Section 8 of the Succession Act 2006 (NSW) involves three key requirements
- By Peter Allsopp
- May 25
- 2 min read
Section 8 of the Succession Act 2006 (NSW) involves three key requirements. Powell JA outlined a systematic approach in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56] to guarantee that the document aligns with the deceased’s true testamentary intentions.
A ‘document’ must first exist - defined by s 3(1) of the Succession Act; reference is made to the broad definition of a "document" under s21 of the Interpretation Act 1987 (NSW) including:
Physical records: Handwritten notes on paper, napkins, envelopes, or in diaries.
Digital files: Word documents, smartphone notes, or USB files.
Electronic communication: Emails and unsent texts.
Multimedia: Audio, video recordings, and DVD files.
Second, the document must express the deceased’s testamentary intentions. These are what they want to happen to their property after death. This obligation is as per s 8 (1) (a) of the Succession Act.
Third, the deceased must have intended for the document to serve as their Will provided under s 8(2)(a) of the Succession Act.
The process of determining that the document expresses the deceased’s testamentary intention requires the Court to:
Examine the document itself for clarity and finality.
Evaluate whether the deceased expressed definitive testamentary intentions that show the document’s finality as a Will.
Consider evidence of how the deceased executed the document.
Analyse any supporting declarations made by the deceased about their intentions.
Review any relevant communications between the deceased and others. These communications might clarify the deceased’s intent for the document to serve as a Will.
Lastly, the court assesses the overall context in which the deceased created the document, including the circumstances leading up to its creation.
Following the completion of this process, the Court determines whether the document reflects the testamentary intentions oo the deceased and can serve as the deceased’s Will.
The key issue in Wheatley v Peek [2025] NSWCA 265 is whether an informal document found in the ‘Notes’ application on the iPhone of the late Colin Laurence Peek (the deceased) satisfies the requirements of section 8 of the Succession Act 2006 (NSW).
The Court (Payne JA, Bell CJ and Mitchelmore JA agreeing) allowed the appeal, holding:
The evidence of the Note indicates that the deceased had the requisite testamentary intention that the Note should operate as his Will, without more, per s 8(2)(a) of the Succession Act. Kemp v Findlay [2025] NSWCA 46; Hatsatouris v Hatsatouris [2001] NSWCA 408
In particular:
(i) The Note was written by the deceased with finality and formality and was not ambiguous:
(ii) The Note was dated and signed:
(iii) The Note sufficiently dealt with the entirety of the deceased’s estate: [51]–[57].
Wheatley v Peek [2025] NSWCA 265 case summary link below
Authored by Peter Allsopp, Lawyer, Writer, Co-Founder at LexSolo
