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Making a Video Will

You’ve seen the movies – following the eccentric billionaire’s death, a video of their last wishes is played to an audience of (usually disappointed) relatives.

Making a video will – sounds like a good idea, right?

Instead of consulting a lawyer and making a written will, wouldn’t it just be easier to hit record on your iPhone and make a video selfie, expressing how you want to leave your estate, why you’ve chosen to exclude certain people, your preferred means of burial etc?

It may sound easier – but it won’t create a valid will.

For a will to be valid it must be in writing, with your signature witnessed by two people who are not named as executors or beneficiaries (otherwise those appointments will likely be deemed invalid).

In certain instances, the Court may dispense with the above formal requirement if a document that does not meet those requirement purports to state the deceased’s testamentary intentions, and the Court is satisfied the will-maker intended it to form their will.

However, for the Court to review such a case is usually very expensive and fraught with great risk that the Court dismisses the document completely.

In a recent case, a DVD recording was submitted to the Court as a “video will”, with an intention on the part of the speaker that it take effect as a will – Re Estate of Wai Fun Chan [2015] NSWSC 1107.

All of the beneficiaries, being children of the deceased, accepted the deceased’s wishes in the video will – none of them contested the will. It did not matter they accepted the terms of the will, as the video will did not meet the formal requirements, and the Court had to rule on whether the DVD formed the deceased’s valid will.

In a long and very detailed judgment, following what we presume to be moderately expensive litigation, the Court accepted the DVD formed a codicil to the deceased’s earlier made written will.

There were numerous factors that the Court considered before making the ruling – the testator said the date of the recording, expressed she was of clear and sound mind, with clear statements of her intentions. However, is it worth the risk? No presumption can be made that a video recording of a testator’s wishes will be accepted to form their “last will”.

All of the above could have been avoided if instead she made a valid, formal will to express her last testamentary wishes.

Although it appears “easier” for a will-maker to make a video will rather than to make a formally written will, the problem lies after death, when a will-maker’s survivors have need to probate the deceased’s last will. If the will is not on the face of it “valid” – that is, in writing, signed and witnessed, then the problems only just begin, and no one will be thanking the deceased for making a video will.

To make a valid Will to bypass such unnecessary and expensive probate obstacles, please call us today to discuss.

Turnbull Hill Lawyers, and specifically Adrian Corbould and Mary Windeyer, have been named in the prestigious 2018 Doyles Guide.


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