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[2025] NSWCA 265
appellant. The Notice of Motion dated 26 August 2025 was dismissed and the appeal was allowed. The primary orders were set aside, Ronald’s Statement of Claim was dismissed, and probate of the informal will...
The Court of Appeal decided that Colin Peek’s iPhone Note was his will, even though it had not been made with the witnesses required for a formally executed will. The Note’s title, date, initials, wording, coverage of his estate and surrounding evidence persuaded the Court that Colin regarded it as final. His cleaner’s evidence that he said he had “finalised” his will and his later conversation suggesting Wheatley would receive substantial funds supported that conclusion. The Court also held that the absence of publication did not itself prevent probate. It allowed Wheatley’s appeal and ordered the Note admitted to probate.
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2,315 words · generated 06/10/2026
Wheatley v Peek concerned an informal will under s 8 of the Succession Act 2006 (NSW). Colin Laurence Peek died on 16 August 2022, aged 79. No will executed in accordance with the formal requirements was found. Instead, his solicitor, Mr Dawson, discovered a document in the Notes application on Colin’s iPhone on 19 August 2022. The document was headed “Last Will of Colin L. Peek” and is referred to in the judgment as the Note. It was created on 4 August 2022. [2]-[4], [24]-[25]
6 cited instruments linked from this judgment.
The Note appointed Brad Anthony Wheatley as executor and made gifts from the estate. The judgment described the estate as worth approximately $10.3 million in its introductory account, while the primary judge’s findings referred to a gross value of approximately $13.64 million. The Court of Appeal’s decision turned on whether Colin intended the Note to form his will, not on determining the estate’s precise value. The Note provided for the bulk of the estate to pass to Wheatley, with a smaller gift to Colin’s brother, Ronald Peek, and gifts to friends. [5], [51]-[55]
Ronald argued that Colin did not intend the Note to operate as his will. If there was no valid will, Ronald sought to administer the estate as Colin’s brother, given that Colin was not survived by a spouse, child or parent. Wheatley, the executor named in the Note, sought probate of it under s 8. At first instance, the primary judge concluded that the required intention had not been established. The Court of Appeal took a different view of the evidence and allowed Wheatley’s appeal. [6]-[8], [14], [38]
The orders directed probate of the informal will and referred the proceedings to the Senior Deputy Registrar in Probate to complete the grant. A later amendment recorded that there was to be no order as to costs between the parties for the trial and appeal, while Wheatley was to receive an indemnity for his costs from the estate. [79] The amendment also removed costs wording from the order dismissing Ronald’s claim.
The Court treated the disputed element as whether Colin intended the Note to form his will. The parties did not dispute that it was a “document” and that it purported to state testamentary intentions. The third element was the only one in issue. [9]-[12]
Section 8(1) applies to a document that purports to state the deceased’s testamentary intentions and was not executed in accordance with the statutory formalities. Under s 8(2)(a), the document forms the deceased’s will if the Court is satisfied that the person intended it to form their will. Sections 8(3) and (4) allow consideration of evidence about the document’s creation, the deceased’s statements and other relevant matters. [41]
Payne JA emphasised the Note’s own features. Its heading, “Last Will of Colin L. Peek”, was a strong initial indication of finality. Its wording was not ambiguous, a point Ronald’s counsel accepted in oral submissions. The Note was dated, which the Court regarded as supporting the view that it was final rather than merely a draft. The initials “CP” at the end were a mark of assent and supported the same conclusion. [46]-[50]
The treatment of the estate was also important. The primary judge had considered that significant assets, including interests in companies and a trust, were omitted. Payne JA concluded that the Note did deal with Colin’s assets when read as a whole. Among other things, the Note dealt with the house, vehicles, bank accounts, joint venture dividends and a loan. Evidence about the value of the companies and trust led the Court to conclude that those interests were connected with the Bella Vista Waters property specifically given to Wheatley. The emphatic ending, “No one else gets a thing”, supported the view that Colin understood he had dealt with the estate as a whole. [51]-[56]
The circumstances of creation reinforced the document’s wording. Colin had experienced a serious diabetes-related medical emergency in the early hours of 4 August 2022. The paramedics told him he had been close to a diabetic coma. After they left, Wheatley urged Colin to put his intentions about his property in writing. The Note was created later that morning. Payne JA viewed the emergency as an immediate catalyst, more significant in this context than Colin’s earlier discussion with Mr Dawson on 21 July. [22]-[25], [68]-[69]
The Court also gave weight to evidence that Colin said he had “finalised” his will. Ms Jones, his cleaner, testified that on 11 August he said words to the effect that he had finalised his will and decided to leave a small percentage to Ronald. The primary judge had accepted her evidence. Payne JA read the past-tense statement as an unequivocal representation that Colin regarded his will as final, not merely as instructions that remained to be sent to a solicitor. [28], [70]-[72]
A conversation with Wheatley on 13 August provided further support. Colin discouraged Wheatley from buying a small apartment and told him he could later buy a larger one. He said, “You won the lottery the day you met me!” The Court considered this consistent with Colin expecting Wheatley to receive significant funds. It did not treat the conversation as conclusive in isolation, but as extrinsic evidence supporting the intention indicated by the Note and Ms Jones’s account. [73]-[76]
The judgment did not establish a new statutory test. It applied s 8 and treated the three-element formulation associated with Hatsatouris v Hatsatouris and The Estate of Masters as applicable to the current Act. The relevant elements were: a document; a document that purports to state the deceased’s testamentary intentions; and the deceased’s intention that it form their will. In this case, only the third element was disputed. [9]-[12], [42]
The Court reiterated that the person asserting the informal document’s validity bears the civil onus. It also confirmed that the relevant intention need not necessarily exist at the time the document was created: according to Kemp v Findlay, it may be established if the deceased subsequently adopted the document as their final will by words or conduct. [44]
An important clarification concerned publication. The primary judge had regarded it as surprising that Colin did not tell Mr Dawson or Wheatley that he had made his will or where it could be found. Payne JA accepted that publication may often be important evidence of intention, but stated that it is not a required element under the Succession Act. The Court assessed the lack of communication as part of the whole factual context rather than treating it as a legal prerequisite. [75]-[76]
The judgment also cautioned against allowing the expression “without more on his part” to replace the statutory inquiry. Citing Newman v Brinkgreve, Payne JA noted that the focus remains on the deceased’s actual testamentary intention concerning the particular document. His Honour expressly said that nothing turned on this observation in the present case. It is therefore a caution about the analytical approach, rather than a different test or an outcome-determinative holding. [43]
On adverse inferences, the Court discussed the limits of the Jones v Dunkel principle through Kuhl v Zurich Financial Services Australia Ltd and SSABR Pty Ltd v AMA Group Limited. The Court stated that the principle cannot supply missing evidence or support a positive inference where the evidence does not rationally permit it. In this case, suspicion about missing phone data did not establish that the deleted material concerned the Note or Colin’s testamentary intentions. [62]-[67]
At [47], Payne JA said the title “Last Will of Colin L Peek” was “an initial powerful indication” that Colin intended the Note to operate as his will. In plain English, the Court viewed the document’s own label as meaningful evidence of its purpose, especially because the label stated that it was a last will rather than preliminary notes or instructions.
