We have previously written about the various requirements of valid Wills, including the need for testators (Will-makers) to have ‘testamentary capacity’.
We now look at video (or audio) Wills. Are they valid? