Wheatley v Peek [2025] NSWCA 265

In Wheatley v Peek¹, the New South Wales Court of Appeal has overturned an earlier decision in the Supreme Court to find that a digital note on the deceased’s iPhone constituted a valid informal will.

The appeal in the decision hinged on whether the deceased – Colin Peek – intended that a document saved in the Notes application on his iPhone (the Note) was to present as an informal will.

The Note, titled ‘Last Will of Colin L Peek’, was drafted by Colin following a near-death medical episode. It provided that most of his estate be passed to his close friend, Mr Wheatley, with a smaller gift made to his brother, Ronald Peek².

At first instance, Justice Richmond accepted Ronald Peek’s contention that the Note was a mere draft of instructions intended for Colin’s solicitor, Mr Dawson, and therefore inoperative as a will, pointing to gaps in asset coverage and concerns around the solicitor’s conduct.³

On appeal, however, the Court departed from the primary judge’s reasoning, adopting a different perspective towards the content and context of the Note. ⁴

Given the Note was accepted as a ‘document’ stating the testamentary intentions of the deceased, the central question considered was whether the need for intent prescribed by s 8(2)(a) of the Succession Act 2006 (NSW) was satisfied.

The Court first assessed the characteristics of the Note, which pointed to the deceased’s clear and unequivocal intention that it operate as his will ‘without more’.⁵ This conclusion was supported by the Note’s clear title indicating ‘finality and formality’, its unambiguous and exclusionary wording and the presence of a date and signature, symbolising a ‘mark of assent’. ⁶

Considering the scope of these terms, the Court diverged from Justice Richmond’s finding that the Note left some ‘significant assets’ unaccounted for, noting its final emphatic sentence: ‘No one else gets a thing’.⁷

Beyond the Note’s contents, the context surrounding its inception was deemed significant. The Court emphasised the profound medical emergency suffered by Colin, describing it as the ‘catalyst that prompted the making of the Note’.⁸

Further extrinsic evidence reiterated Colin’s intention that the Note was to serve as his will. For example, he told his housekeeper Ms Jones that he had ‘finalised’ his will and discouraged Mr Wheatley from purchasing a smaller apartment, remarking: ‘You won the lottery the day you met me’.⁹

Though the Court expressed concerns regarding the conduct of Mr Dawson in deleting messages and other documents on Colin’s iPhone, his actions were not considered to have a material impact on the testamentary intentions of the deceased.¹⁰

1. Wheatley v Peek [2025] NSWCA 265 ↩︎
2. Ibid [3] ↩︎
3. Ibid [38] ↩︎
4. Ibid [46] ↩︎
5. Ibid [47] ↩︎
6. Ibid [47]–[55] ↩︎
7. Ibid [55]–[56] ↩︎
8. Ibid [68] ↩︎
9. Ibid [70]–[74] ↩︎
10. Ibid [60] ↩︎