iPhone note titled “Last Will of Colin L Peek.”
When Will the Court Dispense with Formalities?
In New South Wales, s6 of the Succession Act 2006 (NSW) provides that a valid Will must be in writing, signed by the testator (or someone at their direction), and witnessed by two or more people at the same time to protect against fraud, uncertainty, and undue influence. However, Section 8 of the Succession Act 2006 (NSW) empowers the Supreme Court to dispense with the standard formalities required for a valid Will. The Supreme Court can deem that a document can still be valid, even if it does not fully meet the legal criteria for a Will, if the Court is convinced it reflects the deceased’s final wishes.
Principles developed in leading cases, such as Hatsatouris v Hatsatouris [2001] NSWCA 408, Rodny v Weisbord [2020] NSWCA 22, and Kemp v Findlay[2025] NSWCA 46, provide the Supreme Court discretion to grant an executor probate of an informal Will if three key conditions are met:
1. A Document: s 21 of the Interpretation Act 1987 defines “document” as:” ‘…any record of information, and includes:
(a)anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writing can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph. Where a written will purported to revoke an earlier will and to dispose of the beneficial interests in an estate by reference to an existing audio tape,
Estate DM Edwards: Treacey v Edwards [2000] NSWSC 846′
“Held: (1)(a) the audio tape was a document within the meaning of s 21 of the Interpretation Act, being something from which sound could be reproduced with the aid of a cassette player; (745 [27])(b) because s 18A of the Wills, Probate and Administration Act uses the term “document” as distinct from “written document”, it must be construed so as to create an exception to s 7 for anything which is a document and satisfies the requirements of s 18A; (745 [28])”
2. Reflecting the person’s testamentary intentions (what they wanted to happen to their property after death).
The deceased must have intended the document to serve as their Will, even if it wasn’t properly signed or witnessed and expressed how they wanted to distribute their property.
Key Elements Must Be Proven
When admitting an informal document under s 8, the Court must be satisfied with two things:
1. The document sets out the deceased’s testamentary intentions and expresses the distribution of the deceased’s estate.
2. The deceased’s intention for the document to operate as their Will.
The Court is satisfied that the deceased intended the document to take effect as their final Will without needing any further action. This principle has been affirmed in decisions such as Hatsatouris v Hatsatouris [2001] NSWCA 408 and Bell v Crewes [2011] NSWSC 1159.
Drafts and Instructions Are Not Enough.
A document that merely records a person’s instructions for a future Will or is unseen, unsigned, or not adopted by the deceased will not generally satisfy Section 8. Courts are cautious not to treat rough notes, solicitor instructions, or planning documents as valid Wills unless there is clear evidence that the deceased intended that specific document to have legal effect. For example, suppose someone instructed their solicitor to prepare a Will but died before reviewing or signing it. The document is unlikely to be admitted unless there is other strong evidence of intention.
Mistakes or Incomplete Execution.
Courts have distinguished between cases where the deceased mistakenly believed they had executed a will, for example, by signing the wrong version, and instances where execution never occurred because it was still in draft or pending further review. Where the testator believed they had completed the process, but something went wrong (such as signing the wrong spouse’s Will), courts may still find the necessary intention and admit the unsigned document to probate.
Conditional Wills and Future Events
A person intends for a document to become their Will following a particular event, and that event is either questionable or doesn’t happen. In that case, the document won’t take effect as a Will. The law requires that the document be effective now, not merely sometime in the future.
Section 8 provides an important safety net for honouring genuine testamentary intentions when not meeting the formalities provided in Section 6, but the Court applies it with utmost caution. Not every draft, note, or email counts as a Will. The key is whether the deceased intended the document to be legally operative as their Will without requiring any further action. When involved in a dispute over an informal Will or trying to prove one, it’s essential to consider what the document says and what the deceased meant it to do.
3.Intention to Operate as a Will
Section 8(2)(a) of the Succession Act 2006 (NSW) requires under s 8 that the deceased intended the document to operate as their Will. Courts have consistently held that inferring this intention from the document’s content or surrounding circumstances, including statements or actions of the deceased which demonstrate that they meant the document to serve as a will without more: see Application of Kencalo; Re Buharoff (unreported, NSWSC, 23 October 1991); Hatsatouris v Hatsatouris [2001] NSWCA 408;
“There can be no quarrel with the proposition that these sections allow a document to be admitted to probate, notwithstanding that they do not comply with the formal requirements for the execution of wills. But with respect, the provisions do not state a parliamentary intention that a document is to be admitted to probate merely because it embodies the deceased’s testamentary intention. The legislation expressly requires that the deceased intend that the document form or constitute the person’s Will.
A requirement that the deceased intend without more that the document constitute their Will, or, that is to say, that the deceased intend the document have a present operation as his or her will, is not to put a gloss on the statute. Instead, it gives effect to the requirement that the deceased intend that the document form or constitute his or her Will.”
