In the recent NSW Supreme Court decision of Peek v Wheatley [2025] NSWSC 55, the court was asked to determine whether an informal document in the ‘Notes’ application on an iPhone could constitute a valid will under the Succession Act 2006 (NSW) (‘Succession Act’).
The primary issue was whether the ‘Note’ indicated a final intention to be used as a will and have immediate legal effect, or whether the Note was simply a draft that the deceased intended to give legal effect at a later date.
Overview of key facts
The case involved a property developer named Colin Peek. He failed to execute a formally written will before he died in 2022. Upon his death, his iPhone was found to contain instructions written by him in the ‘Notes’ application. Under those instructions, the majority of his estate would be given to the defendant (Mr Wheatley). A smaller proportion of the estate would be given to the plaintiff (Ronald), who was the deceased’s brother. The remainder of the estate was to be divided up amongst friends and included a payment to the deceased’s solicitor (Mr Dawson).
The plaintiff argued that the Note was never intended to be a final binding will. He was the deceased’s only sibling and would therefore claim the entirely of the deceased’s estate if the Note was found to be invalid. Not surprisingly, the defendant sought a declaration that the informal Note found in the deceased’s iPhone was valid.
The Succession Act
Section 8 of the Succession Act allows the court to potentially recognise an informally written will. This section was applied in Peek v Wheatley to determine whether the informal Note written by the deceased could be recognised as a valid will.
Section 8 states that:
- There must be a “document” within the meaning of section 3(1) of the Succession Act.
- The document must state the deceased’s intentions as to how their estate is to be divided on their death.
- The deceased must have intended for the document to form part of their final will.
Factors considered by the court
Firstly, the court identified that writing a will in the ‘Notes’ section on an iPhone was obviously an unusual place to write your final testimony.
Secondly, there was no evidence that the deceased had notified anyone that he intended the Note to make up a formal will document.
Thirdly, the deceased had finalised other legal matters he was involved in by writing formal documents that were validly enacted.
Key findings of the court
- After examining the contents of the Note, the court found that the deceased did not intend for the Note to operate as a formal will.
- A conflict of interest also arose with Mr Dawson, who prepared the affidavit evidence for the defendant. Mr Dawson was acting as the solicitor for the defendant but was also a beneficiary under the terms of the Note. This meant that Mr Dawson had a material financial interest in the contents of the estate.
Conclusion
After considering the various evidence and arguments, the court held that the deceased did not intend for the Note to operate as a formally written will and have immediate legal effect. The court stated that it was likely the deceased intended for the Note to undergo further revision before its contends became legally binding. Therefore, section 8 of the Succession Act could not be applied to give effect to the informal Note.
The case highlighted that whilst an informal note on an iPhone could be recognised as a validly enacted will, there must be a clear intention for the document to become part of the writer’s final testimony without requiring further action to be taken.
Contact our specialist team dedicated to Wills & Estate Planning if you would like more information or advice
Matthews Folbigg Lawyers has a specialist team dedicated to Wills & Estate Planning. If you would like more information or advice in relation to drafting a will or the administration of a deceased estate, contact Kay Fernando at kayf@matthewsfolbigg.com.au
