Recent Australian Decisions

NSW Court of Appeal

Kemp v Findlay [2025] NSWCA 46

(27 March 2025)

Unsigned will found to be valid will for $13.5m estate In 2011, the deceased commenced a de facto relationship with a woman and in 2015 executed a will leaving the whole of his estate to her. The deceased and the woman separated in 2019 and soon after the deceased prepared a new will leaving the whole of his estate to his children (the children of the woman). On 5 June 2019, the deceased emailed a copy of the unsigned will to his cousin with the words “[this is my new will. I am yet to get it signed in front of [my lawyer] but I intend do [sic]”. The deceased never got around to executing the document and died in July 2023. The mother commenced proceedings seeking probate for the 2015 will. The children sought probate of the 2019 will. he Court of Appeal upheld the Supreme Court’s decision to admit the 2019 will to probate, resulting in the children receiving the benefit.

Supreme Court of Western Australia

Harris v The Public Trustee as executor [2025] WASC 128

(17 April 2025)

Court overrides the terms of a Will by ending Testamentary Trust and allowing two children immediate access to $5m estate

The deceased died on 12 October 2023 leaving a will which left the residue of his estate (estimated at $4.9m) to a Testamentary Trust for the benefit of his two children.

The issue though was that the Testamentary Trust was to remain in effect for 21 years, preventing his children from receiving any portion of the capital for 21 years.

The two children brought proceedings to end the Trust early.

The Court considered the relevant legal principles that apply under section 90 of the Trustee Act 1962 (WA) and made orders ending the Trust early allowing the children immediate access to the estate, thereby overriding the deceased’s wishes.

Supreme Court of NSW

Brikcius v Brikcius [2025] NSWSC 342

(22 April 2025)

Two brothers successful in kicking 3rd brother out of mother’s property The plaintiff (aged 88) was the registered proprietor of a unit in Vaucluse, NSW. The plaintiff had allowed one of her three sons to reside in the property. After the plaintiff lost the ability to manage her own affairs, two of her sons, who were Attorneys under an Enduring Power of Attorney, brought proceedings to remove the 3rd son from the property so the property could be sold to pay for the plaintiff’s care. The court was satisfied that the two brothers had power to bring the proceedings and that they were acting in good faith. he made orders granting possession of the property to the plaintiff giving the 3rd brother 6 weeks to vacate.

Supreme Court of the ACT

In the Estate of Cornwell [2025] ACTSC 118

(27 March 2025)

Will signed via video call from Vietnam found to be valid

The deceased, who was a resident of the ACT, was diagnosed with terminal cancer while in Vietnam.

On 21 July 2023, he executed a will via video call with his lawyer and a nurse. However, the lawyer had failed to consider the laws that apply in the ACT resulting in the will not being executed in accordance with the formal requirements under ACT law.

The court considered the laws that apply to ‘informal wills’ and found that notwithstanding the will was not executed in accordance with the formal requirements of the Wills Act 1968 (ACT), the informal will nevertheless constituted the last will and testament of the deceased.

Interestingly, there was no reference to whether the solicitor was ordered to pay the cost of the proceedings given they arose because of the solicitor’s conduct.