Can I put my super in my will?

In recent years, the rise of technology has made it easier than ever to create, store, and even amend important documents like wills. Many people assume they can simply jot down their wishes on their phone or leave a note in a digital app, believing this to be sufficient for estate planning. However, legal cases such as Peek v Wheatley [2025] NSWSC 554 highlight the dangers of informal, unprofessional will-making—especially when using a device like an iPhone. The Case at a Glance In Peek v Wheatley, the court examined whether a note found on the late Colin Peek’s iPhone could be considered a valid informal will under the NSW Succession Act 2006. The note, titled ‘Last Will of Colin L. Peek,’ was discovered after his death, and it appeared to specify how his estate should be distributed—primarily passing significant assets to a friend and executor, Mr Wheatley. However, the court faced the challenge of determining whether this digital note truly represented Colin’s testamentary intention—that is, whether it was his clear, deliberate wish to dispose of his estate as stated, with the intention for it to have immediate legal effect. When Will a Document Be Accepted as an Informal Will? In most Australian States, a document that does not meet the formal requirements of a will (such as being signed and witnessed) can sometimes still be accepted as a valid "informal will" if certain criteria are met. The key questions are: Did the deceased intend the document to operate as a will? Was the document clearly intended to dispose of the estate? Did the document demonstrate a genuine testamentary intention? In Peek v Wheatley, the court examined whether the note on the iPhone was created with the intention for it to serve as the deceased’s final testament. The court recognized that while the note contained the deceased’s wishes, it was unclear whether the document was intended to take effect, without more (that is without the will making doing anything else). It was possibly a “working document” or a ‘dry run’ that might be amended later by the will maker or simply a document that he intended to pass on to his solicitor to prepare a will based upon it. The Pitfalls of Informal, Digital Wills This case underscores why relying on informal methods—such as notes on a smartphone—is perilous: Lack of Formalities: A valid will typically requires signatures, witnesses, and clear language. Digital notes often lack these formalities, making their validity uncertain. Ambiguity of Intent: A casual note or message may not conclusively demonstrate the testator’s intention for the document to be their final will, especially if created in a moment of emotion or without legal advice. Potential for Disputes: Informal documents are more easily challenged, leading to costly and time-consuming court disputes, as seen in this case. Risk of Misinterpretation: Digital notes can be vague or incomplete, and their meaning can be misinterpreted, especially if they are not drafted with legal precision. Why You Should Have a Lawyer Prepare a Formal Will The Peek v Wheatley case exemplifies the importance of engaging a qualified lawyer to draft your will. A lawyer ensures that your testamentary wishes are clearly articulated, legally valid, and less susceptible to challenges. They will: Use precise language to avoid ambiguity Follow all legal formalities (signatures, witnesses) Provide advice on estate planning tailored to your circumstances Minimize the risk of intestacy or disputes after death Final Thoughts While it might seem convenient to jot down a quick note on your iPhone or leave a casual message, this approach is fraught with legal uncertainty. The law prefers formal, properly executed documents to ensure your wishes are respected and to minimize disputes among your loved ones.  If you want your estate to be distributed according to your wishes, consult a qualified estate planning lawyer. They will craft a robust, legally sound will that stands up in court and provides peace of mind for you and your family. Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalised estate planning assistance, please contact a qualified lawyer. Would you like me to help you draft a tailored legal will or provide further information?

