]. Habersberger J there noted at [112]: "I accept that a deceased's awareness of the formalities required for a will may bear on a court's assessment as to whether he or she intended an informal document to [be] his or her will. Where a deceased is aware of those formalities and had an opportunity for the will to be executed in conformity with those requirements but failed to do so, that failure tends to point against the conclusion that the deceased intended the document to be his or her will. Conversely, a lack of full familiarity or awareness with those formalities may allow a court more readily to infer that the deceased intended the informal document to have legal effect according to its terms after his or her death. …"
Three examples of the application of these principles may assist. In Bell v Crewes [2011] NSWSC 1159, the testator reviewed an amended will and told his solicitor wife, "I have read the new will - that's what we want - that's it." His wife told him they would need to have the will signed, and he agreed, but died suddenly without having done so. White J declined to grant relief under s 8, including because it was clear that the deceased intended to execute his will at the same time as his wife executed her new will: at [20]. There was insufficient evidence to conclude that the deceased intended the document to operate before signature and before his wife's new will was operative: at [21].
A similar case to the circumstances at hand is Yazbek v Yazbek, where the testator created a Microsoft Word document on his laptop, with the file name "Will.doc", shortly before he went on an overseas trip. The testator told a business colleague, before getting into a taxi to the airport, that "If anything happens to me there is a will on my computer and also one at home in a drawer": at [33]-[34]. The testator died a year later. Slattery J was satisfied that the testator intended that the Microsoft Word document would form his will, where he named the electronic file "Will"; "This was his choice, not a default option associated with saving the document. … The act of naming the electronic file … supports the … requirement" that the deceased intended the document to form his will: at [113]. In addition, the testator told someone that he had made a "Will" and the tenor of that conversation was that the will-making process was complete: at [114]. The testator's imminent international travel was a reason for him to prepare an instrument which would operate, without more, upon his death, namely a will: at [115]. Further, the testator typed his name on the electronic document at the end, representing a degree of adoption of Will.doc as operative: at [116]. Finally, the document was found where the testator had said it would be; he had continued to keep what he told others was his "will": at [117].
By contrast, in Re Application of Tristram [2012] NSWSC 657, two documents were found on the deceased's computer with file names "willcalcs.xls" and "will.doc". The latter document set out the deceased's then thoughts as how he might divide his estate but was replete with unresolved issues and question marks, for example "Survivors???????". White J considered that the contents of the Microsoft Word document clearly demonstrated that the deceased did not consider that he had completed the task of making a will or even fully stating his testamentary intentions, where it appeared that the deceased had not completed his thinking: at [7], [9]. Further, the deceased did not tell key people that he had made a will, including his son or his de facto partner. The deceased died unexpectedly at a time when his daughter believed that her father felt that he had longer to live: at [11]. The fact that the deceased said to his daughter "I have changed my will" was not evidence of sufficient strength to show that he intended that either of the two computer documents to be his will, "Considering the evidence as a whole, I think it amounts to no more than the deceased's advising his daughter of changes to his thinking as to how he intended to leave his estate": at [13], [14].

Consideration

It is not in issue that the 2019 Document was a "document" within the meaning of s 3(1) of the Succession Act. Nor is it in issue that the 2019 Document "purports to state the testamentary intentions" of Mr Findlay: s 8(1)(a). The issue is whether Mr Findlay intended the 2019 Document "to form his … will": s 8(2)(a). The defendant contends that the relevant intention existed as at 5 June 2019. The defendant relies on the nature of the document and the context in which it was prepared (being shortly after his separation from Ms Kemp) together with statements made by Mr Findlay in his emails to the defendant on 5 June 2019 and to Mr Wahhab in conference on 11 June 2019. Statements made by Mr Findlay after this, for example, to Ms Roth, were relied on as supporting the existence of that intention as at 5 June 2019.
In considering whether the requirements of s 8(2)(a) have been satisfied, I have borne firmly in mind the nature of probate and the consequences of the findings I am asked to make, particularly in light of the size of the estate and the difference between the documents propounded by the parties. The estate is large. Admitting the 2019 Document to probate notwithstanding that it has not been executed in accordance with the requirements of the Succession Act will have significant consequences for Ms Kemp, on the one hand, and the children, on the other.

