A list of instructions found in the Notes app of an iPhone is not a valid will, the New South Wales Supreme Court has found.
In a 53-page decision handed down on May 30, Justice Richmond found that the digital note made by multi-millionaire Colin Laurence Peek (‘Colin’), just before his death in August 2022, should not be admitted to probate as an informal will under NSW’s Succession Act.
He was also scathing of the conduct of the deceased’s solicitor, Peter Dawson, in the months leading up the 79-year-old’s death and the days immediately following.
The note was discovered three days after Colin’s death by Mr Dawson and another of Colin’s close friends, Brad Anthony Wheatley, during a search of Colin’s home for any original wills.
Ronald William Peek (‘Ronald’), Colin’s 87-year-old brother and only living relative, challenged the probate application made by Mr Wheatley, who under the terms of the note, would receive the bulk of the deceased’s estate (about $10.3 million), while Ronald would receive $990,000, and Mr Dawson about $308,000.
Mr Wheatley, who was named as executor in the note, applied for probate in February 2023. Three months later, in a statement of claim, Ronald contended Colin did not intend the note to operate as his will and absent any other will, he died intestate.
As Colin was not survived by a spouse, parent or child, Ronald, as his only sibling, sought an order for grant of letters of administration on the basis he was entitled to the whole of the estate.
Justice Richmond said the issue for determination was whether Ronald had discharged his onus in propounding the note as Colin’s will.
Mr Wheatley deposed that in the months leading up to his death, Colin asked him to be executor of his will and Colin stated that he did not would not leave his estate to Ronald because he did not want Ronald’s family to receive any of his wealth.
He deposed that the day after an almost fatal diabetic episode, which he attended, Colin created the note, having been warned by Mr Wheatley that his intentions needed to be put in writing.
Mr Wheatley also provided affidavits from Colin’s friends and business associates who deposed that Colin did not want to leave money to Ronald because he did not want any benefit to go to Ronald’s wife and children.
Justice Richmond said it was necessary to address the way the evidence relied on by Mr Wheatley was prepared.
“Mr Dawson acted in the proceedings despite being a primary witness and having a financial interest in the outcome of the proceedings, putting him in a position of conflict between his personal interest and his duty to the court,” he said.
He said under the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), Mr Dawson was required to avoid any compromise in his integrity and professional independence; act in the best interests of his client; and exercise the forensic judgments called for during the case independently.
“Under r 27.2, as it was apparent from at least the commencement of the proceedings that Mr Dawson would be required to give evidence material to the determination of contested issues before the court, and he should not have acted or continued to act for the defendant if doing so would prejudice the administration of justice,” he said.
Justice Richmond said Mr Dawson had “crossed the line” because he had a clear conflict between his personal interests and his overriding duty to the court and the administration of justice.
“He had a personal interest in the outcome of these proceedings (he stands to benefit under the informal will his client propounds), he was a material witness in the proceedings (having been Colin’s lawyer and friend and in contact with him around the time that the informal will was drafted and was in Colin’s house several times after his death with possession and control of critical evidence, including the iPhone after Colin’s death) and he was the solicitor on the record for the defendant (preparing evidence in support of the informal will),” he said.
“While it is not appropriate that the court express a view on whether Mr Dawson engaged in professional misconduct by reason of a breach of r 27.2 of the 2015 Rules, his conflict of interest and duty affects the probative value of the evidence of all the witnesses for the defendant, as Mr Dawson was responsible for preparation of all that evidence.”
He said the fact Mr Dawson had discussed with Mr Wheatley the evidence he would give on matters where there was an overlap with Mr Dawson’s own evidence “was improper and seriously undermines the probative value of the evidence of both of them because the court cannot be certain as to the extent to which their recollection of events is truly independent, or rather has been influenced by the version of the events given by the other”.
Further, he said it was clear from the evidence that text messages and emails had been deleted from Colin’s phone since his death and while it was in the custody of Mr Dawson and Mr Wheatley.
In his submissions, Ronald pointed out that the iPhone was presented to the court devoid of its contents, and this would ground an inference that the material, if presented, would not have helped Mr Wheatley.
His other arguments included that Colin did not inform his purported executor (Mr Wheatley) or solicitor (Mr Dawson) that he had made a will or where to find it.
“The fact that he did not do so gives rise to a compelling inference that Colin did not consider the document on his mobile phone to be in a form ready to send to his solicitor, perhaps because it remained a working document … and did not sufficiently reflect his settled testamentary intentions,” he submitted.
He also argued that Colin was “an astute and careful businessman, who lived by the mantra, at least in his legal affairs, of ‘no f** ups’”, and so it was “incongruous that a man who was careful to insist that his solicitor take care not to make mistakes would seek to prepare a final and immediately binding document without the assistance of a solicitor…”
Mr Wheatley’s arguments included that the note was entitled “Last Will of Colin L Peek” which suggested finality and a degree of formality; and that it contained “appointments and directions consistent with a final testamentary document”.
Justice Richmond said the note had elements pointing both for and against the existence of the requisite intention and so it was important to consider the wider context in which it was created.
He said it was particularly significant that Colin did not tell Mr Dawson or Mr Wheatley where the note was, because there was a risk they would never find it.
“The failure to inform Mr Dawson or Mr Wheatley of the existence of the note is consistent with it being a draft of his testamentary intentions which he proposed to send to Mr Dawson but for one reason or another (possibly because he had not finalised his views or was too ill to summon the energy to do so) he failed to do before his unexpected death,” he said.
“Had Colin really meant that he had made his will, it would be expected that he would have told Mr Dawson and Mr Wheatley …given his previous discussions with both about the will…”
Justice Richmond said there was evidence that on August 5, Colin sent a text message to Mr Wheatley and phoned him several times, but Mr Wheatley failed to provide evidence about the contents of those communications.
“While I accept (and it is not in dispute) that the note records Colin’s testamentary intentions, I am not satisfied on the balance of probabilities that Colin intended the note without more on his part to have present operation as his will, in particular because (a) the note has elements which point against that conclusion, (b) there is evidence in the wider context in which the note was created that casts doubt on whether Colin had that intention and (c) the failure to call two important pieces of evidence regarding communications (or attempted communications) by Colin with Mr Wheatley and Mr Dawson in the period from 5 August to 16 August,” he said.
Justice Richmond made five orders, including that Letters of Administration be granted to Ronald, and that Mr Wheatley pay costs.
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