Dispensing with the Requirements: Can I make a legally enforceable Will without lawyers?
Cutting corners on your Will might save you money now but could create significant costs and stress for your loved ones after death. The Supreme Court of NSW recently addressed whether an informal Will, specifically a note in the ‘Notes’ app on the iPhone of the late Mr Peek, could be admitted to probate as a valid Will under section 8 of the Succession Act 2006 (NSW) (‘the Act’).[1]
Legal Framework for Informal Wills
Section 6 of the Act sets out the formal requirements for a valid Will. However, section 8 allows the Court to dispense with these requirements and recognize a document as a Will, an alteration, or a revocation, even if it is informal, provided certain criteria are met.
Requirements for an Informal Will
For a document to be admitted as an informal Will under section 8 of the Act:
Document: There must be a ‘document’ as defined in section 3(1) of the Act and Schedule 4 of the Interpretation Act 1987 (NSW).
Testamentary Intentions: The document must state the deceased’s intentions regarding the disposition of their property upon death.
Intention for Will: The deceased must have intended the document to operate as their Will.
The Court may consider not only the document but also evidence about its creation, the deceased’s intentions, and any statements or conduct indicating that the document was meant to be their final Will.
Case Study: Peek v Wheatley [2025] NSWSC 554
In Peek v Wheatley, the plaintiff argued that Colin Peek died intestate and sought letters of administration. The defendant cross-claimed that the note on Mr Peek’s iPhone was a valid informal Will.
The Court found that although the note in the iPhone met the definition of a ‘document’ and purported to set out testamentary intentions, it was not satisfied that Mr Peek intended this note to operate as his Will.
While section 8 of the Act provides flexibility, most informal Wills fail because the necessary intention cannot be established. The process of proving an informal Will can be costly, time-consuming and stressful for those left behind. This underscores the importance of ensuring that your Will is formally executed and clearly reflects your testamentary intentions.
[1] Peek v Wheatley [2025] NSWSC 554
For further information regarding making your own will, please contact tim.lynch@beswicklynch.com
Disclaimer
The above does not constitute legal advice, but is information which may be of general interest. Beswick Lynch Lawyers will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.