At [50], the Court treated Colin’s initials as a mark of assent. The point was not simply that initials can satisfy a signature requirement in every context. Rather, on the evidence and in this document, the initials supported the conclusion that Colin approved the Note as a finished document.
At [56], the Court relied on the final sentence, “No one else gets a thing.” Payne JA said this was a strong indication that Colin believed he had dealt with all his assets. In plain English, the Court read the statement as showing that Colin considered the distribution in the Note complete, not as an unfinished list awaiting a solicitor’s additions.
At [71]-[72], the Court focused on Ms Jones’s account that Colin said, “I have finalised my will.” Payne JA considered the wording and tense important: Colin described an action already completed. The Court found the explanation that he meant only that he had finalised draft instructions less persuasive in the context of her accepted evidence.
At [76], the Court stated that publication is not a required element of an informal will. In plain English, a person’s failure to tell someone that a document exists does not by itself prevent the document from being a will. It may still be relevant evidence, but it is not an independent statutory condition.
At [66], the Court said that inferring the content of missing phone communications would be “a guess or conjecture”. The practical significance in this case was evidentiary: concern about deleted messages did not allow the Court to assume, without a rational foundation, that those messages would have shown the Note was only a draft.
The decision is most directly relevant to disputes about an informal document that was not executed under the ordinary will formalities, where the central question is whether the deceased intended that particular document to form their will. Here, it was common ground that Colin authored the Note and that it reflected his testamentary intentions. The contest was about whether those intentions were to operate through the Note itself or were merely instructions for a later formal will. [24], [29], [45]
The judgment illustrates a fact pattern in which the document’s own form and language may be significant: it was expressly titled as a last will, dated, signed with the deceased’s initials, and contained apparently comprehensive directions about the estate. The decision also shows the possible relevance of contemporaneous circumstances, such as a medical emergency shortly before creation, and later statements indicating that the deceased considered the will final. [46]-[57], [68]-[72]
The case also addresses evidence of intended beneficiaries’ expected inheritance. Colin’s conversation with Wheatley about delaying an apartment purchase was treated as consistent with Wheatley expecting substantial funds. The Court regarded that conversation as supporting evidence, not a substitute for assessing the Note and the full surrounding circumstances. [73]-[76]
It is also relevant where a party relies on missing electronic communications or the conduct of people who had access to the deceased’s device. The Court did not disregard concerns about deleted messages; it found that those concerns could not establish what the messages said or that they related to testamentary intentions without a rational evidentiary basis. [59]-[67]
The judgment provided here does not contain any decisions made after Wheatley v Peek, so it cannot establish how later courts have treated it. No later judicial consideration, approval, distinction or departure is identified in the supplied text.
The judgment itself explains the precedents it applied or discussed. It treated the three-part formulation associated with Hatsatouris v Hatsatouris as applicable to s 8 of the Succession Act, noting that the formulation had also been applied to that section in Burge v Burge and Kemp v Findlay. It applied Kemp on the point that testamentary intention may be adopted later through words or conduct. [42], [44]
It also referred to Newman v Brinkgreve for the caution that shorthand expressions should not distract from the actual statutory question. For the evidentiary issue, it considered Kuhl and applied the limitation described in SSABR: adverse inferences cannot supply missing gaps or be drawn positively without a rational basis in the evidence. [43], [62]-[66]
These are the relationships stated in this judgment. Whether subsequent courts have followed or developed Wheatley v Peek requires later authorities not included in the judgment supplied here.
The decision turns on its particular evidentiary record. It does not determine that a document titled “Last Will” will necessarily satisfy s 8, or that a date and initials will be sufficient in every case. The Court assessed those features alongside the Note’s substantive provisions, the circumstances of creation, and the evidence of Colin’s later statements. [46]-[57], [68]-[77]
The judgment also does not establish a general rule about how comprehensive an informal document must be when it deals with an estate containing complex company or trust interests. The Court’s conclusion depended on the evidence linking the relevant interests and property, and on the particular gifts and wording in this Note. [51]-[56]
Nor does the judgment decide that failure to publish a document is irrelevant. It says publication is not required, while recognising that publication will often be important evidence. How much weight a court gives to silence or non-disclosure will depend on the evidence in a particular case. [76]
Finally, the Court’s treatment of deleted messages should not be read as resolving every case where electronic evidence is missing or has been deleted. Payne JA expressly shared the primary judge’s concerns about Mr Dawson’s conduct. The result followed because the Court found no rational basis to infer that the missing communications concerned Colin’s testamentary intentions, and because authorship and testamentary content of the Note were common ground. [59]-[67]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Wheatley v Peek [2025] NSWCA 265
Hearing dates: 4 November 2025
Date of orders: 10 December 2025
Decision date: 10 December 2025
Before: Bell CJ at [1];
Payne JA at [2];
Mitchelmore JA at [80].
Decision: (1) Dismiss the appellant’s Notice of Motion dated 26 August 2025.
(2) Appeal allowed.
(3) Set aside the orders made by the primary judge on 30 May 2025 and 22 September 2025 and in lieu thereof order:
(a) Plaintiff’s Statement of Claim dated 19 May 2023 dismissed.
(b) Probate of the informal will dated 5 August 2022 and titled "Last Will of Colin L Peek" be granted to Brad Anthony Wheatley, the executor named therein.
(c) The proceedings be referred to the Senior Deputy Registrar in Probate to complete the grant.
(d) That Brad Anthony Wheatley be entitled to an indemnity with respect to his costs out of the Estate.
(4) Notes the agreement between the parties that there be no order as to costs between them of the trial and of the appeal.
