Can a homemade Will be valid? Can a few unclear words in a Will trigger a dispute over millions of dollars? Recent decisions of NSW courts show why careful estate planning matters, and why the outcome of a Will dispute can depend on the precise wording of a document and the evidence of the deceased person’s intentions.
Two decisions provide important lessons for anyone making a Will in New South Wales:
- Wheatley v Peek [2025] NSWCA 265, in which the NSW Court of Appeal accepted a document saved in an iPhone’s Notes application as a valid informal Will.
- The Estate of Wade [2026] NSWSC 1225, in which the Supreme Court considered ambiguous wording in a Will prepared using an online template and determined who was entitled to the remaining estate.
Although the cases involved different issues, both demonstrate the risks of relying on documents that have not been professionally prepared. They also highlight the importance of understanding when a document can legally operate as a Will, how courts interpret unclear provisions, and when an inheritance dispute may require court proceedings.
Can a homemade Will be valid in NSW?
Ordinarily, a Will in NSW must satisfy the formal execution requirements in section 6 of the Succession Act 2006 (NSW). These generally include a written document signed by the Will-maker in the presence of two witnesses who also sign it.
However, section 8 of the Act gives the Court power to recognise certain documents as Wills even when they do not comply with the usual formal requirements. These are commonly called informal Wills.
The Court must be satisfied that the document purports to state the deceased person’s testamentary intentions and that the deceased intended the document to form their Will.
This means that a document does not necessarily need to look like a professionally drafted Will to be legally effective. In appropriate circumstances, even an electronic document may be admitted to probate.
That does not mean homemade Wills are advisable. Whether an informal document is legally effective depends on the particular evidence, and disputes about its status can be expensive and distressing for the people involved.
1. Wheatley v Peek: When an iPhone note became a valid Will
In Wheatley v Peek [2025] NSWCA 265, the NSW Court of Appeal considered whether a document saved in the Notes application on a deceased man’s iPhone should be admitted to probate as his Will.
Colin Peek died in August 2022, aged 79. No formally executed Will could be found. Instead, his solicitor discovered a document on his iPhone headed “Last Will of Colin L Peek”.
The document, which had been created shortly after Colin experienced a serious medical emergency, set out how he wanted his assets distributed and named Brad Wheatley as executor.
The estate was substantial. The document provided for the distribution of assets worth millions of dollars, with the bulk of the estate passing to Mr Wheatley. Colin’s brother, Ronald Peek, would receive a smaller share, together with gifts to other people.
The dispute was significant because, if the document was not accepted as a Will, Colin’s estate would be distributed under the rules of intestacy. As Colin had no surviving spouse, children or parents, his brother claimed entitlement to the estate.
Why was the iPhone note accepted as a Will?
At first instance, the Supreme Court concluded that it had not been established that Colin intended the note to operate as his Will. The Court of Appeal reached a different conclusion.
The Court of Appeal considered the document itself, the circumstances in which it was created and evidence of Colin’s statements and conduct.
Several matters supported the conclusion that Colin intended the note to be his Will.
The document appeared final, rather than a draft. It was headed “Last Will of Colin L Peek”, was dated and contained his initials CP at the end of the Note which was found to be a signature. The Court considered these features strong indications that Colin intended it to operate as his Will, rather than simply record instructions for a solicitor.
The document dealt with his estate. Although there was an argument that certain assets had not been specifically identified, the Court considered the provisions as a whole and concluded that Colin had sufficiently dealt with his significant assets. The document’s emphatic statement that “No one else gets a thing” supported the conclusion that he intended it to provide for the distribution of his estate.
The circumstances explained why he prepared it. Colin created the note after a serious medical emergency and a conversation in which Mr Wheatley urged him to put his intentions about his property in writing. The Court considered this immediate context important.
Colin said he had finalised his Will. His cleaner and housekeeper, Ms Jones, gave evidence that Colin told her he had finalised his Will and decided to leave a small percentage to his brother. The Court of Appeal considered this an important indication that Colin regarded the note as complete.
