Informal Testamentary Documents in Estate Litigation

Tonkin Drysdale Partners’ Estate Litigation Specialist and Partner, Dominic Tonkin, discusses the recent Supreme Court decision in Peek v Wheatley [2025] NSWSC 554 which examined the validity of an informal will discovered on the iPhone of the deceased.

This case highlights the complexities surrounding informal testamentary documents and the Court’s approach to determining testamentary intent under section 8 of the Succession Act 2006 (NSW).

Case Background
Colin Peek passed away on 16 August 2022 at the age of 79. During a search of his home, solicitor Peter Dawson and friend Brad Wheatley discovered a document titled “Last Will of Colin L. Peek” saved in the Notes app on Mr. Peek’s iPhone. The document bequeathed the majority of the estate, valued at approximately $10.3 million, to Mr. Wheatley, with a smaller gift to Mr. Peek’s brother, Ronald William Peek. Mr. Wheatley, named as executor in the document, applied for probate under section 8 of the Succession Act, arguing that the iPhone note constituted a valid informal will. Ronald Peek disputed this, asserting the document did not reflect his brother’s testamentary intentions.

Court’s Analysis
His Honour Justice Richmond examined whether the iPhone note satisfied the requirements of an informal will under section 8 of the Succession Act. This provision allows the Court to dispense with certain formalities if it is satisfied that the deceased intended the document to operate as their will.
In assessing the case, the Court considered the document’s title, content, and the circumstances surrounding its creation. Despite these factors, the Court found insufficient evidence to establish that the note was intended to be a will. As a result, the application for probate was denied, and letters of administration were granted to Ronald Peek, the deceased’s brother.

Key Takeaways

1. • Importance of Clear Testamentary Intent
     This decision underscores the necessity for clear and unequivocal evidence that a document reflects the deceased’s intention to serve as their will. Here, the informal nature of the iPhone note and lack of corroborating evidence led the Court to conclude it did not meet this requirement.

• • Risks of Informal Wills
    The case highlights the pitfalls of relying on informal documents, such as electronic notes, instead of formally executed wills. Such documents often lack required formalities and evidentiary support, which can lead to disputes and, ultimately, intestacy.

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  • Role of Legal Professionals in Estate Planning
    The involvement of legal professionals is crucial in preparing and executing valid wills. This case raised concerns over conflicts of interest due to the solicitor’s dual role as a beneficiary and applicant for probate, reminding practitioners of their ethical obligations in estate matters.