Case

Which case won?

casea
The case for the brother
  • Just three weeks before my brother died, he told his solicitor that he would "write his will instructions down and send them through in the next week or so". The Note constituted the written instructions, which he did not get an opportunity to send to his solicitor.
  • My brother never told his solicitor or his executor about this supposed will, despite speaking to both of them multiple times after creating the Note. If it really was to be his final will, why would he have kept it secret?
  • The Note refers to the solicitor getting 5% of funds in an account "for handling of [name] will". This suggests my brother still expected the solicitor to draft a proper will and be compensated for it.
  • The Note doesn't actually cover all of my brother’s assets.
  • It’s true my brother told his cleaner that he had "finalised" his will, but he clearly meant that he had finalised his thoughts about what should go into it, not that he had actually made a legal will.
  • The evidence also shows no record of any SMS messages or emails on my brother’s phone at the time it was examined by the forensic examiner. This raises the obvious question, did my brother’s friend or solicitor delete them?
  • My brother clearly intended the Note to be a preparatory step towards making his will, not an operative will, so my brother died intestate and the court must rule in my favour.
caseb
The case for the best friend
  • The Note is clearly titled "Last Will of [name]" showing that my friend intended it to be his actual will.
  • The Note is dated and signed with his initials at the bottom, just like any other will would be signed.
  • The Note appears to deal with my friend’s entire estate, stating: "this is what I want done with my property so it will be divided this way that's it" and "no one else gets a thing."
  • The Note appoints me as executor and gives clear instructions about how to distribute my friend’s wealth. In other words, it has everything a will needs to have.
  • The Note was created right after my friend’s near-death experience, so it makes perfect sense that he would want to get his affairs in order immediately.
  • He even told his cleaner a week after creating the Note that he had "finalised his will," proving that he considered it complete.
  • My friend also had no intention of leaving his estate to his brother. As he told me, although he loved his brother, “I do not want his son… or his wife… and her first family getting any part of my wealth when I’m gone. I have had nothing to do with any of them and they’re not my family as far as I’m concerned.”
  • Although the evidence shows that messages were deleted from his phone after his death, I don’t know anything about this, as I testified, as the only messages I deleted were spam.
  • Since my friend clearly intended the Note to operate as his will, the court must rule in my favour.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a48%
case b52%

Expert commentary on the court's decision

"The safest course of action to ensure that your estate will be distributed in accordance with your final wishes is to create a formal will that complies with the required legal formalities.”
Supreme Court finds iPhone Note not a valid will

In Peek v Wheatley [2025] NSWSC 554, the NSW Supreme Court found in favour of the brother, Ronald Peek, and against the best friend, Brad Wheatley.

The court concluded that while the Note clearly recorded testamentary intentions, there was insufficient evidence to prove it had been intended to operate immediately as a final will.

Since that meant the deceased, Colin Peek, died intestate (without a will), his brother inherited the whole of the estate, while his best friend inherited nothing.

Informal document can be recognised as valid will

Under section 8 of the NSW Succession Act 2006, a court can recognise an informal document as a valid will even if it doesn’t meet the usual legal requirements for will-making.

To do so, the court must be satisfied of three things: the document exists, it states the person’s intentions about their property after death, and the person intended it to have immediate legal effect as their will.

This case was concerned with the third requirement.

According to the court, the case turned on “whether the Note was intended by Colin without more on his part to have present operation as his will, or whether it was merely a preparatory step towards the making of a will (such as a draft or a note of instruction to be provided to Colin’s solicitor).”

Note contains elements both for and against being final will

In determining whether Colin intended the Note to have immediate legal effect as his will, the court started with the content of the Note itself.

The court found that the Note had elements pointing both for and against the existence of the intention that the document should operate as a will.

The heading, “Last will of Colin L Peek” together with the date that he made the last change to it suggested formality and finality.

On the other hand, if the Note was intended to operate as Colin’s will, the reference to his solicitor getting 5% of particular funds for handling the will would make no sense, since there would be nothing to handle. This suggested that Colin expected his solicitor to draft the actual will.

Wider context favours conclusion Note not intended to operate as will

Because the Note had elements pointing both for and against Colin intending it to operate as his will, the court said it was important to have regard to the wider context in which the Note was created.

The court concluded that the wider context cast doubt on whether Colin had intended the Note to operate as his will.

First, although Colin had prepared the Note shortly after his near-death experience, he had told his solicitor not long before then that he would write down his thoughts on his will and send them to the solicitor.

The court concluded that the inference from that conversation was that the Note constituted these instructions.

The court said that if Colin had changed his mind and decided that the Note would operate as his will, he would have told his lawyer. He didn’t do so.

He also didn’t tell Mr Wheatley.

The court found these omissions particularly significant, since there was a risk that the Note would never be found.

Secondly, the court found Colin’s statement to his cleaner that he had “finalised his will” to be ambiguous and consistent with the Note being final instructions for a will to be prepared by his lawyer.

The court noted that had Colin really meant that he had made his will, he would have told his lawyer and Mr Wheatley, not just his cleaner.

Thirdly, no explanation was offered by Mr Wheatley to the court as to why Colin didn’t tell him or the solicitor about the Note. This was notwithstanding that Colin had contacted both of them after the Note was written.

Colin had sent Mr Wheatley a text message on the day after creating the Note, but Mr Wheatley had provided no evidence to the court about its contents. The court applied the legal rule that when a party fails to provide evidence within their control, an adverse inference can be drawn that the missing evidence would not have supported their case.

Finally, the court was troubled by gaps in the evidence due to the deletion of texts and emails from Colin’s phone while it was in the possession of Mr Wheatley and the solicitor.

Ensure your will complies with required legal formalities

The onus of proof is on the person seeking to rely on an informal will.

Although Mr Wheatley didn’t succeed in proving his case, there are other cases where the person seeking to rely on an informal will did succeed. (Please see Can an unsent text message be a valid will? Which case won?)

Importantly, whether the court finds that a person has met their burden of proof will depend on the facts and evidence of each individual case.

Therefore, when it comes to your will, the safest course of action to ensure that your estate will be distributed in accordance with your final wishes is to create a formal will that complies with the required legal formalities.

Although it is possible to create a formal will by yourself, the higher the stakes, or the greater the value of the assets, the more important it becomes to get professional advice to ensure that your wishes are clearly and legally expressed.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

Latest from Stacks

chat button

Fill out this form and one of our local law professionals will be in contact

By submitting this form you agree to the terms of our Privacy policy