There was also evidence of a later conversation in which Colin indicated that Mr Wheatley would soon receive enough money to purchase a more substantial apartment. The Court considered that conversation consistent with Colin intending Mr Wheatley to receive a significant inheritance.
The Court of Appeal ultimately held that Colin intended the note to operate as his Will. It allowed the appeal and ordered that probate be granted to Mr Wheatley as the executor named in the document.
Must a Will be shown to someone before death?
An important aspect of Wheatley v Peek was that Colin had not told his solicitor or Mr Wheatley about the iPhone note before he died.
The Court recognised that communicating a Will’s existence to others can be important evidence of an intention for it to operate. However, publication of the document is not a legal requirement for an informal Will under section 8.
The absence of communication did not prevent the Court from finding that Colin intended the note to be his Will.
This should not be taken as encouragement to keep a Will secret. Telling a trusted person where a Will is stored, and ensuring that the executor can locate it, can help avoid uncertainty and delay after death.
What does Wheatley v Peek mean for homemade Wills?
The decision confirms that an electronic document can, in appropriate circumstances, be recognised as a valid Will even if it has not been executed in the usual way.
However, the decision turned on the particular evidence of Colin’s intentions. It does not establish that every note on a phone, email, text message or unfinished Will template will be legally effective.
Where there is uncertainty, the people seeking to rely on an informal Will may need to commence Supreme Court proceedings and prove that the deceased intended the document to operate as their Will.
That can involve substantial legal costs, conflicting witness evidence and delays in administering the estate.
2. The Estate of Wade: How unclear wording can cause an inheritance dispute
In The Estate of Wade [2026] NSWSC 1225, the Supreme Court considered a different problem: a Will existed, but its wording created uncertainty about who was entitled to the remaining estate.
Victor Wade made his Will on 19 July 2018, when he was 90 years old. He had been married to his wife, Ivy, for approximately 71 years.
The Will made provision for his four children. It left $5,000 to each of his three sons, provided $200,000 to his daughter, Dianne, for the settlement of her loans, and left the remaining estate to Dianne if she survived him by more than 30 days. If she did not, the remaining estate would pass to his nephew, Edward.
However, at the end of the provision dealing with the alternative gift to his nephew, Edward, the Will included the words:
“FOR THE PURPOSE OF – Providing the most appropriate care for my loving wife Ivy Doris WADE”.
The wording raised an important question: was Dianne entitled to inherit the remaining estate outright, or was the estate intended to be used only to provide care for Ivy?
The estate was valued at approximately $3.8 million, making the answer financially significant.
The home-made Will had been prepared with the assistance of his nephew, Edward using an online template. Evidence before the Court indicated that much of the wording and formatting had been copied from the template rather than deliberately selected to express Victor’s intentions.
How did the Court interpret the Will?
The Court considered three possible interpretations:
- Dianne inherited the remaining estate outright, without a legal obligation to use it for Ivy’s care.
- Dianne inherited the estate subject to an obligation to provide for Ivy, while retaining any balance beneficially.
- The estate could be used exclusively to provide for Ivy, without Dianne receiving any beneficial interest herself.
The third interpretation could have meant that the Will failed to distribute the remaining estate effectively, causing that property to pass under NSW intestacy law.
The Court ultimately found in Dianne’s favour, declaring that on the true construction of the Will dated 19 July 2018 she was entitled to the remaining estate absolutely, with no intestacy of the residue. The Court rejected the interpretation that would have left the estate undisposed of and dismissed the construction argument advanced by the siblings.
In reaching that conclusion, the Court considered the structure and wording of the Will, the placement of the care provision after the alternative gift to his nephew, Edward, the formatting copied from the template and the circumstances surrounding the family’s care arrangements.
Dianne had played a longstanding role in caring for Ivy. That background was relevant when the Court considered the likely purpose of the provision.
The decision illustrates that courts interpret a Will by considering the document as a whole and the evidence that may properly assist in determining its meaning. Bold text, capital letters and punctuation will not necessarily determine the legal effect of a provision.
