Introduction
Informal wills are becoming increasingly popular due to their lower cost and accessibility. The common mode of delivery has broadened from traditional paper-based wills to digital formats.
The recent judgment in Peek v Wheatley1 offers a good summary of the legal principles applicable to the evolution in the drafting and execution of wills and highlights the professional and ethical responsibilities of solicitors under the Australian Solicitors’ Conduct Rules 2023.
Background
The central issue in these proceedings was whether a digital document, found on the deceased’s mobile device, should be admitted to probate as an informal will.
Colin Peek died on 16 August 2022 and a note on his iPhone titled ‘Last Will of Colin L Peek’ was found by his solicitor, Peter Dawson and close friend Brad Wheatley.
No formally executed will was located.
Mr Wheatley was named executor in the note and applied for probate in February 2023.
The terms of the deceased’s note specified that approximately $10.3 million of the deceased’s estate would pass to Mr Wheatley, approximately $990,000 to Ronald Peek (the deceased’s brother) and the remainder of the estate was to be distributed through gifts and to friends, which included $308,495.53 to Mr Dawson.
Ronald Peek challenged the probate application and sought a grant for letters of administration on the basis he was entitled to the whole estate.
The will was ultimately found to be invalid, but not because it was drafted and located on a mobile phone. It was because Ronald Peek was unable to establish the deceased had intended the note to operate as his will.
Formality and signatures
The deceased’s note was not signed or initialled.
It was observed the presence of a signature would, in most cases, indicate the necessary testamentary intention and where a signature is absent, initials may be sufficient.
However, while one factor in considering intent, the presence or absence of a signature or initials is not of itself conclusive.2
A court may still admit a document to probate and dispense with the usual formalities if the testator has shown a clear intention to dispose of property and intends the document to constitute his or her will.3
Establishing Intent
The judge observed there were points for and against the requisite intention.
Intent is determined by the language contained in the will, potentially assisted by extrinsic evidence.
As the note was entitled ‘Last Will of Colin L Peek’ , it suggested finality and a degree of formality and intention.
The extrinsic evidence included the deceased’s failure to inform Mr Wheatley of the existence of the note and or send it to Mr Dawson prior to his death, which was found to demonstrate a lack of intent.
In addition, it was important that Mr Wheatley had communicated several times with the deceased by text and phone but failed to produce evidence of the contents of those conversations.
The court applied the Jones v Dunkel4 principle to infer the absent evidence would not have supported a ‘testamentary intention’.
Conflicts of Interest
A solicitor must of course be cautious when acting in proceedings where a conflict of interest may arise. For example, where the solicitor has a personal interest in the outcome it is likely to put the administration of justice at risk.5
Mr Dawson acted for Mr Wheatley in the proceedings notwithstanding he had a personal interest in the outcome of the matter as a beneficiary of the will and was also a material witness.
Although Rules 4, 12 and 17 of the Australia Solicitor’s Conduct Rules oblige solicitors to maintain their integrity and professional independence, serve the best interests of their clients and exercise independent forensic judgment throughout the case, the court did not make a formal finding of professional misconduct against Mr Dawson.
The Judge did however identify and criticise the conflict of interest and concluded that due to the conflict, the evidence provided by Mr Dawson diminished the probative value of all the defence witnesses, as Mr Dawson was responsible for preparation of all that evidence.6
Summary and implications for solicitors
The outcome leaves open the possibility that wills, in the form of informal statements, may be legally-binding.
Informal wills may be legally recognised if there is sufficient evidence testator clearly intended the document to operate as a will and dispose of property. However, informal wills are more vulnerable to being challenged which may lead to increased costs and time-consuming litigation.
To the extent they may become involved or be asked to advise, solicitors must identify the pitfalls in drafting an informal will and becoming involved in any subsequent dispute where there is a conflict of interests.
If consulted, a solicitor must ensure that to minimise any ambiguity, the testamentary intention of any will is clearly articulated, using precise language and bearing the signatures of the testator and witnesses.
For example, it is prudent when drafting a will to begin with a strong statement of testamentary intent, for example using language such as ‘My Will’ and depositing the document in the safe custody of the person’s solicitor.7
A solicitor must always remain mindful there may be a risk of a finding of unsatisfactory professional conduct or professional misconduct if they act in a matter where they have a personal interest or benefit from the outcome.
1 [2025] NSWSC 554 (‘Peek v Wheatley’).
2 Peek v Wheatley (n 1), [147].
3 Halsbury”s Laws of Australia, 395.
4 Jones v Dunkel (1959) 101 CLR 298, 321.
5 Barrak Corporation Pty Ltd v Kara Group of Companies Pty Ltd [2014] NSWCA 395, 18.
6 Peek v Wheatley (n 1), [68].
7 Sadleir v Kahler & Ors [2018] QSC 67, 5.
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