Bell v Crewes [2011] NSWSC 1159, [43]– [44].
Intention is formed when creating the document or before the deceased’s death.
Electronic Documents
Courts have considered electronic documents in various contexts. In Re Trethewey [2002] VSC 83, the Court admitted an electronic document as a Will because the deceased had told a close friend it was his Will, and the document’s content confirmed this. Typing his name at the end was considered equivalent to a signature.
In contrast, in Mahlo v Hehir [2011] QSC 243, an electronic document was not accepted as a Will. The Court found the deceased intended the printed (not found) version of the document to be her Will, not the digital copy. She knew formalities were required and had recent experience making a will. Thus, the Plaintiff did not establish the deceased’s intention to give effect to the electronic version.
Bell v Crewes [2011] NSWSC 1159 also considered the absence of a signature relevant. There, White J concluded there was no intention for the unsigned document to be operative until the deceased properly executed it.
Suicide Notes as Wills
In Costa v Public Trustee [2008] NSWCA 223, the Court of Appeal held that a suicide note was a Will because it was written on a solemn occasion, addressed to close family members, and revoked a prior Will. The testator’s clear testamentary intent outweighed the emotional tone and lack of formality.
NSW Trustee and Guardian v Pittman (Estate of Koltai) [2010] NSWSC 501 held an undated suicide note not to be a Will due to its vague and precatory language, failure to deal with the entire estate, and lack of dispositive form.
Similarly, in Public Trustee v Alexander (Estate of Alexander) [2008] NSWSC 1272, the Court recognised a suicide note as a Will, despite being unsigned, because of its solemnity, clear gifts, and testamentary purpose.
These cases show that even informal, emotionally charged documents like suicide notes can satisfy s 8 if they show a fixed intention to dispose of property after death.
Application to Will.doc
In Yazbek v Yazbek and Anor [2012] NSWSC 594, the deceased’s document “Will.doc” raises questions of testamentary intent. The Document was not signed, and there is no evidence of a signed hard copy. While courts sometimes infer a lack of intention from such omissions, that inference is not automatic. The document’s content and context must be assessed, including any expression of final wishes, language of disposition, or efforts to convey the document to others. As in Alexander, the fact that “Will.doc” also expressed personal messages does not preclude it from being a will if it also records a testamentary disposition. The deceased intended the document to serve as their Will, even if it wasn’t properly signed or witnessed.
This third condition is most often examined closely by courts. Just because a document appears to be a Will doesn’t mean the deceased intended it to be legally binding. Courts look at the deceased’s conduct, words, and surrounding circumstances to decide whether they intended the document to take effect without any further action.
Kemp v Findlay and Rodny v Weisbord emphasise that a document must have “present operation”—it must have been final and intended to take legal effect as a Will. Drafts, instructions, or wish lists that were never formally adopted don’t meet this standard.
The Court can consider a wide range of evidence, including how the deceased created the document, what the deceased said about it, and their usual practices when making Wills. The Court applies the Briginshaw principle, taking extra care when making findings in probate matters, as the person who is the subject of the document is no longer alive to explain it. Importantly, while informal wills can be valid, proving that a document is to serve as someone’s final Will requires careful evidence and a close reading of the deceased’s intentions.
Supporting Evidence: The Court may consider any relevant statements or circumstances that show the deceased’s intention.
Importantly, the burden of proof lies with the propounder of the informal Will (usually a proposed executor or beneficiary). In its role as the arbiter of the deceased’s intentions, the Court assesses each case on its facts with a priority to give effect to the deceased’s genuine intentions while applying legal standards.
Examples of informal Wills the Court accepted include:
In Estate DM Edwards: Treacey v Edwards [2000] NSWSC 846, the Court considered an audio tape signed by the testator as a ‘document’, allowing a grant of probate following the dispensing provisions.
Furthermore, in Yazbec v Yazbec [2012] NSWSC 594, a document titled “Will.doc,” located on a deceased individual’s hard drive, was accepted into probate.
Similarly, in Costa and Another v The Public Trustee of NSW [2008] NSWCA 223, the NSW Court of Appeal ruled that a handwritten poem, recognised as a suicide note and discovered in the deceased’s bedroom, was sufficiently valid as a testamentary document since the deceased addressed it to the deceased’s parents.
In the Estate of Pantelej Slavinsky, deceased (1988) 53 SASR 221, the testator inscribed a Will in Ukrainian on a plasterboard wall, stating “To all my nieces USSR” and included the name and address of one niece, along with another niece’s details. The Plaintiff found an envelope bearing one niece’s name tucked into a crack in the wall. The Court successfully admitted the words from the wall along with the envelope to probate.
Digital Wills in Australia: Are They Legally Valid?
In an era of digital convenience, Australians increasingly rely on smartphones to record vital information, including, as it turns out, their final wishes. But can a note saved on an iPhone truly be a valid will?
