Key Lessons from Kemp v Findlay [2025] NSWCA 46

When Andrew Findlay passed away, he left behind more than just an estate—he left a ticking time bomb of legal uncertainty. An updated will, detailing his clear wishes, was sitting on his computer. There was just one problem: he had never signed it.

This oversight sparked a fierce court battle between his former partner and his cousin on behalf of his children, a battle that recently culminated in a significant ruling from the NSW Court of Appeal. The case of Kemp v Findlay serves as a powerful cautionary tale for anyone advising clients on estate planning. It highlights the very real dangers of informal documents and the costly, emotional litigation that can follow. While this case deals with a will, there are countless cases that involve incomplete Binding Death Benefit Nominations in an SMSF and the Succession Act 2006 (or equivalent in your state) may not help as SMSFs rely on the SIS Act and Trust Deed . Also a nomination from an SMSF to a member’s Legal Personal Representative may then lead to a estate challenge.

So, what are the key takeaways? Let’s break it down.

A Quick Case Summary

• The 2015 Will: Mr. Findlay had a formal will leaving his estate to his then-partner, Elizabeth Kemp.
• The 2019 Document: After separating from Ms. Kemp in 2019, he drafted a new will on his computer. This document left his estate to his three children and appointed his cousin, David Findlay, as executor. Crucially, it was never printed, signed, or witnessed.
• The Dispute: Upon Mr. Findlay’s death in 2023, both Ms. Kemp (relying on the 2015 Will) and David Findlay (relying on the 2019 document) applied for probate.
• The Outcome: The Court applied Section 8 of the Succession Act 2006 (NSW), which allows informal documents to be treated as a will if the Court is satisfied the deceased intended it to be their final will. The Court found the 2019 document did reflect Mr. Findlay’s clear intentions and admitted it to probate. Ms. Kemp was also ordered to pay 75% of the children’s legal costs.

---

🔑 5 Key Lessons for Advisers and SMSF Trustees from Kemp v Findlay

1. Never Rely on Section 8 as a Planning Tool

The big takeaway is not that “unsigned wills are fine.” The takeaway is that Section 8 is a remedial, last-resort solution, not a substitute for proper execution. While the court can validate informal documents, the process is uncertain, expensive, and hinges on convincing a judge of the deceased’s intention. Advise clients that proper signing and witnessing is the only way to guarantee certainty and avoid a fight.

SMSFs – While Section 8 does not apply to BDBNs directly, a BDBN can be subject to a family provision claim under the Succession Act 2006, where the court can, in certain circumstances, declare a death benefit as part of a notional estate to meet court-ordered provisions. The distribution of a superannuation death benefit is primarily determined by the rules of the superannuation fund and the Superannuation Industry (Supervision) Act 1993 (SIS Act). Section 59(1A) of the SISA, in conjunction with Regulation 6.17A of the SIS Regulations, sets out the strict technical requirements for a BDBN to be valid. 

As many SMSF members direct their Superannuation to be dealt with via their Wills, this means there is more room for error as the Binding Death Nomination and/or the Will could be challenged.

2. Document Everything & Communicate Clearly

Mr. Findlay’s failure to clearly communicate his final intentions to his solicitor and family directly fuelled the dispute. Advise your clients to:

• Formally instruct their solicitor immediately after a major life event (e.g., separation, marriage, birth of a child).
• Clearly communicate their wishes to their intended executor and key beneficiaries to prevent surprise and doubt.
• With a Binding Death Benefit Nomination (BDBN) the member should:
  • Firstly, decide if a BDBN is the preferred option or do you deliberately wish to leave the decision and flexibility to the remaining trustees of the fund?
  • For pension accounts you may opt to use Reversionary Pensions for more certainty.
  • Complete the Binding Death Benefit Nomination (Preferably a Non-Lapsing BDBN) and sign and have it witnessed.
  • Then submit the signed form to the trustees of the SMSF and have the trustees minute the receipt and acceptance of the BDBN.
  • Also ensure that the SMSF Accountant/Administrator is provided a copy and updates the SMSF software they use to display that nomination in the annual financials (in the Member Statements) so that it can trigger a reminder to review them.

3. Include Regular Estate Plan Reviews

This case is a textbook example of why wills and BDBNs must be updated. A separation is one of the most critical times to review an estate plan. Proactively schedule reviews in your annual planning review with clients, especially after major life events to ensure their documents reflect their current circumstances and relationships.

For SMSFs: Review the current nominations and see if strategies like withdrawal and recontributions now mean that funds can be directly left to adult children or others because the taxable component has been reduced. You might leave a Mixed-Tax Components pension to the spouse but allocate Tax-Free Component pensions to others directly or via your estate.

4. Warn Clients Against “DIY” Drafts (Read the Deed for SMSFs)

The existence of an unsigned, unofficial document was the catalyst for years of litigation. Counsel your clients strongly against:

• Creating draft wills or notes without immediate formalisation.
• Storing important documents haphazardly. An unsigned draft can be misinterpreted as a final will, creating confusion and conflict.
• For BDBN’s be careful with templates and if you are using one provided by your Trust Deed provider make sure it meets your needs or have your lawyer draft a more personalised one up for you.

5. Highlight the Staggering Cost of Litigation

The court’s costs order against Ms. Kemp underscores a harsh reality: estate litigation can quickly erode the value of the estate for everyone involved. Use this case to show clients the tangible financial risk of unclear planning. Comprehensive, professionally-executed estate planning and SMSF documents are an investment in protecting their legacy and their family’s future.

The Bottom Line

Kemp v Findlay is a stark reminder that the rules of formal execution exist for a reason: to provide clarity and prevent disputes. While the court’s flexible approach ensured Mr. Findlay’s intentions were ultimately honoured, it came at a significant financial and emotional cost to his family.

For SMSFs:  The Trust Deed is often the crucial source outlining how formal execution of a BDBN is to be made. Take the time to read it carefully and don’t assume it complies with the SIS Act either.

As advisers, our role is to steer clients away from this precarious path. By emphasising proper execution, clear communication, and regular reviews, we can help them ensure their wishes are carried out smoothly, preserving their assets and their family’s harmony.

Have you reviewed your wills and BDBNs recently? This case is the perfect conversation starter for SMSF Trustees to encourage proactive estate planning with your partner or other SMSF member’s. Also a key issue for professionals to raise with their clients and possibly refer to an estate planning specialist.

Stay informed, seek advice and adjust strategies accordingly!

Warning before you jump into implementation of any strategy without checking your personal circumstances.

Are you looking for an advisor that will keep you up to date and provide guidance and tips like in this blog? then why now contact me at our Castle Hill or Windsor office in Northwest Sydney to arrange a one-on-one consultation, just click the Schedule Now button up on the left to find the appointment options.

Please consider passing on this article to family or friends. Pay it forward!

Liam Shorte B.Bus FSSA™ AFP

Financial Planner & Fellow SMSF Specialist Advisor™

      

Tel: 02 9899 3693, Mobile: 0413 936 299

• PO Box 6002 NORWEST NSW 2153
• Suite 40, 8 Victoria Ave, Castle Hill NSW 2154
• Suite 4, 1 Dight St., Windsor NSW 2756

Corporate Authorised Representative of Viridian Advisory Pty Ltd ABN 34 605 438 042, AFSL 476223

This information has been prepared without taking into account your objectives, financial situation, or needs. Because of this, you should, before acting on this information, consider its appropriateness, having regard to your objectives, financial situation, and needs. This website provides an overview or summary only and it should not be considered a comprehensive statement on any matter or relied upon as such.