Peek v Wheatley

Case [2025] NSWSC 554


Supreme Court


New South Wales

Medium Neutral Citation: Peek v Wheatley [2025] NSWSC 554
Hearing dates: 28–30 October 2024
Date of orders: 30 May 2025
Decision date: 30 May 2025
Jurisdiction: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

Legislation Cited:

Evidence Act 1995 (NSW)

Interpretation Act 1987 (NSW)

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

Professional Conduct and Practice Rules 1995 (NSW)

Succession Act 2006 (NSW)

Wills, Probate and Administration Act 1898 (NSW)

Cases Cited:

Australian Securities and Investments Commission v Rich [2009] NSWSC 1229

Barrak Corporation Pty Ltd v Kara Group of Companies Pty Ltd [2014] NSWCA 395

Bell v Crewes [2011] NSWSC 1159

Blatch v Archer (1774) 1 Cowp 63

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Campton v Hedges [2016] NSWSC 201

Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88

Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110

Etherton v Mitchelmore [2024] NSWSC 170

Fast v Rockman [2013] VSC 18

Hatsatouris v Hatsatouris [2001] NSWCA 408

Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kemp v Findlay [2024] NSWSC 902

Kemp v Findlay [2025] NSWCA 46

Mahlo v Hehir [2011] QSC 243

Mitchell v Burrell [2008] NSWSC 772

Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371

Public Trustee v Commins; The Estate of Gwendolyn Myrtle Wray (Supreme Court (NSW), Powell J, 19 June 1992)

Re Application of Tristram [2012] NSWSC 657

Re Blewitt (1880) 5 PD 116

Rodny v Weisbord (2020) 102 NSWLR 403; [2020] NSWCA 22

Shalhoub v Buchanan [2004] NSWSC 99

The Estate of James Phillips (Supreme Court (NSW), Needham AJ, 9 September 1990)

The Estate of Masters(Deceased); Hill v Plummer (1994) 33 NSWLR 446

Wood v Smith [1993] Ch 90

Texts Cited:

Macquarie Dictionary, 3rd ed, 1997

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

  1. 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).

  2. The informal document is entitled ‘Last Will of Colin L. Peek’ and is set out at [34] below…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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