Catchwords: WILLS, PROBATE AND ADMINISTRATION – informal wills – Succession Act 2006 (NSW) s 8 – where a document saved on deceased’s iPhone in the Notes application – whether deceased intended document without more to operate as a will – evidence that the deceased considered the document final – where no publication of will prior to death – where will discovered after death
Legislation Cited: Interpretation Act 1987 (NSW), Schedule 4
Succession Act 2006 (NSW), ss 3, 6, 8
Supreme Court Act 1970 (NSW), s75A
Wills, Probate and Administration Act 1898 (NSW), s 18A
Cases Cited: Burge v Burge [2015] NSWCA 289
Etherton v Mitchelmore [2024] NSWSC 170
Hatsatouris v Hatsatouris [2001] NSWCA 408
Kemp v Findlay [2025] NSWCA 46
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371
Peek v Wheatley [2025] NSWSC 554
Re Application of Tristram [2012] NSWSC 657
Re the Estate of Kiepas (dec’d); Twemlow v Kiepas [2004] NSWSC 452
SSABR Pty Ltd v AMA Group Limited [2024] NSWCA 175
The Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446
Category: Principal judgment
Parties: Brad Anthony Wheatley (appellant)
Ronald William Peek (respondent)
Representation: Counsel:
L Ellison SC / KM Francis (appellant)
S Chappel SC / H Morrison (respondent)
Solicitors:
Angelos, Nicholas Angelos & Co (appellant)
Hicksons | Hunt & Hunt (respondent)
File Number(s): 2025/00234844
Publication restriction: None
[This headnote is not to be read as part of the judgment]
The issue in this case is whether a document found in the ‘Notes’ application on the iPhone (the ‘Note’) of the late Colin Laurence Peek who died on 16 August 2022 aged 79 years, should be admitted to probate as an informal will under s 8 of the Succession Act 2006 (NSW).
At first instance, it was held that the Note had not been demonstrated to have been intended by the deceased to have present operation as a will, without more. Letters of Administration of the intestate estate of the deceased were granted to the deceased’s brother. The executor named in the Note appealed the decision of the primary judge. The critical question on this appeal is therefore whether the deceased intended the Note to form his will within the meaning of s 8(2)(a) of the Succession 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 Court (Payne JA, Bell CJ and Mitchelmore JA agreeing) allowing the appeal, held:
(1) The evidence of the Note itself is compelling and indicates that the deceased had the requisite testamentary intention that the Note should operate as his will, without more, per s 8(2)(a) of the Succession Act.
Kemp v Findlay [2025] NSWCA 46; Hatsatouris v Hatsatouris [2001] NSWCA 408
In particular:
(i) The Note was written with finality and formality and was not ambiguous: [45]-[48];
(ii) The Note was dated and signed: [49]-[50];
Estate of Kiepas (dec’d*); Twemlow v* Kiepas [2004] NSWSC 452
(iii) The Note sufficiently dealt with the entirety of the deceased’s estate: [51]-[57].
(2) The context of the creation of the Note was the deceased’s near-death experience immediately prior to its creation: [68]-[69].
(3) The extrinsic evidence supported a conclusion that the deceased intended that the Note operate as his will, without more. In particular:
(i) The deceased told his housekeeper Ms Jones he had finalised his will. That was an unequivocal representation that, in the deceased’s mind, the Note was in its final form: [70]-[72].
(ii) The deceased, in a conversation after the creation of the Note with the named executor in the Note essentially stated that that the executor would shortly receive a significant amount of money, consistent with a conclusion that the deceased intended the Note, without more on his part, to have operation as a will: [73]-[76].
BELL CJ: I have had the benefit of reading the reasons of Payne JA and agree with those reasons and the orders his Honour proposes.
PAYNE JA: The issue in these proceedings is whether a document found in the ‘Notes’ application on the iPhone (the ‘Note’) of the late Colin Laurence Peek, who without meaning any disrespect I will refer to as Colin, and who died on 16 August 2022 aged 79 years, should be admitted to probate as an informal will under s 8 of the Succession Act 2006 (NSW).
The Note is entitled ‘Last Will of Colin L. Peek’. It provided:
text version of Note (55.9 KB, rtf)
The Note was discovered on 19 August 2022 by Colin’s solicitor, Mr Dawson, at Colin’s home when he and the appellant, Mr Wheatley, were there looking for Colin’s will. Mr Dawson found the Note in Colin’s iPhone. No will executed in accordance with the requirements of the Succession Act was ever located.
Under the terms of the Note the bulk of Colin’s estate of approximately $10.3 million would pass to the appellant, Mr Wheatley, with a smaller gift of approximately $990,000 being made to Colin’s brother, the respondent Ronald Peek, who I will refer to as Ronald. The rest of Colin’s estate was divided up through gifts to friends, including 5% to Mr Dawson.
On or about 9 February 2023, Mr Wheatley, who was named as executor in the Note, applied for probate over the Note pursuant to s 8 of the Succession Act.
By statement of claim dated 19 May 2023, Ronald contended that Colin did not intend the Note to operate as his will and that, as no other document purporting to be testamentary in nature had been located, Colin died intestate. As Colin was not survived by a spouse, child or parent, Ronald sought an order for the grant of letters of administration on the basis that Ronald was entitled to the whole of Colin’s estate.
On 25 September 2023, Mr Wheatley filed a cross-claim seeking orders that the Note was a valid informal will pursuant to s 8 of the Succession Act and orders admitting the Note to probate.
There was no issue before the primary judge about the legal test to be applied in determining whether the Note should be admitted to probate: Peek v Wheatley [2025] NSWSC 554 (the ‘primary judgment’). The parties accepted there were three requirements to satisfy s 8 of the Succession Act*,* enunciated in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] per Powell JA and The Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446 at 452, among others.
First, there must be a ‘document’ within the meaning of s 3(1) of the Succession Act by reference to Schedule 4 of the Interpretation Act 1987 (NSW). The primary judge observed that there was no dispute that the Note is a ‘document’ for the purposes of the Succession Act and met this first requirement.
Secondly, the document must purport to state the testamentary intentions of the deceased: s 8(1)(a) of the Succession Act. Testamentary intentions are intentions about what is to be done with a person’s property upon that person’s death. The primary judge observed that there was also no dispute that the Note purported to state Colin’s testamentary intentions and, thus, the second requirement was also met.
Thirdly, the deceased must have intended the document to form his will: s 8(2)(a) of the Succession Act. In determining this question the court may, in addition to the document itself, have regard to evidence of the manner in which the document was executed, the testamentary intentions of the deceased, including evidence of statements made by the deceased, as well as any other matters relevant to the question: s 8(3) and (4) of the Succession Act.
It is only this third requirement which was in dispute in this case. As Ward P (with whom Leeming and Ball JJA agreed) said in Kemp v Findlay [2025] NSWCA 46:
[3] The critical question is and was whether the deceased intended the 2019 Will, without more on his part, to have “present operation as a will” (see NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872 at [15] per White J, as his Honour then was).
The primary judge was ultimately not persuaded that the Note met this third requirement.
The primary judge addressed the question of whether Colin intended the Note, without more on his part, to have “present operation as a will” by making findings about all of the witnesses who gave evidence before him. As to Ronald and Aaron Peek, Colin’s nephew, the primary judge found that their evidence was not material to the sole issue for determination.