The recent case of Diedler v Borowiec 2023 WASC 396 is perhaps a cautionary tale for those beneficiaries of a doubtful will. The Deceased made a will with the Public Trustee in 2018. At the time he has 97 years old. For all intents and purposes, when the will was prepared, the Deceased appeared to have capacity- he lived independently, drove his own car (!) and managed his own finances. He did not want his step son and his own daughter to benefit from his estate. Following a trial , a judge found that the Deceased suffered from delusions at the time he made the will including a belief that his daughter was a witch, was trying to poison him. That she was practising witchcraft and that she flew through his window and was stealing items form him. In fact there had been concerns about his mental health for a least five years prior to him making the will. Following his death, the Public Trustee obtained medical reports and came to the conclusion that the 2018 will was invalid. However, the beneficiaries of the 2018 will were not happy with that decision and decided to seek proof of it by issuing proceedings in solemn form in the Supreme Court of Western Australia. Having lost the case, the question arose as to who should pay the solicitors costs. The court found that, having regard to the medical evidence, it was unreasonable for the beneficiaries of the 2018 will to have sought to prove it. Several offers of settlement (‘Calderbank Offers’) had been made by the beneficiaries of an earlier (1981) will, all of which had been rejected. The court ordered that the Plaintiffs (the beneficiaries of the 2018 will) pay the Defendants costs on an indemnity basis. Those costs would no doubt be very substantial. Although the person seeking to propound the will may have a honest (bona fide) belief that the will is valid, the belief must also be reasonable. On the facts, with the available medical evidence, the court found that the belief was not reasonable and the Plaintiff should bear not only their own legal costs but also the Defendants. As a point of reference, in the Victorian case of O’Donoghue v Mussett [2008] VSC 63, the Plaintiff’s costs were $250,000 up to the third day of a trial. The Defendant’s costs would be similar, so it becomes a very expensive exercise and not on to be lightly undertaken. If you need advice concerning the validity of a will, contact us now.

Great care must be taken when drafting a will to cover the situation where you have assets in different countries. Generally speaking, if you make a will in Australia (or in any other country) it will deal with all of your estate wherever situated including land held in any country (such as, for example, in the UK or India). This would require, upon your death, for a grant of probate to be obtained in Australia to deal with the Australian assets and then for that grant to be ‘resealed’ in the other country to deal with the assets in that country. This is a straight forward process in countries that are "One of Her Majesty's Dominions" but may be more difficult in other countries that have different systems of law. There may be situations where it is preferable to have two wills, one for each country where the assets are held. For example, it may be appropriate to appoint an Australian executor to deal with the assets in Australia and a will appointing a UK executor to deal with the assets in the United Kingdom. Particular care should be taken when preparing such wills. We would recommend that only an experienced solicitor be engaged (in each country) and the solicitor preparing the second will should be given a copy of the will made in the other country. An example of what can go wrong can be seen in Sangha v Estate of Diljit Kaur Sangha 2022 EWHC 2157 Ch . There, the deceased had assets (about £35m worth) in both the UK and India and made a will in India in 2016 that had a (standard) revocation clause (to the effect “I hereby revoke all prior wills”). The question arose was did this revoke an earlier will made in the UK in 2007 that left all of the Deceased’s UK property to his second wife. In the event it was held (on appeal) that the Indian will made in 2016 did not revoke the earlier 2007 UK will. Such a situation could have been avoided altogether if the Indian will had expressly stated “I revoke all my previous wills including any will made by me dealing with my estate located outside of India” or (if that was not the intention) “I revoke all my previous wills except any will dealing solely with my estate in the United Kingdom’. If you need help preparing a will, please contact us on 08 9398 5533 .

Learn how ending a de facto relationship affects your will. Biddulph & Turley explain legal considerations and the importance of updating your estate plans.

