Was a note on an iPhone a wealthy Sydneysider’s last will? A NSW court was asked to decide in a dispute involving a $13 million estate and a raft of potential beneficiaries, including the elder brother of convicted murderer Chris Dawson.
Peter Dawson, a Dural lawyer, stood to receive more than $300,000 from the estate of his long-time client, the late property developer Colin Peek, if the note was a will. Peek’s close friend Brad Wheatley, a real estate agent, would have received about $10 million.
Peter Dawson, the elder brother of Chris Dawson, stood to benefit under an iPhone note leaving him a share of a wealthy property developer’s estate.Credit: Jamie Brown, Kate Geraghty
The note, headed “Last Will of Colin L Peek”, was discovered on Peek’s iPhone three days after his death. Wheatley and Dawson found it at his home in Bella Vista Waters in Sydney’s Hills District.
But Peek’s brother Ronald, his only sibling, filed Supreme Court proceedings in a bid to claim the entire estate.
He argued his brother did not intend the iPhone note to operate as his will, and that Colin had died without a will on August 16, 2022, aged 79. On that basis, Ronald said he was entitled to the whole estate under NSW succession laws because his brother was not survived by his wife, son or parents.
Wheatley, who was referred to in the iPhone note as Colin’s executor, filed a cross-claim, seeking a declaration that “the informal will was valid and forms the will of the deceased”, Justice Mark Richmond said.
In his decision on Friday, Richmond found in favour of Colin’s brother. The judge said he was “not satisfied that Colin intended that the note, without more on his part, to have present operation as his will”.
“Under the terms of the note, the bulk of the deceased’s estate (approximately $10.3 million) will pass to Mr Wheatley, with a smaller gift (approximately $990,000) to the deceased’s brother.”
The note said Dawson would receive 5 per cent, which the judge said amounted to about $308,495, “for handling of CP will – no f--- ups”. The reference to “no f--- ups” appeared to be an in-joke.
Colin met Dawson in 1997 when the solicitor donated his legal services for a charity auction and the property developer was the successful bidder.
“When Colin engaged Mr Dawson on a conveyancing matter, Colin joked ‘I paid a lot for this, so no f--- ups’,” the judge said.
Dawson ultimately “acted for Colin on hundreds of occasions … and it became their ongoing joke that there would be ‘no f--- ups’. In 2001, Colin appointed Mr Dawson as his attorney pursuant to a power of attorney.”
The judge said the key issue in the inheritance fight was whether Wheatley “has discharged his onus in propounding the note as the deceased’s will”.
Colin’s brother successfully argued the court could not be satisfied that Colin intended the note, without more, to have immediate legal effect.
The note was created on August 4, 2022, after Colin had a near-death experience. He died 12 days later.
Wheatley, whom the court heard had free access to Colin’s home and visited regularly, gave evidence that Colin had said he regarded him “not only a mate but in so many ways you’re the son that I lost”. Colin’s son died in 1987.
The court heard evidence that Colin and his brother were very close but that he did not like Ronald’s family.
The judge said Dawson had a conflict of interest in acting for Wheatley in the proceedings when he was also a witness in the case and had a financial interest in the outcome, and that this created a “difficulty in … accepting the reliability” of Dawson’s evidence.
WHAT IS A VALID WILL?
- Under NSW law, a will is not valid unless it is in writing and signed by the will-maker, or another person in their presence and at their direction. That signature must be made, or acknowledged by the will-maker, in the presence of at least two witnesses.
- At least two of those witnesses must also attest and sign the will in the will-maker’s presence.
- However, a court may dispense with the formal requirements for making a will. An informal document is “the deceased person’s will … if the court is satisfied that the person intended it to form his or her will”. In this case, the court was not satisfied that intention had been established.
He said there was also “uncertainty as to whether the court has the full picture as to the contents of the phone at the time of Colin’s death” because there was evidence texts and emails had been deleted since his death.
Wheatley gave evidence that he “would have deleted spam” but not other texts or emails. The judge noted Colin sent a text to Wheatley on August 5, but Wheatley “failed to give evidence as to what was in that SMS text”.
Assessing the evidence, including the fact that Colin spoke to Wheatley and Dawson in the days before his death but did not tell them about the note, the judge was not satisfied Colin intended it to be his will as opposed to a preparatory step towards it.
He accepted the note recorded Colin’s intentions relating to his will, but this was not the same as intending it to be his will.
Dawson’s younger brother Chris was convicted in 2022 of murdering his wife Lynette in 1982 and sentenced to a maximum of 24 years in prison. The NSW Court of Appeal last year rejected Chris Dawson’s bid to overturn his conviction.
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