The document

In considering whether the requirements of s 8(2)(a) have been satisfied, the legislation calls for the Court to have regard to the document itself: chapeau to s 8(3). The 2019 Document certainly looks like a will. The 2019 Document does not contain any unresolved issues or questions. The experts found no evidence that the 2019 Document was modified or accessed after 5 June 2019. Both matters are consistent with the will-making process being complete. Dating the document is often an indication that the document is in its final form and intended to be operative: Re the Estate of Kiepas (dec'd); Twemlow v Kiepas [2004] NSWSC 452 at [31] (Campbell J). Mr Findlay dated the 2019 Document in two places for the following day, 5 June 2019, when he intended to execute the document in front of Ms Grimes.
The file name chosen by Mr Findlay is also consistent with the document being his will. Mr Findlay changed the file name from "ADF WILL.doc" to "ADF WILL NEW PLK". As earlier mentioned, the file name likely referred to Mr Findlay's will "post" Ms Kemp, recording changes to his will in light of that event. The file name also recorded the fact that the will was "NEW", being a replacement for the 2015 Will. The fact that Mr Findlay gave the electronic file this file name was his choice and an act supporting his intention that the document would form his will: Yazbek at [113].
An important feature of the 2019 Document is that it was not a draft prepared by Ms Grimes to be considered and approved by Mr Findlay, but prepared by the testator himself. As such, it may be distinguished from cases where the testator voiced approval of a will prepared by a solicitor but had yet to see the final version: for example, Bell v Crewes or The Application of Kencalo (In the Estate of Ruth Buharoff) (Unreported, Supreme Court of New South Wales, 23 October 1991), where the testatrix left a message with her solicitor that the will was "satisfactory - very good" but died before the will was engrossed in final form. Here, the testator endorsed each word by the drafting process. I have earlier described the extensive changes made by Mr Findlay to the 2013 Draft and repeat my observations at [46]-[48].
As to whether Mr Findlay wanted to make any changes to the 2019 Document, he advised the defendant in his third email, "I just sent you the will as I haven't changed it with my lawyer yet." As earlier mentioned, I read the italicised words as Mr Findlay explaining that he had not yet changed the 2015 Will. I do not accept Ms Kemp's submission that Mr Findlay was indicating that he wished to make further amendments to the 2019 Document with Ms Grimes. This construction of the email is confirmed by the next sentence, "If I went under a bus between now and then my wishes would at least be clear". That is, the 2019 Document recorded his testamentary intentions clearly as is. I attach no particular significance to Mr Findlay's reference to the 2019 Document recording his "wishes" as indicating that the 2019 Document was non-binding; there is no evidence that Mr Findlay had a detailed knowledge of the law of probate such that I would attach any particular significance to his choice of noun.
Nor do I accept Ms Kemp's submission that the preparation of the 2019 Document was merely a 'shot across the bows' to be deployed in a possible mediation with Ms Kemp. As I read it, each paragraph of the emails dealt with a separate subject. The paragraph of the relevant emails concerning the will was dealt with separately to the topic of a potential mediation.
Ms Kemp suggested that the 2019 Document could not be thought to reflect Mr Findlay's testamentary intentions, as the people appointed to perform various roles under that will made no sense. I disagree. The fact that Mr Findlay changed the beneficiary of his estate from Ms Kemp to the children might be thought rational in the circumstances. The fact that Mr Findlay changed the executor from Ms Kemp to the defendant was also unremarkable. Mr Findlay was clearly very close to the defendant, describing him as "the brother I never had … and a super kind and caring person".
The choice of Mr Downing as testamentary guardian for the children also made sense where Mr Findlay had known Mr Downing all his life and had become close friends with his wife, Ms Lintott. Mr Findlay was obviously comfortable with the children interacting with Mr Downing, Ms Lintott and their children, where the families lived close by. He regularly visited them with the children.
The replacement of Ms Kemp's mother with Ms Moffat as a substitute testamentary guardian also made sense. Mr Findlay later described his younger sister's "softness" and her ability to make his children "feel OK and safe". The sisters' roles under the new will were largely unchanged; they remained substitutionary beneficiaries, executors and testamentary guardians. There is nothing to suggest that Mr Findlay's relationships with his sisters at that point in time were other than good. In short, Mr Findlay's choices appear wise and considered.

