Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 21 March 2020.
Wendy makes a will with her solicitor.
Two days later, after considering her wishes further, Wendy makes a video recording with the assistance of her son, expressing her wishes to change some aspects of her will.
Wendy dies three months later.
Wendy’s children make an application for a grant of probate to the Supreme Court, which includes the written will and a transcript of the video.
To be valid, a will needs to be signed in front of two witnesses but the Court notes that’s it has the power to dispense with the formal requirements regarding the execution of a will if it is satisfied that a document was intended to form a will.
Of course, the video was not “executed” by Wendy signing a document but the Court rules that at law, a “document” can include a video.
The Court states that because Wendy’s son recorded her wishes, he is considered to be an “interested witness” and that his inheritance is void unless the Court is satisfied that Wendy “knew and approved” of the provision and that it was made freely and voluntarily.
After viewing the video, the Court finds that Wendy intended for her written will and the video to together form her last will and that the provisions regarding her son are valid.
Accordingly, a grant of probate is made.
However, the Court states that the making of a video will, in practice, presents an impediment to the Court ruling that it is in fact a statement of testamentary intentions and that the costs of satisfying the Court in this regard, may be an unnecessary burden on the will-maker’s estate.
The Court also notes that there is a heightened risk of litigation in relation to the potential uncertainty regarding the terms of a video will and states that it is not recommended.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
