In a recent Supreme Court case and subsequent appeal, Peek v Wheatley [2025] NSWSC 554 and Wheatley v Peek [2025] NSWCA 265, the Court in the first instance refused to grant probate of an informal will found on the deceased’s iPhone. The decision was then overturned on appeal, with the Court of Appeal was approving the informal will as the deceased’s final will and granted probate to the named executor
The decision also highlighted important professional boundaries for solicitors acting in estate matters.
When is an informal will not enough?
An informal will can be admitted to probate under section 8 of the Succession Act 2006 (NSW) if the Court is satisfied that the deceased intended the document to operate as their final will. However, even where a document clearly sets out someone’s wishes, that alone is not always enough.
Initial decision
In this case, the deceased, Colin Peek, created a note titled “Last Will of Colin L. Peek” on his phone shortly before his death. The document purported to deal with his $10.3 million estate, naming a friend as executor and beneficiary, and his brother (the plaintiff) as a minor beneficiary, along with other friends. Colin left no children or spouse. No formal will could be found.
The Court in the first instance found the note did not meet the threshold for a valid informal will because:
- Evidence was lacking that the deceased intended the note to operate as his final will, without anything further.
- Colin had previously told his solicitor he would “send instructions” to prepare a will—suggesting he saw the note as a draft or aide-mémoire; Colin was ‘an astute and careful businessman’, and knew the will needed to be formalised
- He failed to tell either his nominated executor or solicitor about the note’s existence or location before he died.
- Some assets weren’t accounted for in the note, and the language suggested informality.
- Most concerningly, the iPhone was tampered with after death, with text messages and emails deleted while in the possession of the solicitor and the nominated executor.
The Court concluded that the deceased had not done enough to show he intended the note to be his final will. The application for probate was dismissed, and as a result, the estate was ordered to be distributed under intestacy rules, contrary to the deceased’s wishes. . This meant that Colin’s brother would receive the entire estate, who stood to receive only a car and 15 percent of Colin’s bank accounts under the iPhone note.
Appeal
An appeal was lodged against that decision, and the Court of Appeal later upheld the appeal and ordered the iPhone note did constitute an informal Will and granted Probate of that Will.
The critical question for the Court of Appeal was therefore whether the deceased intended the Note to form his will within the meaning of s 8(2)(a) of the Succession Act, or whether, as the primary judge found, the note was only a draft will or set of instructions that was intended to be, but was not, sent to his solicitor.
The Court of Appeal found that the evidence of the note itself is compelling and indicated that the Colin had the requisite testamentary intention that the note should operate as his will, without more. In particular, the note was written with finality and formality and was not ambiguous, it was dated and signed, and sufficiently dealt with the entirety of the estate.
Supporting this conclusion was extrinsic evidence of a near-death experience and subsequent comments that Colin had made to others which indicated the intended finality of the will.
The decision of the Court of Appeal took over 3 years from the date of death of the deceased and one can only hazard a guess how many hundreds of thousands of dollars were spent on legal fees.
When should a solicitor not act?
The case also raised serious concerns about solicitor’s conduct. The solicitor involved had:
- A financial interest in the estate (he was to receive 5% under the iPhone note).
- Assisted in preparing evidence and affidavits while also acting as a key witness.
- Taken possession of the deceased’s iPhone—critical evidence in the case—and failed to preserve its content.
- Admitted to discussing recollections of key events with another witness (the executor), potentially influencing their evidence.
The Court found this breached the Australian Solicitors’ Conduct Rules. Where a solicitor has a personal interest in the outcome, or is a material witness on contested issues, they must not act. Doing so risks compromising their duty to the Court and undermining the integrity of the evidence.
The case also highlighted solicitor conduct: anyone with a personal interest in receiving a gift under the Will or acting as a key witness must avoid conflicts of interest and breaches of professional rules.
Key takeaways
Drafting a Will informally can lead to unintended outcomes and can involve the estate being involved in costly and lengthy Court litigation. The safest and most cost effective approach is a formal Will to be properly prepared by a solicitor who does not receive a gift as a beneficiary under the Will.
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DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.