A recent series of decisions of the New South Wales Court of Appeal serves as an important reminder that estate planning is not simply about identifying beneficiaries and succession objectives. It is equally important to ensure that those intentions are properly documented and legally implemented
In, Wheatley v Peek [2025] NSWCA 265, the Court was required to determine whether a note saved on a deceased person’s iPhone constituted a valid informal Will under s 8 of the Succession Act 2006 (NSW). In Kemp v Findlay [2025] NSWCA 46, the Court considered whether an unsigned electronic document described by the deceased as his “new will” could be admitted to probate despite never having been formally executed.
Together, these decisions highlight the risks that can arise when testamentary intentions are recorded informally rather than through properly drafted and duly executed estate planning documents.
For accountants, financial planners and other professional advisers involved in succession planning, the cases reinforce the importance of ensuring that estate planning strategies are not only discussed but ultimately implemented through appropriate legal documentation.
Wheatley v Peek
In this case, Colin Laurence Peek died on 16 August 2022, leaving an estate valued at approximately $13.6 million. No formally executed Will could be located following his death. Instead, a note was discovered in the “Notes” application on his iPhone entitled:
“Last Will of Colin L Peek”
The note appointed an executor, distributed assets among various beneficiaries and dealt with the residue of the estate. The evidence established that the document was created shortly after the deceased experienced a serious medical episode, which caused him to confront the possibility of his own mortality.
A close friend, named as executor and principal beneficiary, sought probate of the document as an informal Will. The deceased’s brother opposed the application and argued that the deceased had died intestate. The critical issue was whether the deceased intended the iPhone note itself to operate as his Will.
The Supreme Court Decision
At first instance in Peek v Wheatley [2025] NSWSC 554, the Supreme Court declined to admit the iPhone note to probate.
Although the Court accepted that the note recorded the deceased’s testamentary intentions, it was not satisfied that the deceased intended the document itself to operate immediately as his Will. The Court considered that the document may instead have been intended as a draft or as instructions to be given to a solicitor for the preparation of a formal Will.
The Court therefore found that the requirements of s 8 of the Succession Act had not been established and concluded that the deceased had died intestate.
The Court of Appeal Decision
The matter was appealed, and the New South Wales Court of Appeal unanimously overturned the first instance decision. Probate of the iPhone note was granted as a valid informal Will.
The Court placed significant weight on:
- the title “Last Will of Colin L Peek”;
- the appointment of an executor;
- the detailed disposition of assets;
- the inclusion of a residuary disposition;
- the fact that the document was dated and initialled;
- the deceased’s near-death experience shortly before the note was prepared; and
- evidence that the deceased subsequently stated that he had “finalised” his Will.
The Court ultimately concluded that the deceased intended the note to operate as his Will without any further action being required on his part.
Kemp v Findlay
In Kemp v Findlay [2025] NSWCA 46, the Court considered an unsigned electronic will document created by the deceased following the breakdown of a long-term de facto relationship.
The deceased emailed the document to his cousin and stated:
“This is my new will. I am yet to get it signed in front of my lawyer but I intend to do so.”
He later added:
“If I went under a bus between now and then my wishes would at least be clear.”
Although the document was never formally executed, the Court of Appeal upheld the primary judge’s finding that the deceased intended the document to operate as his Will. Importantly, the Court found that the deceased’s intention to formally sign the document at a later time did not prevent it from operating as a valid informal Will in the meantime.
Key Takeaways
The significance of these decisions is not simply that electronic documents were ultimately recognised as valid Wills.
The more important lesson is that both estates became the subject of substantial litigation before the issue was resolved. Questions arose as to whether the documents constituted operative Wills, whether they were merely drafts, and whether they represented a sufficiently final expression of testamentary intention. A properly drafted and duly executed Will would likely have avoided the uncertainty, delay and legal costs associated with those disputes.
These cases demonstrate that informal testamentary documents frequently give rise to disputes concerning:
- whether the document was intended to operate as a Will;
- whether the document was merely a draft or set of instructions;
- whether the document was intended to replace or supersede an earlier testamentary arrangement;
- whether the document dealt with the whole estate; and
- what the deceased’s true intentions were.
Risks for Advisors
The implications of these decisions extend beyond lawyers.
Many professional advisors undertake estate planning reviews with clients as part of broader succession planning advice. It is common for advisers to assist clients in identifying:
- executors;
- guardians for minor children;
- attorneys under enduring powers of attorney;
- beneficiaries;
- family structures;
- asset and liability schedules; and
- proposed estate distributions.
As part of that process, advisers may prepare estate planning questionnaires, strategy papers, client review documents, fact-finds, file notes, or email summaries before referring the client to an estate planning solicitor.
While those documents are generally intended solely to assist in obtaining legal advice, recent authorities demonstrate that courts are willing to examine a broad range of documents when determining whether an informal Will exists. Documents considered by courts have included handwritten notes, emails, computer files, electronic documents and draft testamentary instruments. The critical question remains whether the deceased intended the document itself to operate as their Will.
Importantly, Wheatley v Peek and Kemp v Findlay demonstrate that documents created outside a solicitor’s office may subsequently become central pieces of evidence in probate litigation.
Particular care should be exercised where an adviser prepares a document recording a client’s proposed estate planning arrangements and the client:
- initials the document;
- signs the document;
- confirms the contents by email; or
- otherwise adopts the document as accurately reflecting their wishes.
Additional caution should be exercised where the document records:
- executor appointments;
- beneficiary nominations;
- specific gifts;
- percentage allocations;
- guardianship arrangements;
- succession plans; or
- statements suggesting finality.
If a client dies before attending an estate planning solicitor, or before formal estate planning documents are signed, those records may later be scrutinised in probate proceedings as evidence of testamentary intention.
This does not mean that an adviser’s questionnaire, fact find, review document or file note will automatically become a Will. However, it may become part of the evidentiary picture that a court considers when determining whether an informal testamentary instrument exists under s 8 of the Succession Act 2006 (NSW).
Given the increasing willingness of courts to scrutinise informal documents when determining testamentary intention, advisers should carefully review the wording used in estate planning questionnaires, fact finds, succession planning reviews, file notes and client confirmation documents.
Consideration should be given to ensuring that such documents clearly identify their limited purpose as preliminary information-gathering and legal instruction documents, rather than operative testamentary instruments.
Appropriate disclaimers and client acknowledgments may assist in reducing the risk of uncertainty if a client dies before formal estate planning documents are prepared and executed.
How We Can Help
At MistryFallahi Lawyers & Business Advisors, we assist with Wills, estate planning, probate applications, letters of administration and contested estate matters. We also assist clients with probate and estate administration matters in New South Wales, Victoria and Queensland.