More than a decade ago, in Re: Yu [2013] QSC 322, the Supreme Court of Queensland found that a note typed on an iPhone was a document that reflected the testamentary intentions of its maker but not the formal requirements of s 10 of the Succession Act 1981 (Qld) granting probate to the individual designated as the executor. In this specific case, various factors influenced Lyons J, including the document’s evident testamentary intent, which commenced with the phrase:
“This is the Last Will and Testament…”.
A Will’s required components also contributed to Lyon J’s ruling, as it included the deceased’s name and address and named an executor. Lyon J observed that the deceased had typed his name at the bottom of the document, where his signature would typically appear on paper.
The NSW Supreme Court recently considered this question in Peek v Wheatley [2025] NSWSC 554:
“Last Will of Colin L Peek.”
The Deceased and His Relationships
The deceased, born in 1943, was a successful property developer who worked across various industries, including banking and poultry farming. In this case, he maintained a close lifelong bond with his brother, the Plaintiff and Cross-defendant. He had deep friendships with his long-time solicitor, Peter Dawson, and Brad Wheatley, a real estate agent who later became the Defendant and Cross-claimant.
Although repeatedly urged to finalise a formal will, the deceased delayed doing so. In July 2022, during a decline in health, he told his solicitor that he wished to leave most of his estate to the Defendant and a car to his brother. Still, he took no formal steps to execute a will.
The iPhone Note: Testamentary Intent or Draft?
On 4 August 2022, after experiencing a severe health episode, the deceased created a note titled “Last Will of Colin L Peek” on his iPhone. The document left the majority of his multimillion-dollar estate to Defendant, with gifts to others, including Plaintiff and the Solicitor.
The Note was unsigned and stored privately. When the deceased died on 16 August 2022, his phone contained no other testamentary documents. The Plaintiff sought letters of administration, arguing the Note was not a valid will. The Defendant cross-claimed, asserting the deceased’s intention that the Note was the deceased’s final testamentary Act.
NSW Succession Law: The Legal Framework
The Court’s task was to determine whether this informal iPhone Note met that threshold.
The Plaintiff’s Argument
The Plaintiff argued that the deceased did not intend the Note to take immediate legal effect, highlighting:
Lack of disclosure: The deceased never informed his solicitor or executor about the Note.
Credibility concerns: The Solicitor helped draft the Defendant’s affidavits and stood to benefit from the estate.
Missing evidence: Forensic evidence showed deleted communications from the iPhone while in the Defendant’s possession.
No signature or formalities: The Note lacked a signature, witnesses, and instructions on where to find it.
The Plaintiff contended the Note was more likely a draft than a final, binding testamentary document.
The Defendant’s Case:
The Defendant submitted that the deceased intended the Note to be his final Will:
- It had a title, date, and initials and disposed of the entire estate.
- It included the language of finality, e.g.,“This is what I want to be done with my property.”
- A witness recalled the deceased stating he had “finalised” his will days after creating the Note.
- No evidence challenged the deceased’s capacity or authorship.
- The Defendant emphasised that the deceased had a history of independence and may have chosen not to involve his solicitor for personal reasons.
No Present Testamentary Intention
The Supreme Court weighed both content and context. It found that while the Note expressed testamentary intentions, the deceased did not intend it to operate as a Will. Critical considerations included:
- The deceased’s ongoing reliance on legal advice for significant decisions.
- There is a lack of communication with key people (solicitor and executor) about the document’s existence.
- The deceased’s history of procrastinating over formalising a Will.
- The ambiguous statement to his housekeeper that he had “finalised” his Will—possibly referring to his wishes, not execution.
- Moreover, the Court was concerned about missing evidence and gaps in the chain of custody for the iPhone.
The Court ordered:
- The Note did not constitute a valid Will under s 8 of the Succession Act 2006.
- A grant of letters of administration to the Plaintiff.
- Dismissal of the Defendant’s crossclaim.
- The Defendant pay the Plaintiff’s costs.
Key Takeaways
An iPhone note can express testamentary intention—but that’s not enough.
Formality matters: Clear communication, legal advice, and proper execution help avoid disputes.
Context is critical: Courts assess not just the document but the surrounding circumstances, conduct, and credibility of witnesses.
Evidence control: Missing or deleting evidence, especially in the hands of interested parties, can lead to adverse findings.
Conclusion: In NSW, a Digital Will is considered ‘formal’ if it meets the requirements provided by section 6 of the Succession Act 2006 (NSW).
Peek v Wheatley [2025] NSWSC 554 is a cautionary tale for anyone relying on digital tools to record their end-of-life wishes. In the age of smartphones, a typed note might feel sufficient, but it isn’t enough under NSW succession law. Whether you’re drafting a Will or advising someone else, this case reinforces that testamentary clarity, proper legal guidance, and formal execution remain essential.
One Reply to “”