Can an iPhone note really be a Will?

It may surprise you that something as unassuming as an iPhone note could have such significant consequences. Disputes concerning so-called “informal Wills” are however a rapidly growing area of litigation in the world of succession law.

According to a recent media report, Peter Dawson (the brother of Chris Dawson who was convicted in 2022 of murdering his wife, Lynette, over 40 years ago – a case made globally famous thanks to The Australian’s 2018 podcast “The Teacher’s Pet”) is embroiled in a legal dispute over the multi-million dollar estate of his late friend and former client, Colin Peek. The case concerns a digital document made in the notes app on Peek’s iPhone only days before his death, which is titled as a “last Will”.

Dawson, a solicitor, acts for another friend of Peek in the case, Brad Wheatley, who has applied to the NSW Supreme Court to have the iPhone note declared as Peek’s last Will. Wheatley stands to receive most of the estate if successful. Dawson is also named as a beneficiary in the document. Peek’s family are contesting the application, arguing that Peek did not intend the document to operate as a Will. A three-day trial was held in October, with the Court’s decision yet to be handed down.

What are the formal requirements for a Will?

In simple terms, a Will must be in writing and signed by the Will-maker in the presence of at least two witnesses who are present at the same time. The signature must be made with the intention of executing the Will. The witnesses must then attest and sign the Will in the Will-maker’s presence.

An “informal Will” is a Will that fails to meet one or more of those formal requirements. As in Peek’s case, that may be because the Will is not witnessed or not signed at all.

Can an informal document operate as a Will?

The Court has power in certain circumstances to dispense with the need for a document to comply with the formal requirements. This “dispensing power” enables the Court to declare that a document forms a person’s Will if the Court is satisfied that the person intended the document in question to form their Will. It is the intention that is key in these cases. The document must also purport to state the person’s testamentary intentions, meaning what they want to happen with their assets upon their death. The burden of proof lies on whoever seeks to propound the document in question as a Will.

What constitutes a “document” for this purpose is very broad and captures far more than just a classic piece of paper. Examples of what has been held to be a “document” in these types of cases include writing on a wall, an unsent text message, a DVD video recording and a note made on an iPhone.

The evidence must satisfy the Court that, either at the time of the document’s creation or at some later time, the deceased, by some act or words, demonstrated that it was their intention that the document should, without more on their part, operate as their Will. In the above case, Peek’s family argue that the requisite intention is lacking and that the iPhone note was merely a “working document”. It remains to be seen whether the Court agrees.

Could Peek’s iPhone note be found to be his Will?

In short – yes that is absolutely possible! We will continue to monitor the outcome of this case.

Implications

Creating documents of a “Will-like” nature, whether electronic or otherwise, can have significant consequences for the administration of a deceased estate, not least from a cost perspective. A professionally drafted Will that meets legal formalities is certainly a prudent investment to make for the sake of your intended beneficiaries. Conversely, it can often be advantageous that the law will recognise an informal document as a Will if it can be shown that the maker of the document intended it, without more, to operate as such.