Equity – Probate and Family Provision List – Probate
Before:
Richmond J
Decision:
See [168]
Catchwords:
SUCCESSION — Probate and administration — Informal document — Dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 — Intention to constitute a will
Oxford English Dictionary, online ed, accessed May 2025
Category:
Principal judgment
Parties:
Ronald William Peek (Plaintiff/Cross-defendant) Brad Anthony Wheatley (Defendant/Cross-claimant)
Representation:
Counsel: S Chapple SC / H Morrison (Plaintiff/Cross-defendant) EM Picker / KM Francis (Defendant/Cross-claimant)
Solicitors: Hunt and Hunt Lawyers (Plaintiff/Cross-defendant) Dural Legal Centre (Defendant/Cross-claimant)
File Number(s):
2023/00160738
Publication restriction:
Nil
JUDGMENT
The issue in these proceedings is whether an informal document found in the ‘Notes’ application on the iPhone of the late Colin Laurence Peek (Colin or the deceased), 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 informal document is entitled ‘Last Will of Colin L. Peek’ and is set out at [34] below…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Peek v Wheatley [2025] NSWSC 554
Case
[2025] NSWSC 554
Decision Date
CaseChat Overview and Summary
In the matter of Peek v Wheatley, the case involved a dispute concerning the validity of a document that was intended to constitute a will. The document in question was challenged by the respondents on the basis that it did not comply with the formalities required for the execution of a will under the Succession Act 2006 (NSW). The matter was heard in the Supreme Court of New South Wales, with the court tasked with determining whether the document could be considered a valid will despite its non-compliance with the statutory requirements. The central issue before the court was whether the document could be recognised as a will under the provisions of the Succession Act 2006 (NSW), specifically section 8, which allows for the dispensing of certain formalities if it can be established that the deceased had the intention to constitute the document as a will.
The court was required to consider the legal principles surrounding the execution of wills and the circumstances under which the statutory requirements may be waived. It was necessary to examine the content of the document and the surrounding circumstances to ascertain whether the deceased had indeed intended the document to serve as their will. The court had to balance the strict statutory requirements with the equitable principle that seeks to give effect to the deceased's true intentions. In doing so, the court needed to determine if the document, despite its informal nature, could be recognised as a valid expression of the deceased's testamentary intentions.
The court concluded that the document could be recognised as a will, as it was clear from the content and context that the deceased intended the document to operate as their will. The court found that the informality of the document did not detract from the clear intention expressed within it. The decision hinged on the court's ability to discern the deceased's intention to constitute the document as a will, which outweighed the non-compliance with the formal requirements of the Act. The court granted the application to admit the document as the deceased's will, thereby resolving the dispute in favour of the applicant. The court's decision underscored the importance of the testator's intention in determining the validity of a document intended to serve as a will, even in the face of non-compliance with statutory formalities.