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The Facts
Ambulance called after man has severe diabetic
episode
A case in NSW revolved around the question of whether a note on
a mobile phone should be admitted to probate as an informal
will.
A 79-year-old man had an estate worth $13.6 million.
He had no surviving dependants and lived alone, but maintained
close relationships with his older brother and with his best
friend, who had become like a son to him.
For years, the man's solicitor had "badgered" him
to make a will, but he kept putting it off, saying he didn't
know what to do with his money.
On 4 August 2022, the man had a severe diabetic episode in the
middle of the night and called an ambulance, as well as calling his
best friend, who drove to the man's house.
After the paramedics left at around 3:30am, the man's friend
told him he needed to "put in writing what his intentions were
with his property" because "none of us know when
we're going to go."
Document created in Notes app on iPhone
On the afternoon of the same day, the man created a new document
in the "Notes" app of his iPhone. It was entitled
"Last Will of [name]" ("the Note").
According to the Note, the bulk of the man's estate, being
approximately $10.3 million, was to pass to his best friend, who
was also named as executor. Other smaller gifts included one of
approximately $990,000 which was to go to the man's
brother.
Document found on phone after man's
death
Twelve days later, the man passed away in his sleep. He
hadn't told anyone about the Note.
When the man's friend and his solicitor searched the
man's house, they did not find a formal will.
However, the solicitor discovered the Note on the man's
phone.
Brother takes legal action after friend applies for
probate
The man's friend then applied to have the Note admitted to
probate as an informal will under section 8 of the NSW
Succession Act.
In response, the man's brother applied to the Supreme Court
of NSW, arguing that the deceased did not intend the Note to
operate as his will and therefore had died intestate. As the
man's only surviving family member, the brother would inherit
the man's entire estate.
The issue for consideration by the court was whether the
deceased intended the Note to operate as his will, or whether it
was merely a preparatory step towards the making of a will.
CASE A
The case for the brother
CASE B
The case for the best friend
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.
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