The primary judge devoted the greatest attention to the evidence of Colin’s solicitor, Mr Dawson. His Honour expressed serious concern regarding Mr Dawson’s evidence. Mr Dawson acted for Mr Wheatley in the proceedings despite being a witness and having a financial interest in the outcome of the proceedings. Mr Dawson was in a position of conflict between his personal interest and his duty to the Court. He was cross examined about this conflict. The primary judge found:
[67] In my view, Mr Dawson ‘crossed the line’ referred to by Brereton J [in Mitchell v Burrell [2008] NSWSC 772 at [20]] in the present case because he had a clear conflict between his personal interests and his overriding duty to the court and the administration of justice. He had a personal interest in the outcome of these proceedings (he stands to benefit under the informal will his client propounds), he was a material witness in the proceedings (having been Colin’s lawyer and friend and in contact with him around the time that the informal will was drafted and was in Colin’s house several times after his death with possession and control of critical evidence, including the iPhone after Colin’s death) and he was the solicitor on the record for the defendant (preparing evidence in support of the informal will).
[68] While it is not appropriate that the court express a view on whether Mr Dawson engaged in professional misconduct by reason of a breach of r 27.2 of the 2015 Rules, his conflict of interest and duty affects the probative value of the evidence of all the witnesses for the defendant, as Mr Dawson was responsible for preparation of all that evidence.
[…]
[70] The fact that Mr Dawson discussed with Mr Wheatley the evidence he would give on matters on which there was overlap with Mr Dawson’s own evidence was improper and seriously undermines the probative value of the evidence of both of them because the court cannot be certain as to the extent to which their recollection of events is truly independent, or rather has been influenced by the version of the events given by the other...
Despite these serious credit findings, the primary judge accepted that Mr Dawson had a close relationship with Colin and spoke regularly to him about legal and personal matters. The primary judge accepted that Colin never gave Mr Dawson instructions sufficient to indicate his testamentary wishes. That matter was ultimately common ground. It is also clear that until the Note on the iPhone was discovered after Colin’s death, Mr Dawson had no knowledge of the Note’s existence.
The primary judge regarded it as important that Colin had told Mr Dawson on 21 July 2022 that he intended to give Mr Dawson instructions soon about the contents of his will and that Mr Dawson and Colin had numerous telephone conversations between 21 July 2022 and Colin’s death on 16 August 2022. The primary judge regarded it as important to his conclusion that Mr Dawson gave no evidence about the content of those conversations. It is important, however, to note at this stage that there were no findings made by the primary judge that any of these conversations related to Colin’s testamentary wishes generally or to the Note in particular.
Custody of the iPhone that contained the Note was a feature of Mr Dawson’s evidence. After Colin’s death on 19 August 2022, Mr Dawson took the iPhone. On 25 August 2022, Mr Dawson provided the phone to Mr Wheatley to allow him to respond to incoming calls and texts. In January 2023, the iPhone was returned to Mr Dawson but the sim card was retained by Mr Wheatley. Some text messages and emails on Colin’s phone were deleted but Mr Dawson did not explain in any convincing way in his evidence how it came to be that any of the text messages and emails on Colin’s phone came to be deleted.
The is no question that Mr Wheatley and Colin had a close relationship. Many witnesses described Colin as a father figure to Mr Wheatley. Much of the evidence in Mr Wheatley’s affidavits related to conversations and circumstances surrounding Colin’s death and events at the time of creation of the Note.
On 1 May 2022, Colin asked Mr Wheatley to be his executor. Colin explained to Mr Wheatley that he did not want Ronald to be left his estate, as Colin said he disliked Ronald’s immediate family.
On the evening of 3 August 2022 and into the early hours of 4 August 2022, Colin suffered a near-death experience. An ambulance was called to Colin’s home after he experienced severe symptoms associated with his diabetes. Colin called Mr Wheatley at around 12:30 am on 4 August 2022 and communicated, as best as he was able, that he’d called an ambulance and he needed Mr Wheatley to give them access to the house. Mr Wheatley immediately drove to Colin’s house, tended to him, and called 000 again asking the ambulance to hurry. During this time Colin consumed juice and began to feel better. The paramedics arrived at about 2 am. When the paramedics were questioning Colin, Mr Wheatley heard them advise Colin that he was ‘close to a diabetic coma and possibly therefore to death’. The paramedics wanted to take Colin to a nearby hospital, but Colin declined as he was feeling better.
[Mr Wheatley]: I said to him that after the paramedics had left his home and he was being flippant about the fact that he didn't have a diabetes blood sugar monitor. I said to him quite sternly that mate tonight you thought you were going to die and this should prove to you that when the mortality creeps up on you, you are unaware of it's going to happen. That he needed to put in writing what his intentions were with his property. And I said because none of us know when we're going to go. And I said do you understand what I'm saying? And he said I do. And that was the end of the conversation. And that was about half past three in the morning on 4 August.
On 4 August 2022, the Note was created by Colin on Colin’s iPhone. As I have said, it was common ground that the Note was prepared by Colin, and that it represented Colin’s testamentary intentions.
Colin’s iPhone was forensically examined by Mr Navid Sobbi, a joint court appointed expert. There was no dispute about Mr Sobbi’s evidence, which the primary judge summarised as follows at paragraph [118] of the primary judgment:
The Note was created on 4 August 2022 at 6:25 am. Mr Sobbi did not find any evidence that the Note was last edited on 5 August 2022 at 1:35 am, despite that date appearing on the screenshot set out at [3] above. The Note was the only document in the ‘Notes’ application found on Colin’s iPhone.
The Note was last opened on 22 March 2023 at 11:32 pm and modified/closed on 22 March 2023 at 11.33 pm but Mr Sobbi could not determine what edits (if any) were made. The primary judge recorded that it was not in dispute that there were no changes made to the document after 5 August 2022 and hence that there were no ‘modifications’ after that date.
The following data was able to be extracted from the iPhone: 10 voicemails (with dates ranging from 16 February 2022 to 13 October 2022), 87 contacts, 5 call logs (with dates ranging from 17 August 2022 to 13 October 2022) and 85 images. No SMS messages or emails were recovered.
In relation to the limited amount of data found on the iPhone, Mr Sobbi opined in his supplementary report as follows:
I did observe minimal data on the device. For example, the device had no SMS messages, emails, a small number of images, and only 5 call logs … Unless the user of the device did not use the device regularly, it appears that data may have been deleted over time. The device has one of the latest iOS versions installed. If data was deleted prior to this update or multiple updates since the time of the event, then this may indicate why there is minimal data on the device. If the user deletes data, then backs the device up to the cloud or a computer, then conducts a factory reset, sets up the device as a new phone and then restores the backup on the device, will (sic) the user be able to ensure what data is retained.
