Risks of Informal, ‘e-Wills’ for Estate Planning
Article by Claire Wilson
TRIGGER WARNINGS: SUICIDE, SUICIDAL IDEATIONS
In the digital age, where smartphones are an integral part of our lives, it is not uncommon for individuals to use their devices for tasks traditionally reserved for formal documentation. One such emerging trend is the creation of “iPhone Wills”—testamentary intentions recorded in smartphone apps, notes, or even audio and video recordings. While these methods may seem convenient, they can pose significant risks to your estate planning.
The formal requirements of a legally valid Will include that it must be in writing, signed by the testator in front of two witnesses, and also signed by the two witnesses.
However, section 18 of the Succession Act 1981 (Qld) (the Act) enables the Supreme Court of Queensland to dispense of certain formal requirements in particular circumstances. This provision essentially recognises that people can express their final wishes outside of traditional legal presentations. They are known as informal Wills, and can occur in many formats, from handwritten notes to digital messages.
Recent case law highlights the pitfalls of relying on informal Wills and underscores the importance of proper legal processes.
Case Study: Estate of Carrigan [2018] QSC 206
The Estate of Carrigan demonstrates how informal Wills can sometimes be upheld. Mr Carrigan, who tragically died by suicide, left audio recordings detailing his testamentary intentions. These recordings included a voicemail and a tape-recorded message specifying the distribution of his estate, which was valued in excess of $1.6 million. The court found that the recordings satisfied the three factual conditions required for a document to constitute a Will: (1) that there was a document, (2) the document embodied testamentary intentions, and crucially, (3) that the deceased intended the document to operate as his last Will.
Case Study: Estate of Leslie Wayne Quinn [2019] QSC 99
Similarly, the Estate of Quinn involved a video-recorded Will created four years before the deceased’s death. Despite the informal nature of the recording, the court was satisfied that it constituted a valid Will. The deceased had testamentary capacity and intended the video to operate as his Will.
Case Study: Peek v Wheatley [2025] NSWSC 554
In contrast, the very recent case of Peek v Wheatley serves as a stark reminder of the limitations of informal Wills. Mr Peek recorded his testamentary intentions in the notes app of his iPhone following a near-death experience. His multi-million dollar Estate was primarily left to his friend, Mr Wheatley, with smaller portions allocated to his brother and solicitor. Upon Mr Peek’s death, a number of months after the note’s creation, the document’s authenticity and testamentary intention were satisfied, however, the court was not satisfied that Mr Peek intended the note to have present operation as his Will.
The wording suggested that the note was a step towards creating a formal Will, rather than a final testament. Consequently, the court granted letters of administration for an intestate estate, leaving the distribution of assets to statutory rules rather than Peek’s expressed wishes.
While cases like Carrigan and Quinn show that informal Wills can be upheld, they also highlight the uncertainty and legal challenges associated with such documents. Courts must carefully examine the deceased’s intentions, the wording of the document, witness evidence, and the circumstances surrounding its creation. This process can lead to delays, increased legal costs, and potential disputes among beneficiaries.
Moreover, informal Wills may fail to address complex estate planning needs, such as tax implications, trusts, or guardianship arrangements. They also risk being deemed invalid if the deceased’s intentions are unclear or if the document is considered a preliminary step rather than a final testament.
Conclusion: The Importance of Formal Estate Planning
The risks associated with informal Wills underscore the importance of formal estate planning. Engaging a qualified solicitor to draft a legally binding will ensures that your wishes are clearly articulated and protected. While technology offers convenience, it cannot replace the expertise and security provided by professional legal services. To safeguard your estate and minimise the risk of disputes, contact our office’s Estate Planning team to organise a consultation.
If you require any further information, have any specific questions or wish to discuss your Estate Planning with our friendly team, you can contact us by phone on 07 3397 9622 or visit our website to make an online enquiry.
The blog published by Spranklin McCartney Lawyers is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Spranklin McCartney Lawyers on any legal queries concerning a specific situation.
