Wills Should be Written not Video-recorded
We live in the technological age, but you should be careful about relying on technology to replace important documents such as Wills. The RMB Wills and Estates division explains.
With the increasing ease of access to video recording devices, many people choose to document and share their life through this medium – including recording their last Will and testament on video.
In a recent case, the Court highlighted the dangers of recording a video Will and issued a note of caution.
In this case, the deceased had executed a formal, written Will with her solicitor where her estate was to be split equally between her eight children. However, she decided to provide a greater share of her estate to two of her children in acknowledgment of the additional support they provided her.
Accordingly, two days later, conscious of her mortality, she sat in her kitchen and delivered her last words and testament to a camera.
To be a ‘valid Will’, a Will must be in writing and signed by the testator (the person making the Will) and witnessed by two witnesses. If the Will does not meet these requirements it is possible that it can be an ‘informal Will’ - defined as any document which states the testamentary intentions of the testator.
In this case, the Supreme Court of NSW concluded that the video was a document and admitted it as an informal codicil (legally binding amendment) to the valid Will. However, the Court highlighted the dangers of adopting such a casual approach to Will making, stating that:
‘the costs of satisfying the Court that [the necessary requirements have been made may be an unnecessary burden on the Will-maker’s deceased estate….. and the informality of expression that commonly characterises an oral statement may be productive of uncertainty as to the terms, or proper construction, of a video Will, with a consequential, heightened risk of litigation following the death of the Will-maker. On that account, a casual approach to recording testamentary intentions in a video Will is not recommended.’
Accordingly, it is not recommended to record a video Will as it does not satisfy the formal requirements for a Will under the Succession Act 2006 (NSW). There is also no certainty of a video Will being accepted by a Court, which may find it difficult to determine whether the deceased person was of sound mind or if they were under duress when the video Will was made.