In the age of technology, we have suddenly been granted an ease of access to video recording devices. Gone are the days where the bulky videocassette recorder was only brought out on special family occasions because it weighed about 2 kilos and could only record approximately an hour or so of footage. Now, almost everyone has access to video recording with a touch of a button from a device that sits comfortably in their pocket essentially 24/7.
In fact according to the latest research undertaken by IAB Australia, 67% of the Australian population in 2015 owned a smart phone with access to video technology. As a result, it is often asked whether a video message from a deceased can be considered a valid Will.
For a Will to be valid in Victoria, it typically needs to comply with the formalities of the Wills Act 1997 (Vic) (‘The Act’). Section 7 lists the formalities required, such as: The Will must be in writing and signed by the Will maker; a signature must be made with the Will maker’s intention to make the Will, and two witnesses must sign the Will in the presence of the Will maker.
However, in certain situations as stipulated in section 9 of the Act, the Supreme Court may dispense with the requirement for execution of Wills according to these formalities.
Section 9 of the Act allows a document which has not been executed in the manner in which a Will is required to be executed (eg in accordance with the formalities in section) to still be admitted to probate as the Will of the deceased, if the Court is satisfied that the person intended the document to be his or her Will.
Using a video recording rather than written Will is a very high risk strategy considering to be granted to probate, the court must determine that:
- The video purports to record the testamentary wishes of the testator (e.g is not a gift during the lifetime). I.e. it must clearly deal with a disposition of property in contemplation of death
- The video shows an intention, without anything more, to operate as a Will. I.e. it cannot suggest that it is merely a draft, or a letter of instruction and the wording cannot be mere wishes ore requests; and last
- The video is a ‘document’. This is the easiest element to establish considering prima facie, any disk, tape, soundtrack or other device in which sounds are embodied and also film, negative or tape or other device in which visual images are embodied are considered a document.
To prove these three elements, the Courts may admit direct statements by the deceased and evidence surrounding the execution of the video such as notes the deceased had written about it.
The onus of proof then lies on the person propounding the video to prove that it is a Will of a capable testator. The court must be positively satisfied on the balance of probabilities that the deceased had testamentary capacity and the video intended to be his or her Will.
Video Will Case Study
Although in a different jurisdiction, the 2015 New South Wales Supreme Court case of the Estate of Wai Fun Chan (decd) is a sound demonstration of how video Wills, can, if they comply with the relevant section on ‘informal Wills’, can be treated as one.
In this particular case, a deceased Chinese widow left a formal Will prepared by a solicitor however, she was later dissatisfied with the formal Will and wanted to grant legacy to applicants over and above any provision made previously.
Time and circumstance conspired against the return of the solicitor to prepare a codicil, so to make the appropriate alterations in lieu, the testatrix made a short, oral statement that was captured on a digital video disk in which one of the witnesses of the video was named as beneficiary.
The applicants applied for a grant of probate on the formal Will, together with the video will as a codicil. The application was accompanied by a transcription of the video Will in original Chinese and English translation of transcription by a certified, registered translator.
The question of course was whether this ‘video’ satisfied all the requirements of NSW’s version of Victoria’s section 9, and could be admitted to probate.
The court held that the video should be admitted to probate as an informal will under NSW Succession Act 2006 s 8, as it satisfied all of the requirements.
If you have any further questions, or there’s a video that you believe qualifies as a Will that you would either like to admit to Probate or contest, please do not hesitate to give the team at Hentys Lawyers a call.