The primary judge found that texts and emails had been deleted from Colin’s iPhone after his death while the iPhone was in the custody of Mr Dawson and Mr Wheatley. The primary judge found that evidence that texts and emails had been deleted from Colin’s iPhone created uncertainty about whether the Court had the full picture as to the contents of the iPhone at the time of Colin’s death.
An important witness in the case was a Ms Jones, Colin’s cleaner from 2009 until his death. Ms Jones gave evidence that Colin would occasionally discuss with her how he would distribute his assets in the event of his death. She gave evidence that on 11 August 2022, Colin said to her words to the effect of “I have finalised my will and I decided to leave a small percentage to my brother Ron…”. When pressed in cross examination on what she meant by ‘words to the effect’ Ms Jones said “All I know is that’s exactly what he said: I have finalised my will”, and also that Colin said “a small percentage to his brother”. The primary judge accepted Ms Jones’ evidence.
Affidavits from six friends of Colin’s were read*.* Those witnesses predominantly addressed the subject of Colin’s testamentary intentions. None of them were cross-examined. Two had a financial interest in the estate under the terms of the Note. One is the partner of one such beneficiary. All confirmed with remarkable consistency that Colin did not intend to leave the majority of his estate to Ronald. Although there are reasons to criticise Mr Dawson’s conduct in preparing this evidence, the fact remains that it was common ground that the Note was prepared by Colin and it reflects Colin’s testamentary intentions. That is, it was common ground that Colin did not intend to leave the majority of his estate to Ronald.
The primary judge found that the Note did not deal with all of the assets held by Colin. His Honour concluded that this was an important step in his conclusion that the Note was a draft will only that would ultimately be forwarded on to Mr Dawson who would 'finalise' it and fill in the missing details.
Ultimately, the view of the primary judge was that the Note had elements pointing both for and against the existence of the requisite intention. I will return to those matters when considering the disposition of the appeal. The primary judge regarded it as important to have regard to the wider context in which the document was created.
In relation to the wider context, there were two matters his Honour identified as favouring the conclusion that Colin had the requisite intention when creating the Note:
First, that the Note was prepared shortly after Colin’s near-death experience which occurred in the early hours of 4 August leading to a conversation with Mr Wheatley that same morning in which Mr Wheatley told Colin to make a will; and
Secondly, Colin said to Ms Jones on 11 August ‘I have finalised my will and I decided to leave a small percentage to my brother Ron…’.
- The trial judge erred in finding that the deceased did not intend the entry on his mobile phone, dated 5 August 2022, headed "Last Will of Colin L Peek” to form his last will.
- The trial judge erred in not admitting the said document to probate.
- The trial judge erred in allowing extraneous or irrelevant matters to guide or affect his decision making process, particularly:
(a) The testator had opportunities after creating the subject document to make a formal will but did not take advantage of the opportunities or had opportunities to confirm the existence of the document but did not do so (J 41, J 42).
(b) Peter Dawson, a potential beneficiary under the document acted as solicitor for the appellant (J 58) and was a witness and this affected the probative value of the evidence of all the appellants witnesses (J 68, J 70, J 166).
(c) The telephone communications involving the deceased on 5 August 2022 (J 78).
(d) The absence of phone messages and emails (J 80, J 88, J 89, J 165, J 166).
(e) The failure of the appellant to give evidence of a text message from the deceased on 5 August 2022 (J 90, J 160, J 164).
6 How should a will be executed?
(1) A will is not valid unless--
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?
(1) This section applies to a document, or part of a document, that--
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms--
(a) the deceased person’s will--if the Court is satisfied that the person intended it to form his or her will, or
...
(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to--
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).
…
The relevant law was not in contest. I am prepared to proceed on the basis that Hatsatouris v Hatsatouris [2001] NSWSC 408 correctly identifies three elements that need to be satisfied in order for something to be considered a will despite it not adhering to the required formalities set out in Div 2 ss 6 and 7 of the Succession Act. Although Hatsatouris itself considered a provision in the Wills, Probate and Administration Act 1898 (NSW) s 18A, the predecessor to s 8 of the Succession Act, that formulation has been applied to s 8 of the Succession Act: see Burge v Burge [2015] NSWCA 289 at [51] and K**emp v Findlay (quoted at [13] above).
Although nothing turns on it in the present case, there is much to be said for the remarks of Hallen J in Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371 that care should be taken that shorthand verbal formulations such as that in Kemp v Findlay extracted at [13] above do not distract for the statutory task:
[95] In my view, the use of the words “without more on her, or his, part”, where used in other cases, does not really add anything. What the words do is direct attention to a consideration of the particular document itself, which must purport to “state the testamentary intentions of the deceased person”, and then determine whether the court is satisfied that the deceased person intended that particular document to form his, or her, will, or to form an alteration to his, or her, will. Thus, the focus of the section is on the actual testamentary intention of the deceased so far as it relates to the particular document in question.
The critical question on this appeal is whether Colin intended the Note to form his will within the meaning of s 8(2)(a) of the Succession 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, Mr Dawson.
I have come to a different conclusion to the primary judge about this question. Colin intended the Note, without more on his part, to have “present operation as a will”. In reaching this conclusion I am heavily influenced by the clear terms of the Note itself.
The Note is written with finality and formality. The emboldened heading of the Note, “Last W****ill of Colin L Peek”, is an initial powerful indication that Colin intended that the Note operate as his will ‘without more’.
The heading and text of the Note are not ambiguous. So much was conceded in oral submissions by Mr Chapple SC, Senior Counsel for Ronald:
BELL CJ: What's ambiguous about the document?
CHAPPLE: The document itself is not ambiguous.
The Note is dated. As was said in Re the Estate of Kiepas (dec’d); Twemlow v Kiepas [2004] NSWSC 452 at [31] by Campbell J, “dating is often an indication that the document is in its final form and intended to be operative”. Dating the document tends against a conclusion that the Note was only a draft will or a set of instructions and in favour of a conclusion that it was a document in its final form and that it was intended by Colin to operate as his will ‘without more’.
The abbreviated initials ‘CP’ at the end of the Note were found by the trial judge to meet the criteria for a signature for the purposes of s 6 of the Succession Act*.* His Honour was correct so to conclude. I do not agree, however, that Colin’s affixing his signature to the Note was “equally consistent” with the document being a mere statement of testamentary intentions. Colin’s signature on the Note was plainly a mark of assent. The placing of Colin’s signature on the Note made it more than simply a note to himself and provides a further indication that the Note is in its final form and that it was intended by Colin to operate as his will ‘without more’.
