As technology and informal communication tools increasingly shape daily life, courts more frequently consider whether a handwritten note, text message, or phone app entry constitutes a valid will. In one recent case, Peek v Wheatley [2025] NSWSC 554, the Supreme Court clarified when a document that lacks formal will requirements still qualifies as a person’s last will and testament.
This article outlines the legal framework for informal wills in New South Wales. It examines how the Supreme Court assessed whether a digital “note” on a deceased person’s iPhone qualified for admission to probate as a valid will.
Can a Note Be a Valid Will Under the Succession Act 2006 (NSW)?
Under section 6 of the Succession Act 2006 (NSW), a valid will must be:
- In writing,
- Signed by the testator (the will-maker), and
- Witnessed by at least two people who are present at the same time.
However, section 8 of the Act allows the Court to admit a document to probate – even if it does not comply with section 6 – if it finds that:
- The document exists,
- It purports to state the testamentary intentions of the deceased, and
- The deceased intended the document to form their will.
These provisions allow for so-called “informal wills” to be recognised in appropriate circumstances.
Can a Note Be a Valid Will? The Facts in Peek v Wheatley
Colin Laurence Peek, aged 79, died on 16 August 2022 with an estate valued at approximately $13.6 million. No formal will could be located. However, during a search of his home, a long-time solicitor and a close friend discovered a note titled “Last Will of Colin L. Peek” in the Notes application of Colin’s iPhone.
The document – typed and saved on 4 August 2022 – appointed Brad Wheatley, a friend of over 20 years, as executor and main beneficiary. It gave specific gifts, including a car to Colin’s brother Ronald (the plaintiff) and various cash or percentage allocations to friends, including a cleaner and the solicitor himself.
Colin died just 12 days after creating the Note. No changes were made to it after it was saved, and no formal instructions were ever sent to a solicitor.
The Core Legal Issue
The key issue before the Court was whether the Note satisfied the third requirement under section 8: Did Colin intend the Note, without more, to operate as his will?
This issue of intention is at the heart of nearly all informal will cases. As the Court in Rodny v Weisbord (2020) 102 NSWLR 403 observed, it is not enough for a document to express testamentary wishes. The testator must intend the document to have immediate legal effect as their final will.
Evidence Considered by the Court
To determine Colin’s intention, the Court in Peek v Wheatley considered several key pieces of evidence.
1. Content and Format of the Note
The Note used final language such as “This is what I want done with my property” and “that’s it.” It named an executor, specified gifts, and included a clause excluding anyone who contested it. This strongly indicated testamentary intention.
2. Timing and Circumstances
Colin created the Note shortly after a serious medical incident. Mr Wheatley, a close friend and intended beneficiary, urged him that night to record his wishes. Colin saved the Note early on 4 August and never reopened it.
3. Previous Reluctance to Make a Will
For years, Colin’s solicitor, Mr Dawson, encouraged him to make a will. Colin consistently declined. Just before creating the Note, Colin met Mr Dawson but refused to dictate formal instructions, saying, “I’m not going to die yet.” He said he would write his wishes down but never sent them.
4. Subsequent Statements
On 11 August 2022, Colin told his cleaner, “I have finalised my will and decided to leave a small percentage to my brother Ron.” This suggested he considered the Note final.
5. Contrary Evidence
The plaintiff, Ronald, argued the Note was only a draft. He said Colin often mentioned making a will but never followed through. He claimed Colin’s Note lacked the formality and finality of a valid will.
6. Conduct of Executor and Solicitor
Concerns arose over Mr Dawson and Mr Wheatley accessing Colin’s phone after his death and deleting data. While this raised questions, the Court did not find it decisive in determining Colin’s intention.
The Decision
Justice Richmond concluded that the Note satisfied all three requirements under section 8, and particularly that Colin intended the Note to operate as his final will.
Key findings included:
- The Note was clearly a “document” for the purposes of the Act.
- It set out testamentary intentions in a clear and final manner.
- Most importantly, Colin created the Note after a serious health scare, never modified it, and made statements to friends and his cleaner that aligned with its contents. He described it as his completed will.
The Court accepted that Colin intended the Note to have present testamentary effect, and not just as a draft or a list of ideas.
Accordingly, the Court made a grant of probate in solemn form over the iPhone Note, recognising it as Colin’s valid will.
Can a Note Be a Valid Will? Key Takeaways from the Case
This decision confirms that informal wills, including notes saved on digital devices, can be legally valid – if the right intention is proven. The case reinforces several key points:
1. Substance Over Form
While formal wills are still strongly preferred, courts can and will uphold informal documents if they reflect a final testamentary intention.
2. Intention is Everything
The key question is not whether the will is neat or witnessed, but whether the person intended it to operate as their will. Phrases such as “this is what I want done” supported that intention. The absence of further editing also influenced the outcome in this case.
3. Contemporaneous Evidence Matters
Colin made several post-note comments confirming his testamentary wishes. He also made long-term statements about disinheriting his brother’s family. These consistent statements supported the credibility of the Note as his true final will.
4. Beware of Informal Practices
The Court upheld the Note in this case but criticised the solicitor’s role as both drafter and beneficiary. It identified a risk to the administration of justice when lawyers take on conflicting roles.
Conclusion
Peek v Wheatley is a landmark reminder that courts are willing to adapt to modern realities—where people express final wishes in apps and notes rather than ink and parchment. But informal wills remain legally risky. Even with clear testamentary language, litigating intention is fact-intensive, costly, and unpredictable.
The best course is to make a formal will with legal advice to ensure your wishes are carried out. A Note on your phone might suffice in law—but it might not spare your loved ones from going to court to prove it.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
