Digital documents as Wills: court finds iPhone Note was legally binding
In a significant decision for estate planning and litigation, the NSW Court of Appeal in Wheatley v Peek [2025] NSWCA 265 considered whether a document found in the ‘Notes’ application on the deceased’s iPhone (Note) should be admitted to probate as an informal Will under section 8 of the Succession Act 2006 (NSW) (Act).
The law on informal Wills
Generally, a valid Will must comply with the formal requirements for execution, alteration or revocation under chapter 2 of the Act.
However, section 8 dispenses with these requirements by providing that a document may form a Will if a court is satisfied that the deceased had the requisite testamentary intention for it to be effected as such.
The original decision
At first instance, the NSW Supreme Court held that the Note had not been shown to reflect the deceased’s intention for it to have immediate effect as a Will. The court noted:
- the Note did not deal with all of the assets held by the deceased;
- the Note was a draft only and not intended to have operation as a Will; and
- the deceased had not taken further steps to formalise the document, such as sending it to a solicitor.
As a result, the court granted Letters of Administration to the deceased’s brother, on the basis that the deceased died intestate.
The appeal
The executor named in the Note appealed the decision of the primary judge, arguing that the Note was intended to operate as the deceased’s final Will. The question on appeal was whether the deceased intended the Note to form his Will within the meaning of section 8(2)(a) of the Act or whether, as the primary judge found, the Note was only a draft Will or set of instructions that was intended to be, but was not, sent to his solicitor.
The NSW Court of Appeal allowed the appeal, concluding that the Note did reflect the deceased’s testamentary intention that the Note should operate as his Will. The court’s key findings included:
- The context: the Note was created the day after the deceased suffered a near-death experience due to diabetic complications - suggesting urgency and intent.
- The substance and structure: the Note was written with a high level of finality and formality. It was titled ‘Last Will of Colin L Peek’, dated, and included clear directions for distribution of assets.
- The signature: the deceased had electronically signed the Note with his initials, which the Court accepted as satisfying section 6 of the Act.
- The subsequent conduct: the deceased told a friend he had finalised his Will and implied the friend would benefit from his estate, reinforcing the Note’s intended legal effect. The Court of Appeal was satisfied the deceased knew that a valid Will was a precondition to ensuring his estate could be inherited by his friend and this extrinsic evidence strengthened the conclusion that the Note was created with the intention of it being the deceased’s final Will.
Crucially, the court held that the Note did deal with the entirety of the deceased’s estate, contrary to the earlier finding.
Key takeaways
This decision highlights how courts are adapting to modern technology in the context of informal Wills.
For clients, this highlights the importance of ensuring Wills are:
- Formally prepared and executed, wherever possible, to avoid ambiguity and costly and time consuming disputes; and
- Reviewed and updated following major life events or health scares.
If you are unsure whether a document could be considered a valid Will or require advice on informal Wills, preparing a Will, estate disputes or probate matters, please get in touch.
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