An important factor in the primary judge’s determination that the Note was a draft will or set of instructions was his Honour's finding that there was a lacuna regarding important assets held by Colin. This was an important step in his Honour’s conclusion that the Note was draft will only and that it would ultimately be forwarded on to Mr Dawson who would 'finalise' it and fill in the missing details. I have come to a different conclusion. The Note dealt with Colin's assets in the following way:
Mr Wheatley was appointed executor and directed to pay funeral expenses from the estate;
The various motor vehicles were the subject of specific gifts;
Colin’s house and its contents was to pass to Mr Wheatley;
Colin’s accounts were the subject of specific gifts to Ms Jones and percentages applied to Ronald, Mr Jones, Mr Smith and Mr Dawson with the residue to Mr Wheatley;
Any remaining joint venture dividends were to be paid to Mr Wheatley;
A significant loan to a Mr Jones was forgiven; and
The Note concluded “No one else gets a thing.”
The primary judge found that the value of Colin’s estate was:
[48] According to the affidavit of the executor sworn 2 February 2023, the gross value of Colin’s estate is approximately $13,643,074.14. It comprises approximately $6.2 million cash in an ANZ bank account; $5.6 million worth of ‘shares’ in Peek Property Pty Ltd, Peek Investment Trust and CL Peek Pty Ltd; a loan to A and J Jones of $1.4 million; and four luxury cars with a combined value of $450,000. The liabilities of the estate (which the executor was aware of at the time he swore his affidavit) were small amounts owed to contractors, including approximately $8,000 owed for electrical works, $6,000 for house repairs, $4,000 for waterproofing and $500 to Ms Jones for cleaning.
[49] After deducting liabilities, the net value of the estate is around $13,623,327.14.
[152] …There are several significant assets which are not mentioned, being his interests in the companies and trust referred to at [48] above. He cannot have failed to recall these assets as he had been involved in a joint venture with Allam Homes since 2014 with regular meetings with representatives of Allam Homes in that period. In other words, there is a lacuna which suggests, when read with (2) above, that it is intended as a draft document that would ultimately be forwarded to Mr Dawson for the purpose of him preparing the will, for which he would receive 5% (for ‘handling of CP will-no fuck ups’).
Peek Properties Pty Ltd was the company that owned the Bella Vista Waters property that was Colin’s home. The Bella Vista Waters home was the subject of a specific gift to Mr Wheatley in the Note. CL Peek Pty Ltd, Peek Property Pty Ltd and the Peek Investment Trust were collectively estimated to be valued at $6,122,882 in the Inventory of Property. Property valuations over time, which were in evidence below, establish that the value of the Bella Vista Waters home was $6,200,000 in May 2022. It is tolerably clear that the Bella Vista Waters property comprised the total value of Colin’s assets listed in the Inventory of Property. To the extent that any distributions were still to be made from the property joint venture Colin had participated in, those distributions were the subject of a specific gift to Mr Wheatley in the Note.
Accordingly, I respectfully disagree with the primary judge that there are any “significant assets” which are not mentioned in the Note. Senior Counsel for Ronald ultimately accepted as much:
BELL CJ: So what can [the Note] dispose of?
CHAPPLE: We say it didn't dispose of the shares in Peek Properties Pty Ltd, we say it didn't dispose of the interest in the Peek Investment Trust, and we say it didn't dispose of the shares in CLP Pty Ltd.
BELL CJ: Well, it did dispose of the house.
CHAPPLE: It did dispose of the house.
BELL CJ: And there's evidence … that reference to 6.2 million… is that reference to the property or not?
CHAPPLE: I think it must be a reference to the property…
BELL CJ: Which broadly accords with the value placed on the shares and the trust …
[…]
CHAPPLE: I accept that, your Honour. What we would say, though, is that the failure to specifically identify the interest in the two companies and the interest in the trust demonstrates a person going through in a broad brush approach and listing his assets and who he wants to have them, which is consistent with a document that he's preparing to ultimately send to his solicitor, who is going to put it in a formal document with no fuck ups…
It was plainly understood by Colin, an experienced businessman, that he was dealing with all of his assets in the Note. So much is clear from the emphatic last sentence of the Note “No one else gets a thing”. A clearer indication that Colin understood he had dealt with all of his assets is hard to imagine. Rather than being a factor tending against a finding that Colin intended the document immediately to be operative I have concluded that Colin’s clear understanding that the Note disposes of all of his “significant assets” provides at least some support for the appellant's case.
I have concluded that the terms of the Note point strongly in favour of a conclusion that Colin intended that the Note operate as his will 'without more'.
Perhaps the most important matter the primary judge found persuasive against acceptance of the conclusion that Colin intended the Note should, without more, operate as his will were the findings made about Mr Dawson and to a lesser extent Mr Wheatley’s conduct.
I share the concerns of the primary judge about the conduct of Mr Dawson. Upon close analysis, however, I do not think that Mr Dawson’s conduct has any material impact on any relevant question on this appeal. Concerns about the provenance of the Note were obviously potentially important at the trial. It is now clear, however, that Colin was the author of the Note and that Mr Dawson and Mr Wheatley had no role whatever in the creation of the Note. It is equally clear that the Note reflected Colin’s testamentary intentions and that he was not influenced in forming those intentions by either Mr Dawson or Mr Wheatley. Finally, it is pellucidly clear that Mr Dawson and Mr Wheatley had no idea prior to Colin’s death that the Note existed. It was common ground (indeed it was important to Ronald’s case) that Colin had not discussed the Note or the making of a will with Mr Dawson after 21 July 2022.
Perhaps the most significant concern expressed by the primary judge about Mr Dawson’s conduct concerned his apparent curating of Colin’s iPhone after he died by deleting messages and other documents. I share those concerns. I have decided, however, that those concerns should not affect the outcome of this case. This is because it was and is common ground that the Note represents Colin’s true testamentary intentions. If there were any suggestion that Mr Dawson or Mr Wheatley had destroyed evidence that might throw light on Colin’s true testamentary intentions, I would have been in favour of dismissing the appeal. There was no such suggestion.
Equally, if there had been any rational basis to infer that the deleted communications concerned the possibility of giving Mr Dawson (or anybody else) instructions to draw a will, I would have been in favour of dismissing the appeal. There was no basis for such an inference. All of the evidence pointed to a conclusion that Colin never told anybody about the Note and did not intend to give Mr Dawson (or anybody else) instructions to draw a will.
Respectfully, the inferences drawn by the primary judge against Mr Dawson and Mr Wheatley went too far. In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, Heydon, Crennan and Bell JJ said the following:
[63] The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue.
[…]
[64] The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party… Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth. There is a reason why failure to call a witness or failure to ask a particular question of a witness supports the possible inference that the witness's evidence would not have assisted the party, while failure of a party-witness to tell the whole truth may support an inference that the party suppressed evidence which would have been damaging to the party-witness. A litigant has no duty to call particular witnesses or to procure that any witnesses called by that litigant are asked particular questions. A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked.