Why was the rectification claim dismissed?
Dianne also sought to have the Will rectified under section 27 of the Succession Act 2006 (NSW).
Will construction and Will rectification are different legal processes.
- Will construction involves determining what the existing words in a Will mean.
- Will rectification involves asking the Court to correct a Will where it fails to carry out the deceased’s intentions because of a clerical error or a failure to give effect to instructions.
Dianne sought to insert additional words so that the care provision would expressly refer to Edward fulfilling the purpose of providing care for Ivy.
Although the Court resolved the central construction dispute in Dianne’s favour, it dismissed the section 27 rectification claim.
A court may be able to determine the meaning of an existing Will without being satisfied that the statutory grounds for formally correcting it have been established.
The construction and rectification questions were also determined as separate questions, ahead of outstanding family provision proceedings brought by family members. The decision did not resolve every issue in the wider family litigation.
3. What do these decisions tell us about Will disputes in NSW?
Read together, Wheatley v Peek and The Estate of Wade demonstrate two different ways that uncertainty in estate planning can lead to litigation.
In Wheatley v Peek, the central question was whether an electronic document was intended to operate as a Will at all. In The Estate of Wade, the question was how to interpret an existing Will that contained unclear wording.
Both cases show that the deceased person’s intentions matter, but those intentions must be considered through the applicable legal principles and the available evidence.
They also demonstrate the importance of keeping clear records. A properly prepared Will, supported by appropriate instructions and executed in accordance with legal requirements, can help establish what the Will-maker intended and reduce the scope for competing interpretations.
Where a dispute does arise, the outcome will depend on the specific document, the evidence and the relevant law. No single feature — whether a document is saved on a phone, dated, signed or prepared using a template — determines every case.
4. Five ways to reduce the risk of a Will dispute
1. Have your Will professionally prepared
A professionally drafted Will can address issues that online templates may not adequately cover, including complex asset ownership, alternative beneficiaries, trusts and conditions attached to gifts.
It can also help ensure that the document clearly expresses your intentions and satisfies the legal requirements for execution.
2. Make clear who is to inherit your estate
Your Will should clearly identify the intended beneficiaries and explain how your estate is to be distributed.
If you want to leave different amounts to your children, recognise a family member’s care or make provision for a spouse, the operative provisions should be carefully drafted to avoid uncertainty.
3. Be precise about conditions and obligations
There is an important difference between leaving someone an inheritance because you expect them to provide care and legally requiring them to use the inheritance for that purpose.
If you intend to impose a binding obligation, that arrangement should be clearly and appropriately documented.
4. Include an effective residuary clause
A residuary clause deals with what remains of your estate after debts, expenses and specific gifts have been dealt with.
A properly drafted clause should account for the remaining estate and address what happens if a beneficiary dies before the Will-maker. This helps reduce the risk of assets passing under intestacy provisions contrary to the intended estate plan.
5. Sign and store your Will properly
Follow the applicable execution requirements and ensure the original Will can be located after your death.
Do not assume that saving a document on your phone, emailing it to a family member or writing your wishes in a notebook will necessarily create a valid Will.
If your circumstances or intentions change, obtain advice about updating your Will rather than relying on informal notes or leaving multiple documents that may create uncertainty.
How can a wills and estates lawyer help?
Will disputes can involve difficult questions of construction, informal Wills, rectification, probate and intestacy. They can also be expensive and place significant strain on family relationships.
The decisions in Wheatley v Peek and The Estate of Wade show why it is important to obtain appropriate advice before a dispute arises, and why specialist advice may be necessary once a disagreement about an estate has developed.
At Tonkin Drysdale Partners, we advise clients throughout NSW on estate planning, probate, contested estates, Will interpretation and family provision claims.
Whether you are preparing a Will, administering an estate or involved in an inheritance dispute, we can help you understand your legal position and the options available to you.
Contact Tonkin Drysdale Partners Estate Litigation experts today on 02 4341 2355.
