Wheatley v Peek [2025] NSWCA 265 (10 December 2025)
Earlier this year the NSW Supreme Court held that a Will made on an iPhone Notes app was not valid. The ruling raised issues about informal wills in NSW and whether a phone document can operate as a final Will. The NSW Court of Appeal has now overturned that decision. The appeal sets out key factors for deciding if an informal will should be accepted.
Background
Colin Peek passed away in August 2022. No formal will was found. But a few days after his death, Colin’s long-time solicitor found a document on Colin’s iPhone: a note in the Notes app, headed “Last Will of Colin L. Peek”, signed “CP”, dated 4 August 2022, and seeking to dispose of his Estate worth over $10 million.
Importantly, the Note specifically:
- distributed the bulk of the estate to Mr Wheatley (the appellant),
- left a smaller portion to Colin’s brother (who would have otherwise inherited the whole of the Estate),
- made several small gifts to friends,
- appointed Mr Wheatley as executor, and
- ended with the line: “No one else gets a thing.”
At first instance, the Court rejected it as a will, treating it as a draft or set of instructions rather than Colin’s final testamentary act.
Mr Wheatley appealed.
Legal Considerations for Informal Wills
Under s 8 of the Succession Act, the Court can validate a document as a will if the Court is satisfied that:
- the document is actually a document capable of being a Will,
- purports to state the testamentary intentions of the deceased, and
- the deceased intended it to operate as their will.
The parties did not dispute that the ‘Note’ was a document capable of being a Will and set out Mr Peek’s testamentary intentions. The question was whether Mr Peek intended it to operate as a Will.
The Court of Appeal’s Decision
The Court of Appeal—Payne JA delivering the lead judgment—allowed the appeal and granted probate to Mr Wheatley of the Note. In finding that the deceased intended to the Note to operate as a Will, three features heavily influenced the Court’s decision making.
The Note looked like a real will
The Court emphasised the structure of the Will:
- It was titled “Last Will of Colin L. Peek” and dated.
- At the end, it had been initialled ‘CP’ which the Court accepted as a signature.
- It appointed an Executor and sought to dela with all assets, ending with the phrase: “No one else gets a thing.”
The content was complete and deliberate
The Note disposed of the whole estate and left nothing unaccounted for. At first instance, the Court found that the Will did not dispose of shares and units in companies and trusts held by the deceased. However, the Note did refer to a valuation of approximately $6 million. On appeal, the court found that the deceased’s residential property, owned by those corporate entities was valued at approximately that much and therefore the reference in the Note was in fact a disposal of the interests in those entities.
Strong contextual and extrinsic evidence
The Court relied on several pieces of evidence outside the document itself:
- Colin had recently experienced a serious medical episode—one that could have prompted a rapid, urgent expression of testamentary intention.
- Days later, Colin told his long-time housekeeper he had “finalised” his will and that only a small portion was going to his brother.
- A conversation with Mr Wheatley suggested Colin expected Mr Wheatley to receive significant funds “soon,” consistent with the Note being a Will.
Are Digital Wills Now Allowed?
In NSW, digital wills are still not formally recognised. It is important to distinguish the matter (where an informal document was found to candidate a Will) from other cases where a Will is sought to be made electronically under a different test.
It also does open the door for documents made electronically, where they are sufficiently certain, to become Wills. However, even though Colin’s Note was ultimately accepted:
- the estate spent significant time and money in contested litigation,
- and the validity of the will hung on a finely balanced evidentiary analysis.
For high-value estates, relying on an informal document is a recipe for conflict.
The Court’s preference remains for formal, paper signed Wills which meet all the necessary requirements.
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.
By Jackson McKinley, Senior Associate