Manner of execution

The legislation requires the Court to consider any evidence relating to the manner in which the document was executed: s 8(3)(a). The 2019 Document was not executed. The experts found no evidence that the 2019 Document was printed after 5 June 2019. Ms Kemp said it would have been easy for Mr Findlay to print the document at home if he had wished, as there was a printer at the Centennial Park house. Execution of the document could have been witnessed by their au pair or neighbours. If Mr Findlay was at Vertel's offices at the time, printing and executing the document would have been readily achievable. Ms Jackson said Vertel's offices had some 35 employees at the time, including in-house counsel. I accept this.
It is convenient at this juncture to consider Mr Findlay's will-making habits and the extent of his knowledge of the requirements to make a valid will. Mr Findlay had no will-making habits, having only apparently made one will before preparing the 2019 Document.
There is no evidence that Mr Findlay was well-versed in the validity of wills. As earlier mentioned, from the process of making the 2015 Will, Mr Findlay was aware that he needed to sign the document in front of Ms Grimes but did not appreciate that the will could be witnessed by someone other than a solicitor, or that the will needed to be witnessed by two people in order to be validly executed. Ms Grimes did not recall giving an explanation to Mr Findlay as to why he had to sign the will. Ms Grimes did not agree that she had a practice of explaining how to make a will that was valid, "Not in those terms". Further, "I don't recall ever saying you need to sign the will in front of two witnesses." Nor did Ms Grimes accept that she explained to Mr Findlay that he needed two witnesses at the time he executed the will, "Not in so many words." As an experienced businessperson, Mr Findlay likely thought that he needed to sign the 2019 Document, but there was no evidence that Mr Findlay knew that a will had to be executed before it was valid.

Testator's statements

The legislation invites the Court to have regard to any evidence of the testamentary intentions of Mr Findlay, including statements which he made: s 8(3)(b). Mr Findlay immediately told the person most affected by the 2019 Document - Ms Kemp - that he had changed his will and that the changes did not benefit her. Where he conveyed at least that information, I cannot fathom that Mr Findlay would not also have mentioned that the changes benefitted their children. He also most likely told her, at least, that Ms Moffat was now a (substitute) testamentary guardian of the children. He was obviously clear in what he told Ms Kemp, where she later emailed, "you changed your will".
He also immediately told the new executor, to whom he provided a copy of the document. Mr Findlay's three emails to the defendant on 5 June 2019 record his understanding that the 2019 Document was a will: "This is my new will." and "I just sent you the will … If I went under a bus between now and then my wishes would at least be clear." That is, if he came to an untimely end before he formally executed the new will with Ms Grimes, then he regarded the 2019 Document as recording his intentions as to how his estate would be distributed on his death. He also told the defendant on 6 June 2019 that it was "all sorted. I intend to get it signed. It's all taken care of."
Mr Findlay told Mr Wahhab a week later that he had changed his will recently and that the new will gave all his assets to the children. Mr Findlay's instructions record his understanding that the 2019 Document was a will and that it was effective to change the 2015 Will. Nor did Mr Findlay think it necessary to ask Mr Wahhab to do anything further to finalise the document or witness its execution.
Mr Wahhab also said that, in the following two years in which he acted for Mr Findlay, Mr Wahhab formed the opinion that Mr Findlay did not want his former de facto spouse to benefit from his estate. That much is clear. I do not accept Ms Kemp's evidence that Mr Findlay told her he wanted to give her more money, nor Ms Kemp's submission that Mr Findlay remained content to leave his estate to her as she "put the children ahead of all else".
Mr Findlay's later statements to Ms Roth are consistent with him having formed an intention, in June 2019, that the 2019 Document was intended to form his will. He said that his will had been changed and that his children, not Ms Kemp, would benefit from his estate. The tenor of Mr Findlay's conversations with Ms Kemp, the defendant, Mr Wahhab and Ms Roth indicate that the will-making process was complete: Yazbek at [114].
There are several people that Mr Findlay did not tell about the 2019 Document. Ms Grimes did she recall having any conversations with Mr Findlay about his will after the 2015 Will. Ms Lintott said that Mr Findlay did not discuss the 2019 Document with her, nor the issue of guardianship of his children. Ms Jackson had not seen the 2019 Document prior to Mr Findlay's death and said her brother did not discuss changes to his will with her. He did not tell the au pair or a management consultant who began working for him two years later, nor his accountant, who was giving advice on other matters. Mr Findlay was comfortable with the arrangements he had made in respect of his will and did not wish to engage the financial planner's services in that regard; rather, "You advise that you understand and are comfortable with" the risks of not addressing the matter. The only person in this group who Mr Findlay might have been expected to tell was Ms Grimes. It is unsurprising that he did not tell the others.

