Probate Of An Unsigned Email Attachment? Where there’s an (unexecuted) Will, there’s a way.
Is close enough good enough when preparing one’s last Will and Testament? Possibly. The recent case of Kemp v Findlay [2025] NSWCA 46 was a useful illustration of the circumstances in which a court will relax the formalities requirements, having granted probate over an unsigned word document attached to an email.
What are the formality requirements?
Ordinarily, a Will in Queensland must comply with certain “formality” requirements contained in Section 10 of the Succession Act (Qld) (“the Act”). These include that:
- The Will must be in writing;
- Signed by the testator (or someone else at their direction) in the presence of two witnesses; and
- At least two of the witnesses must attest and sign the Will.
(“formality requirements”)
The formality requirements are intended to be a safeguard to ensure the integrity of perhaps the most consequential document a person can sign. Understandably, a Will that does not comply with the above formalities is invalid on its face, and incapable of a grant of probate without further explanation to the court.
How can a court relax the formality requirements?
The law recognises that for a multitude of reasons, testators do not always get the chance to formally execute a final Will before their time comes. One answer to this dilemma is contained in section 18 of the Act – “the dispensation power”, which allows a court to grant probate over an improperly executed Will in certain circumstances.
The most important inquiry is whether the Deceased intended their document to act as a Will, even if they hadn’t complied with the formality requirements.
When can Section 18 “save a Will”?
Section 18 applies to a document that “purports to state the testamentary intentions of the deceased, which has not complied with the formality requirements in section 10.”
A court must be satisfied of three factors before granting dispensation under section 18:
- There was a document;
- The document purported to embody testamentary intentions; and
- The document itself was intended by the deceased to be their last Will.
A “document” for the purposes of section 18 is defined quite broadly, including “any disc, tape or other article or any material from which sound, images, writings or messages are capable of being produced or reproduced.” Some notably examples to which s18 successfully applied include unsent text messages, smartphone notes and video recordings of the Deceased.
A document that “embodies testamentary intention” will often be indicated by use of the language expected of a Will. It is necessary that the words contemplate disposal of the deceased’s assets after their death.
Finally, the document must be capable of operating as a Will on its own, without any further steps to be taken. For example, a solicitor’s meeting notes (even signed by the client) following a meeting with a client to take instructions as to a new Will cannot be considered a testamentary document on their own.
Kemp v Findlay [2025] NSWCA 46 – dispensation for an unsigned word document in an email.
The New South Wales Court of Appeal (NSWCA) recently dismissed an appeal over the Primary Judge’s decision to grant dispensation of a Will under the equivalent provision in New South Wales.
The Appellant Ms Kemp, commenced a de facto relationship with the deceased in 2011, having three children. The Deceased prepared a Will in 2015 (“the 2015 Will”) which left the entirety of his estate to Ms Kemp.
The relationship ended in 2019, and on 11 June 2019 the Deceased sent to his cousin Mr Findlay, a word document stating that:
“[t]his is my new will. I am yet to get it signed in front of Emma Grimes (my lawyer) but I intend do [sic]” and in a later email;
“[i]f I went under a bus between now and then my wishes would at least be clear.” (“2019 document”)
The 2019 document was never printed nor executed. Relevantly, the Deceased under the 2019 Document appoint Mr Findlay as executor and left his estate to his children instead of Ms Kemp. The Deceased died in 2023.
Ms Kemp opposed the application for dispensation, claiming that the 2015 Will was the last valid Will of the deceased.
In the first instance, Her Honour Rees J found that the 2019 Document was intended to be the Last Will of the Deceased. Her Honour concluded:
“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.
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…
I am satisfied having regard to the document itself….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…and intended the 2019 Document to form his will.”
Which factors suggest a document is a Will?
In arriving at her conclusion, Her Honour considered that the following factors suggested that the 2019 Document met the statutory requirements for dispensation:
- The document looked like a Will – it was drafted based on the 2015 Will prepared by a law firm;
- Expert evidence revealed that no modification of the Document had occurred since June 2015;
- The document was dated;
- The name of the file was “ADF WILL NEW PLK” which is appropriate of a Will;
- The document was prepared by the Deceased himself;
- Appointment of reasonable and justifiable executors, guardians, and beneficiaries; and
- The Document was sent with an email that said “If I went under a bus between now and then my wishes would at least be clear.”
On Appeal
Ms Kemp challenged the primary judgment on various grounds, including that the primary judge erred in concluding:
- that the 2019 Document, without more, constituted the deceased’s final Will,
- that there was no evidence that the deceased knew that a Will had to be executed, signed and witnessed before it was valid, and
- that the deceased told the appellant about the 2019 Document on 5 June 2019 or later in 2019. Ms Kemp also challenged the order made by the primary judge that she should pay 75% of the respondent’s costs.
The Court of Appeal held that it was a weak basis to infer that the Deceased was aware of the witnessing requirement, solely because his 2015 Will had been witnessed correctly.
The appeal was notably dismissed with costs issued against the appellant.
Key Takeaways
There is no substitute for proper preparation and execution of a Will upon the advice of a suitably experienced lawyer. Incurring the cost of legal advice in the short term may save your personal representative and family the emotional and financial cost of litigating the estate that you leave.
At the forefront of any estate litigation should be the size of the estate and the cost of proceedings that Will be incurred. While the appellant ran a seemingly flawed appeal, she stood to inherit the entire estate if the 2015 Will were upheld. An experienced and commercially minded lawyer can assist you in determining when a risk should be taken.
If you find yourself in this situation, either as an executor seeking probate of an informal Will, or a beneficiary seeking to rely on a former Will, contact our partner, Michael Sing to assist you.
