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A recent NSW Court of Appeal case highlights the costly risks of DIY Wills after a businessman drafted his Will as a note on his iPhone, underscoring the importance of seeking proper legal advice when preparing your estate plans.
In the case of Wheatley v Peek [2025] NSWCA 265, a wealthy 79-year-old businessman attempted to create a Will using a digital note on an iPhone shortly after a near-death experience in August 2022. He passed away two weeks later. The note appointed one of his friends as executor of his Will and gifted the same friend the majority of his estate (in total, worth around $13 million), with a smaller gift to his brother. The note was located three days after the man's death by his solicitor, who was also named as a beneficiary.
Although the note was eventually upheld by the Court as an 'informal Will', the matter only resolved following extended and costly litigation over more than three years.
The court proceedings
In early 2023, the deceased man's friend applied for probate of the note as an 'informal Will', because it did not meet the legislative requirements of a formal Will. However, the deceased man's older brother opposed this claim, initiating his own claim that the note was not an informal Will, and as such his brother had died intestate (i.e. without a Will). This would have resulted in the brother inheriting the whole estate as the sole surviving family member.
The brother succeeded in his claim in the first case in early 2025 when the New South Wales Supreme Court determined that the note did not satisfy the requirements of an 'informal Will'. The primary judge accepted arguments that the note resembled a draft of instructions and raised concerns about whether all significant assets had been dealt with, as well as concerns about potential conflicts involving the deceased's solicitor.
The deceased man's friend then successfully appealed the decision in the New South Wales Court of Appeal in late 2025.
The Court accepted that the note met the first two of the three established tests for an informal Will, being that it was 'a document', and expressed the deceased's testamentary intentions. However, both cases hinged upon the third test of whether the deceased intended for the note itself to be his final Will without taking any further steps. The competing view was that the deceased considered the note to be a draft of his instructions – a finding made at first instance, but later set aside on appeal.
In both cases, weight was given to evidence from those around the deceased at the time he made the note. The Court of Appeal considered the characteristics of the note, noting its title ('Last Will of Colin L Peek'), the presence of a date, and the deceased's signature, as well as other intrinsic evidence which pointed to the man's intention that the note operate as his Will, 'without more'.
The Court also rejected the primary judge's view that the note left significant assets unaddressed, pointing to the note's concluding statement, 'No one else gets a thing', as evidence that the deceased believed he had dealt with his entire estate.
Justice Payne said the 'most important' piece of evidence that proved the note was intended to be the deceased's last Will and testament was from his housekeeper, who said the deceased had told her he had finalised his Will. The Court also considered further extrinsic evidence which supported the conclusion that the deceased had formed a settled intention as to the distribution of his estate, and emphasised the significance of the earlier medical emergency suffered by the man, explaining it as the 'catalyst that prompted the making of the note'.
The Court also considered evidence regarding the actions of the deceased's solicitor, who had acted from an inherently conflicted position, being a witness, a beneficiary, and having duties to the Court by continuing to act in the litigation. While these concerns were noted, the Court of Appeal ultimately found they did not undermine the clear evidence of the deceased's testamentary intention.
Ultimately, the Court of Appeal determined that the note was an informal Will and ought to be admitted to probate.
Key takeaways
Some might say that the right result was reached in the end. However, the deceased was purportedly an astute businessman, who would likely have regretted the significant time and costs incurred which ultimately impacted his estate. If he had simply made a formal Will, with a solicitor, then the delays and costs could have been avoided, along with all the associated publicity.
Although this is the most recent case in a series of similar informal Will cases, it likely won't be the last, particularly with the rise and accessibility of technology. It serves as a useful reminder that having a legally valid Will is crucial to ensure your wishes are followed.
The decision reinforces several important reminders:
- Avoid relying on informal, DIY or digital notes: While the Court accepted the iPhone note in this case, such documents often create uncertainty and can expose your estate to lengthy and costly disputes.
- Seek professional advice early: Working with a solicitor helps ensure your wishes are clearly documented and legally effective, reducing the likelihood of conflict or challenge later on.
- Review and update your Will after major life events: Illness, the purchase or sale of significant assets, changes in relationships, or the death of intended beneficiaries should all prompt a review.
- Be conscious of conflicts of interest: Naming a friend, business associate, or adviser (such as a solicitor or accountant) as both executor and beneficiary can raise complications. Professional guidance can help manage or avoid these issues.
If you are considering drafting or updating your Will, our Wills & Estates Team can guide you through the process and help ensure your wishes are properly protected.
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.