Other matters

The legislation also makes plain that s 8(3) does not limit the matters to which the Court may have regard in making a decision as to whether a document was intended by a person to form their will: s 8(4). Here, I think the evidence provides an explanation as to why Mr Findlay did not complete the exercise of changing his will with Ms Grimes. The main reason is that this proved to be a most tumultuous period in Mr Findlay's life, which he later described to Ms Moffat as "quite frankly a shit show". Not only had his relationship with Ms Kemp broken down, but his mother died and his relations with his sisters encountered substantial difficulties. To this could be added an ASIC raid and insider trading investigation, together with a major change in his work arrangements, moving from Vertel to AetherX. To this could also be added the drain of family law proceedings, the challenges of single parenting and the demands of new relationships.
There is also evidence from Ms Masero, Ms Kemp, Ms Jackson and Mr Findlay that Mr Findlay struggled to manage the multiple demands on his time and resources: see [37], [113], [119], [116] and [135]. Mr Findlay described himself as "poorly organised and chaotic". He saw a specialist in relation to ADHD and took medication following that consultation. Mr Findlay was variously described by those around him as disorganised, chaotic, struggling with concentration and unable to complete tasks. Whilst any person would, I expect, have struggled to deal with the multiple, significant challenges which Mr Findlay faced from 2019 on, he may have particularly struggled to see all tasks through to completion in those trying years.
Relevantly, Mr Findlay does not appear to have given instructions to Mr Wahhab to seek court approval in respect of the Deed of Release signed at the conclusion of the family law proceedings. Nor did Mr Findlay action the share transfer form in respect of RGB Investments, such that Ms Kemp remains a director of that company. Nor did he take any steps to revoke the Enduring Power of Attorney or the Appointment of Enduring Guardian, where it can hardly be thought that he wanted Ms Kemp to continue to hold those positions. That is, Mr Findlay left several 'loose ends' at the conclusion of the dissolution of his relationship with Ms Kemp.

Conclusion

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, "I am calm and accepting of it." 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.
The quality of Mr Findlay's amendment of the 2013 Draft suggests that he had some familiarity with drafting. He did a careful job. As an businessperson, Mr Findlay likely thought that it was necessary to sign the 2019 Document. He clearly intended to do so, stating as much in his first and third emails to the defendant on 5 June 2019 and also when he saw the defendant on 6 June 2019. But there was no evidence that Mr Findlay knew that a will had to be executed to be valid. Nor did he consider that non-execution of the 2019 Document was fatal to its validity, emailing the defendant, "If I went under a bus between now and [changing my 2015 Will with Ms Grimes], then my wishes would at least be clear". He told the defendant it was "all sorted" and "all taken care of". Mr Findlay told Mr Wahhab that he had changed his will. He later expressed the same understanding to Ms Roth. He resisted the financial planner's approaches to get involved in the subject.
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. Whilst Ms Kemp submitted that the absence of any reference to the 2019 Document, or the execution of that document, in Mr Findlay's various 'to do' lists in his notebooks was significant, another way of looking at it is that Mr Findlay made no note as he considered he had adequately dealt with this matter; he regarded the 2019 Document as 'fit for purpose'.
Mr Findlay did not get around to having the 2019 Document printed and signed before two witnesses. This was another 'loose end' that got lost in the turbulent years which followed, not helped by his personal difficulties with organisation and concentration. But I am satisfied having regard to the document itself, the extent of Mr Findlay's knowledge and understanding of the requirements for making a valid will, his statements to others and the surrounding circumstances that, in June 2019, Mr Findlay actually intended the 2019 Document to operate as his will, without more. By his acts and words, Mr Findlay 'adopted' the document as his intended will and he referred to the document as a will to people who needed to know. I am satisfied that Mr Findlay intended the 2019 Document to form his will.

Orders

For these reasons, I make the following orders: 1. Declare pursuant to s 8 of the Succession Act 2006 (NSW) that the electronic Microsoft word document titled "ADF WILL NEW PLK" dated 5 June 2019 ("the 2019 Will") and emailed on that date to the Cross-Claimant constitutes the last will of ANDREW DAVID FINDLAY ("the deceased"). 2. Order that Probate in solemn form of the will dated 5 June 2019 of the deceased who died on 20 July 2023 be granted to David William Findlay, the Executor named therein. 3. Order that proceedings be remitted to the Registrar in Probate to complete the grant in accordance with the Rules of the Court. 4. Order that the defendant be indemnified for his costs of these proceedings from the Estate of the late ANDREW DAVID FINDLAY. 5. Order the plaintiff to pay the defendant's costs of the proceedings, either directly or by replenishing the Estate in respect of the defendant's costs. 6. Parties to notify any errors or omissions within 7 days. 7. Liberty to apply within 7 days if either party seeks a special costs order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2024

Succession Act 2006(NSW)ss 6, 8(2)(a)

(2020) 102 NSWLR 403

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