Wheatley v Peek

1. [1]

   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.

2. [2]

   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).

3. [3]

   The Note is entitled ‘Last Will of Colin L. Peek’. It provided:

4. [4]

   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.

5. [5]

   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.

6. [6]

   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.

7. [7]

   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.

8. [8]

   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.

Decision of the primary judge

1. [9]

   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.

2. [10]

   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.

3. [11]

   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.

4. [12]

   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.

5. [13]

   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:

6. [14]

   The primary judge was ultimately not persuaded that the Note met this third requirement.

7. [15]

   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.

8. [16]

   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:

9. [17]

   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.

10. [18]

    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.

11. [19]

    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.

12. [20]

    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.

13. [21]

    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.

14. [22]

    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.

15. [23]

    Mr Wheatley had a discussion with Colin in the early hours of that morning, at approximately 3:30 am, after the paramedics had left:

16. [24]

    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.

17. [25]

    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:

    1. (1)

       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.

    2. (2)

       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.

    3. (3)

       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.

18. [26]

    In relation to the limited amount of data found on the iPhone, Mr Sobbi opined in his supplementary report as follows:

19. [27]

    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.

20. [28]

    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.

21. [29]

    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.

22. [30]

    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.

23. [31]

    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.

24. [32]

    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:

    1. (1)

       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

    2. (2)

       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…’.

25. [33]

    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.

26. [34]

    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.

27. [35]

    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.

28. [36]

    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.

29. [37]

    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.

30. [38]

    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.

Notice of appeal

1. [39]

   On 6 August 2025 a Notice of Appeal was filed containing the following grounds:

Principles applying to informal wills

1. [40]

   Section 6 of the Succession Act provides for how a will should be executed:

2. [41]

   Section 8 of the Succession Act outlines the circumstances when a Court may dispense with the formal requirements for making a will under s 6, and provides relevantly:

Consideration

1. [42]

   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 Kemp v Findlay (quoted at [13] above).

2. [43]

   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:

3. [44]

   The civil onus applies and is borne by the person asserting the validity of the informal document, in this case, Mr Wheatley: Etherton v Mitchelmore [2024] NSWSC 170 per Basten AJ. In determining this question the Court can, in addition to the document itself, have regard to any evidence of the manner in which the document was executed, any evidence of the testamentary intentions of the deceased, including evidence of statements made by the deceased, as well as any other matters relevant to that question: ss 8(3)(a) and (b) and 8(4) of the Succession Act. The relevant intention need not exist at the time of the document’s creation so long as the document was subsequently adopted by the deceased as his or her final will through words or conduct: Kemp v Findlay at [188].

4. [45]

   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.

5. [46]

   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.

6. [47]

   The Note is written with finality and formality. The emboldened heading of the Note, “Last Will of Colin L Peek”, is an initial powerful indication that Colin intended that the Note operate as his will ‘without more’.

7. [48]

   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:

8. [49]

   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’.

9. [50]

   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’.

10. [51]

    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:

    1. (1)

       Mr Wheatley was appointed executor and directed to pay funeral expenses from the estate;

    2. (2)

       The various motor vehicles were the subject of specific gifts;

    3. (3)

       Colin’s house and its contents was to pass to Mr Wheatley;

    4. (4)

       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;

    5. (5)

       Any remaining joint venture dividends were to be paid to Mr Wheatley;

    6. (6)

       A significant loan to a Mr Jones was forgiven; and

    7. (7)

       The Note concluded “No one else gets a thing.”

11. [52]

    The primary judge found that the value of Colin’s estate was:

12. [53]

    The primary judge also found that the Note did not deal with Colin’s interests in Peek Property Pty Ltd, Peek Investment Trust and CL Peek Pty Ltd:

13. [54]

    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.

14. [55]

    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:

15. [56]

    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.

16. [57]

    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'.

17. [58]

    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.

18. [59]

    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.

19. [60]

    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.

20. [61]

    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.

21. [62]

    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:

22. [63]

    The limitations of the principle were addressed in SSABR Pty Ltd v AMA Group Limited [2024] NSWCA 175 where Stern JA, with whom Ward P and Price AJA agreed, said the following:

23. [64]

    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.

24. [65]

    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.

25. [66]

    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.

26. [67]

    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.

27. [68]

    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.

28. [69]

    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.

29. [70]

    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.

30. [71]

    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.

31. [72]

    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.

32. [73]

    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:

33. [74]

    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.

34. [75]

    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”.

35. [76]

    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.

36. [77]

    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.

Conclusion and proposed orders

1. [78]

   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.

2. [79]

   I propose the following orders:

   1. (1)

      Dismiss the appellants Notice of Motion dated 26 August 2025.

   2. (2)

      Appeal allowed.

   3. (3)

      Set aside the orders made by the primary judge on 30 May 2025 and 22 September 2025 and in lieu thereof order:

3. [80]

   MITCHELMORE JA: I agree with Payne JA.