“The making of home-made Wills can lead to problems. That statement is not a paid advertisement for the legal profession. It is a statement of fact. This case illustrates the point.” Per Master Sanderson Epps v Homer [2006] 290 The Background Mr and Mrs H. were married in 1986. Mr H. had three children from a previous marriage. Mrs H. had four children from a previous marriage. Mr H. got a will kit from a newsagency and drafted wills. What they wanted to achieve It appears that what Mr H and Mrs H wanted to achieve was: i) to give certain specific items to their respective children; ii) Mr H gave $15,000.00 to be divided between his children; iii) The remainder of their estate (‘the residue’) was to go to the survivor of them; iv) Upon the death of the survivor of them (that is when the last of them died) the residue was to be split 50% between Mr H’s children and 50% between Mrs H’s children. A perfectly straightforward and reasonable arrangement for blended families. What the will said After the arrangements described in (i) and (ii) above Mr H.’s will said: “BUT IN THE EVENT THAT MY WIFE …. AND MYSELF SHOULD PASS AWAY AT THE SAME TIME (emphasis added)….. I LEAVE ALL THAT PART OF MY ESTATE BEQUEATHED TO MY WIFE TO OUR CHILDREN, FIFTY PERCENT (50%) TO BE SHARED EQUALLY BETWEEN MY NATURAL CHILDREN, AS PREVIOUSLY NAMED, THE REMAINING FIFTY PERCENT (50%) TO MY STEP CHILDREN, TO BE SHARED EQUALLY” (between them). The Problem Mr H. died in 2004. Mrs H. had died in 1998 (six years before). They had not died “at the same time” as contemplated in the clause in the will. The question was, did the wording of the will have the effect that the residue of the estate would be split 50/50 in these circumstances? The court said no. The words used were unambiguous. Mr and Mrs H. had not passed away “at the same time”. There was a six year gap between their deaths. What Mr and Mr H had really meant to say was “If (my wife or husband) does not survive me to divide the residue of my estate equally between those of my children and my (wife or husband’s) children.” The unhappy or happy result (depending upon your point of view) The clause in the will failed. There was an intestacy of the part of the will dealing with the residue (which was most of the estate). According to the rules of intestacy, Mr H.’s children were entitled to all of the remainder of his estate and Mrs H’s children missed out- step children are not a person’s children unless they are legally adopted. This entry was posted in Uncategorized on February 19, 2016.

Understand the validity of unsigned wills in Australia. Learn when courts may accept them and the importance of proper execution for your estate.

Ten Most Common Mistakes Made with Wills and Estate Planning 1) Not having a will. If you don’t have a will, then you are leaving a problem behind for everyone. This applies even if you situation is ‘simple’ and doubly so if you die leaving a second wife or de facto and children from a previous marriage or relationship. Any will is better than no will. 2) Making your own will. It may be that you are able to make a simple will quite easily. However, if you are making a simple will, make sure you have a simple situation. A ‘blended family’ is never a simple situation. Nor is it simple if you own a business, have a farm (or other significant property). 3) Not understanding that your wishes can be over ridden by a Court. More specifically, this means not understanding that certain groups of people (spouses -including de facto spouses, children – including adult children that you are estranged from) are entitled to provision from your estate. It doesn’t matter that you have had little contact with your (now adult) children since you got a divorce (or for whatever other reason). What matters is that you make ‘adequate and proper’ provision for them. This is not what you decide is ‘adequate and proper’ but what a court thinks. 4) Thinking that you are not in a de facto relationship. It doesn’t matter what lengths you go to (keeping finances separate, keeping separate residences for Centrelink purposes etc). It doesn’t matter that YOU think you are not in a de facto relationship or even if you and your partner both think you are not in a de facto relationship. What matters is whether a court decides that you are in a de facto relationship. 5) Not understanding the difference between joint tenancy and tenants in common. Joint tenancy means that, when one co-owner dies, that persons interest in the property passes authomatically to the survivor. It doesn’t matter if the will says something different. Joint tenancy is great where it is intended that the property goes to the surviving spouse (as it means that no grant of probate is required). However, if there are children from a previous relationship that you wish to benefit, joint tenancy may mean they miss out. 6) Not understanding that Superannuation is not dealt with by your will. If you are a member of a public or industry fund, the trustee of the fund must pay any death benefit according to: a) any Binding death benefit made by you (this can only be to a spouse, a child who is financially dependent upon you or to your estate); b) A ‘financial dependent’. This includes a de facto (see point 4), children and persons who were otherwise financially dependent upon or in an “interdependency relationship” with the Deceased. It may or may not include step children (fact specific). There are many, many cases where the superannuation is paid to a ‘girlfriend’ (who no-one else believes is a de facto) and not to parents or siblings. A SMSF must also be dealt with by the terms of the Superannuation Deed (and not your will). 7) Not understanding that assets held in companies, trusts or partnership are not assets that can be dealt with by your will. 8) Leaving making your will too late If you make a will when you are very elderly or ill, you greatly increase the chance of a challenge on the grounds that you lacked testamentary capacity when you made the will. 9) Not keeping your will safe and where it can be found after you die. All too often the original will cannote be found after you have gone. 10) Thinking it is all too hard. See point 1. This entry was posted in Uncategorized on August 7, 2016.

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