(citations omitted)
[161] As is well established, Jones v Dunkel cannot be used to draw a positive inference if the evidence does not otherwise admit of a rationally drawn inference: see eg Galea v Bagtrans Pty Ltd [2010] NSWCA 350 at [2] (Allsop P, Macfarlan JA agreeing). It does not permit a court to infer that the uncalled evidence would have been positively damaging to a party’s case, nor does it supply missing gaps in the evidence: RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 at [161] (Ward JA, as her Honour then was, Basten and Meagher JJA agreeing).
Ronald’s case was predicated on the proposition that Mr Dawson and Mr Wheatley knew nothing of the Note before Colin’s death. It was common ground that Colin had not spoken to Mr Dawson about making a will at any time after 21 July 2022. Although the appellant sought, by Notice of Motion dated 26 August 2025, to introduce further evidence about the text message from the deceased on 5 August 2022, I am not satisfied that a proper basis has been shown to admit that evidence. The Notice of Motion should be dismissed.
Exercising this Court's rehearing function pursuant to s 75A of the Supreme Court Act 1970 (NSW), there is no basis to suspect that the telephone communications involving Colin on 5 August 2022 touched or concerned the Note, and the question of whether Colin intended, without more, for the Note to form his will or represent his testamentary intentions more generally. All of the evidence in the case tends against drawing a conclusion that any of those matters were discussed. The text message from Colin on 5 August 2022 was likely a missed call notification, given the call that immediately preceded it was 5 seconds in length. In any event, there is no basis to find that any text touched or concerned the Note, nor whether Colin intended, without more, for the Note to have present operation as a will.
As to the deleted texts and emails, the suggestion that there was something said or written on the iPhone by Colin about the Note or his testamentary intentions does not rise above a guess or conjecture. To infer that something was said or written by Colin about the Note or his testamentary intentions more generally in the uncalled evidence would be, impermissibly, to supply missing gaps in the evidence.
Despite Mr Dawson’s conduct, there is no basis to infer in this case that any evidence was supressed or deleted by Mr Dawson or Mr Wheatley about the only relevant question, namely, whether Colin intended the Note, without more on his part, to have present operation as a will.
The overall context of the creation of the Note was Colin’s near-death experience immediately prior to its creation. The primary judge found the context to be of no particular assistance one way or the other. I do not agree. Colin drafted the Note following a medical emergency. His failure to send the Note to others is consistent with his demonstrated reluctance to engage in discussions about his will. Mr Dawson often ‘badgered’ Colin to make a will but that the deceased “continued to avoid the topic”. Colin’s near-death experience in the early hours of 4 August 2022 was obviously the catalyst that prompted the making of the Note. In the early hours of 4 August Mr Wheatley strongly urged Colin to make a will. The context of this conversation was far more immediate and dramatic than the conversation between Colin and Mr Dawson on 21 July 2022. The central question, given this context, remains Colin’s intentions about the Note.
The principal inference I draw is that whatever Colin’s intentions on 21 July 2022 about giving instructions to Mr Dawson to make a will, the near-death experience on 3-4 August 2022 profoundly affected Colin. I am not persuaded that the evidence that on 21 July 2022 Colin intended to see his solicitor, Mr Dawson, for the purpose of making his will, was particularly significant. The primary judge inferred that if Colin had changed his mind after 21 July 2022 about giving Mr Dawson instructions it would be expected that he would have told Mr Dawson about it, but did not. In my view, Colin’s lack of communication with Mr Dawson about the creation of the Note is at least equally consistent with Colin having determined that, following the trauma of 3-4 August 2022, he had written out his testamentary intentions and that he intended the Note, without more on his part, to have present operation as a will.
I have concluded that, on balance, the extrinsic evidence also supports a conclusion that Colin intended the Note, without more on his part, to have present operation as a will.
The most important piece of evidence was given by Ms Jones. Colin told Ms Jones he had finalised his will. That was an unequivocal representation that, in Colin’s mind, the Note was in its final form. The statement “I have finalised my will” was unambiguous. Its use of the past tense indicates an action already undertaken. “Finalised”, by definition, is “to put into final form; conclude, settle” to adopt the ordinary meaning.
If, as was submitted by Ronald, Colin had simply finalised a draft he intended to send to Mr Dawson, his unequivocal statement to Ms Jones is puzzling. The evidence of Ms Jones, accepted by the primary judge, was that Colin was candid in his conversations with her. The more probable conclusion is that Colin was telling Ms Jones that, in his mind, he had finalised his will, not that he had finalised a draft of instructions to be sent to Mr Dawson. This supports the conclusion that Colin intended the Note, without more on his part, to have present operation as a will.
The second important piece of extrinsic evidence was the conversation Colin had with Mr Wheatley on 13 August 2022 in which Colin strongly dissuaded Mr Wheatley from buying a small apartment:
[Mr Wheatley]: "So earlier today I went and had a look at that one bedroom apartment near the Full Throttle Shop where we picked up your Bentley".
[Colin]: "What, the small one you showed me the photos of during the week, the one without any garaging?"
[Mr Wheatley]: "Yeah, that one."
[Colin]: "I told you not to bother yet, that you should just wait."
[Mr Wheatley]: "Yeah I know but I didn't see the harm in walking through it though, just to see what it was like and what you get for $950K."
[Colin]: "Well I told you to wait, then you can buy a three bedroom with two bathrooms, a bigger living room and a 2 car garage in the same building. You don't listen. When I tell you to do something, you bloody well do it, do you understand?"
[Mr Wheatley]: "Well yes I do understand and I did listen but I was curious. I didn't see the harm in looking, that's all. Um ... three bedrooms and two car garaging? Mate, did I win the lottery and nobody remembered to tell me I'd hit the jackpot?"
[Colin]: "Something like that fuckwit. You won the lottery the day you met me! Now just do what I say, wait and do nothing else on that one bedroom place. Just trust me and do what I'm telling you. OK?
[Mr Wheatley]: (somewhat confused)… OK then, I don't quite understand where you're coming from but OK, I won't enquire any further. If she calls me I'll tell her I'm no longer interested in a one bedroom without parking."
[Colin]: "Good. You know what I've told you about brains in statues! Now tell me what happened with that plumber that stuffed up the gas pipework.”
This is an important piece of extrinsic evidence. The plain implication from the words in that conversation, including “You won the lottery the day you met me” and “Well I told you to wait, then you can buy a three bedroom with two bathrooms”, was that Mr Wheatley should not buy a smaller apartment now because he would be coming into sufficient funds soon to buy something bigger.
The primary judge found “had Colin really meant that he had made his will, it would be expected that he would have told Mr Dawson and Mr Wheatley” and that when “Colin met with Mr Wheatley on 13 August … it is surprising that he did not tell him on that day that he had made his will and where it would be found”.
