Lessons from the NSW Court of Appeal’s $13.6 Million Decision
A recent decision of the NSW Court of Appeal has confirmed that, in exceptional circumstances, a note saved on an iPhone can operate as a legally valid will. While the Court ultimately upheld the deceased’s wishes, the case highlights the significant risks associated with informal estate planning.
The decision in Wheatley v Peak [2025] NSWCA 265 reinforces a simple and critical message. A properly drafted and executed will remains the safest and most effective way to protect an estate.
Facts of the Case
The proceedings concerned the estate of a Sydney property developer valued at approximately $13.6 million. No formal will could be located following his death. Instead, a document titled Last Will of Colin L. Peek was discovered in the Notes app on his iPhone. The document had been created only days before his death. It sets out how the estate was to be distributed, included substantial gifts to friends, and appointed an executor.
The document was not signed or witnessed in accordance with the requirements of the Succession Act 2006 (NSW). Its validity was therefore immediately opened to challenge. This led to lengthy and costly litigation that ultimately required determination by the Court of Appeal.
The Initial Decision
At first instance, the Supreme Court of New South Wales refused to admit the iPhone note to probate. The Court was not satisfied that the document demonstrated a clear intention to operate as the deceased’s will.
In reaching that conclusion, the Court was concerned by the existence of deleted communications and the absence of evidence that the deceased had communicated the existence or contents of the note to anyone before his death. These factors weighed against a finding of testamentary intention.
The Appeal and the Court’s Reasoning
On appeal, the Court of Appeal took a different view. Payne JA delivered the leading judgement, with Bell CJ and Mitchelmore JA agreeing. The Court focused on the evidence of testamentary intention and the circumstances in which the document was created.
The Court accepted that the digital note was clear and formal in tone, dated and signed, and that it dealt comprehensively with the deceased’s estate. Significant weight was placed on the fact that the deceased had experienced a near-death medical emergency immediately before creating the document. That context supported the conclusion that the document was intended to operate as a final will, without the need for further formalities.
The Court also relied on extrinsic evidence, including conversations suggesting that the deceased believed his estate arrangements were finalised, and comments that were consistent with the terms of the document.
Having regard to section 8 of the Succession Act 2006 (NSW), the Court of Appeal concluded that the statutory requirements for an informal will had been satisfied. The document existed, it expressed testamentary intentions, and it reflected a genuine intention for it to operate as the deceased’s will upon his death.
Taken together, the Court was satisfied that the iPhone note was intended to operate as a will.
Why a Formal Will Still Matters
This case reinforces why a properly drafted will remains essential. A formal will:
- Minimises the risk of disputes between family members and other claimants;
- Avoids reliance on judicial discretion and contested extrinsic evidence;
- Ensures faster and more cost-effective administration of an estate; and
- Provides clarity and certainty at a time when families are already under significant emotional strain.
Key Takeaways
- The decision in Wheatley v Peek confirms that informal documents can, in rare circumstances, be admitted to probate. However, reliance on such documents exposes estates to significant legal, financial, and litigation risk.
- Testamentary intention is highly fact dependent. Where formal execution is absent, courts will closely scrutinise the surrounding circumstances, communications, and available evidence.
- Formal wills continue to provide the greatest certainty. They significantly reduce the risk of disputes and increase the likelihood that a person’s wishes will be carried out as intended.
- Legal advice plays a critical role in effective estate planning. Professional drafting ensures compliance with statutory requirements and helps minimise the risk of disputes after death.
Conclusion
The decision in Wheatley v Peek confirms that testamentary intention can, in rare cases, overcome a lack of formal execution. However, it also demonstrates how exposed an estate becomes when proper estate planning is neglected.
No one should rely on an informal document as their final safeguard. A properly drafted will remains the most effective way to reduce risk, avoid disputes, and ensure that testamentary wishes are carried out as intended.
How W & G Lawyers Can Help
Here at W & G Lawyers, we assist clients prepare clear and legally valid wills that protect their intentions and minimise the risk of disputes. We also provide guidance on contested estates and probate matters to help families navigate uncertainty and ensure estates are administered smoothly.
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Disclaimer
This article contains general information only and does not constitute legal advice.
You should obtain independent legal advice tailored to your specific circumstances before taking any action.