I do not draw the same inference. Whilst I accept that publication of an informal document will often be important evidence of the fact that a testator intends that the document, without more, will be operative as a will, 'publication', is not a required element of an informal will under the Succession Act. Colin plainly struggled with talking about his own mortality, even in the face of a near-death experience a few days earlier. In the conversation on 13 August 2022 Colin essentially told Mr Wheatley that he would shortly receive a significant amount of money. This is extrinsic evidence consistent with a conclusion that Colin intended the Note, without more on his part, to have present operation as a will. If by 13 August 2022, Colin did not intend the Note, without more on his part, to have present operation as a will, it was obviously urgent that he contact Mr Dawson, lest he risk dying intestate. Colin knew that a valid will was a precondition to ensuring that Mr Wheatley would inherit the bulk of his estate and Ronald’s family would not. Evidence given by Ms Jones makes that clear. Colin’s conversation with Mr Wheatley supports the conclusion that Colin intended the Note, without more on his part, to have present operation as a will.
The final matter of significance is the direction in the Note that “P Dawson to get 5% for handling of CP will-no fuck ups”. The primary judge found that this was consistent with the way Colin gave instructions to Mr Dawson when requesting that he undertake legal work for him. His Honour inferred that “handling of CP will” meant Mr Dawson would draft Colin’s will as opposed to administer Colin’s estate. I have drawn a different inference. In context the reference to “no fuck ups” is likely a long standing joke between Colin and Mr Dawson. The real question is what meaning is to be attributed to Mr Dawson’s “handling of CP will”. In context, the reference to “CP will” is likely a reference to the Note itself. That is more consistent with a direction to his executor Mr Wheatley and his long standing solicitor Mr Dawson to conduct the administration of the estate. Although not a powerful factor, it is nevertheless one that tends in favour of a conclusion that Colin intended the Note, without more on his part, to have present operation as a will.
For the foregoing reasons I have concluded that the deceased, Colin Laurence Peek, intended that the Note found on his iPhone, without more on his part, was to have present operation as his will at the time that he died on 16 August 2022 and that it satisfies the criteria for a valid informal will set out in s 8 of the Succession Act.
I propose the following orders:
Dismiss the appellants Notice of Motion dated 26 August 2025.
Appeal allowed.
Set aside the orders made by the primary judge on 30 May 2025 and 22 September 2025 and in lieu thereof order:
(a) Plaintiff’s Statement of Claim dated 19 May 2023 dismissed. (b) Probate of the informal will dated 5 August 2022 and titled "Last Will of Colin L Peek" be granted to Brad Anthony Wheatley, the executor named therein. (c) The proceedings be referred to the Senior Deputy Registrar in Probate to complete the grant. (d) That Brad Anthony Wheatley be entitled to an indemnity with respect to his costs out of the Estate.
(4) Notes the agreement between the parties that there be no order as to costs between them of the trial and of the appeal.
**********
Corrected solicitors
Pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ‘UCPR’ the Court:
• Updated case cited Etherton v Mitchelmore [2024] NSWSC 17 to Etherton v Mitchelmore [2024] NSWSC 170. • rtf text added to image at [3].
Wheatley
Peek [2025] NSWCA 265
(2011) 243 CLR 361
(1994) 33 NSWLR 446
The Notice of Motion dated 26 August 2025 was dismissed and the appeal was allowed. The primary orders were set aside, Ronald’s Statement of Claim was dismissed, and probate of the informal will dated 5 August 2022 and titled “Last Will of Colin L Peek” was ordered to be granted to Brad Anthony Wheatley. The proceedings were referred to the Senior Deputy Registrar in Probate to complete the grant. The 11 December 2025 amendment recorded no order as to costs between the parties for the trial and appeal, ordered an indemnity for Wheatley’s costs out of the estate, and removed the earlier costs wording from the order dismissing the claim.
Mr Wheatley had a discussion with Colin in the early hours of that morning, at approximately 3:30 am, after the paramedics had left:
The primary judge did not regard the first of these matters as of particular assistance, because Colin had earlier met with Mr Dawson on 21 July 2022 and had a discussion about making a will in which he said, twice, ‘I’ll write it down and send it through in the next week or so’. The inference the primary judge drew from this conversation was that the Note contained instructions to be sent to Mr Dawson. If Colin had changed his mind and decided that the Note would operate as Colin’s will, the primary judge expected that Colin would have told Mr Dawson of this by phone, text or email, which he did not do.
The second matter from the wider context was the statement Colin made to Ms Jones on 11 August 2022 that ‘I have finalised my will’. The primary judge considered that the statement was ambiguous. His Honour noted that the ordinary and natural meaning of the word ‘finalise’ is ‘to put into final form, conclude, settle’ (Macquarie Dictionary, 3rd ed, 1997) and ‘complete or agree on a finished or definitive version of (something)’ (Oxford English Dictionary, online ed, accessed May 2025). His Honour found that Colin saying that he had ‘put his will into final form’ or ‘agreed on a definitive version of his will’ was consistent with the Note being a record of what Colin had decided to tell Mr Dawson to include in his will. His Honour concluded that the Note was not intended to constitute, without more, Colin’s will.
In conclusion, the primary judge emphasised the onus of proof. Mr Wheatley bore the onus of proof on the question of whether Colin had the requisite intention when the Note was created or at any time until the time of his death. The primary judge found two matters to be persuasive in answering that question. The first was that Colin sent an SMS text to Mr Wheatley on 5 August 2022, but Mr Wheatley failed to give evidence as to what was in that SMS text. Secondly, Colin made several telephone calls to Mr Dawson’s office on 5 August 2022 including one at 3:37 pm lasting for 4 minutes, but the person in Mr Dawson’s office who received the call did not give evidence about it. His Honour found that there was no evidence to suggest that there were any outstanding issues to discuss regarding Colin’s insurance claim which had been the original purpose of a meeting on 21 July 2022 where he had met and discussed his will with Mr Dawson.
There were three further matters which raised a concern in the mind of the primary judge regarding whether the Court had the full picture as to the contents of Colin’s iPhone.
First, while Colin’s iPhone was in the possession of either Mr Dawson or Mr Wheatley, from 19 August 2022, text messages and emails had been deleted from it which raised “a concern about the integrity of the main piece of evidence". Secondly, the way the evidence came out at the hearing suggested that the Court could not be confident that it had all the relevant communications by the deceased with Mr Dawson and Mr Wheatley regarding the purpose of the Note. Finally, there was a significant difficulty in the Court accepting the reliability of the evidence of Mr Dawson when he acted as a solicitor in the proceedings and prepared all the evidence for the appellant despite his conflict of interest and duty to the Court.
The primary judge was not satisfied “that Colin intended the Note, without more on his part, to have present operation as his will”. Accordingly, Ronald was entitled to the relief sought in the statement of claim and the cross-claim was dismissed.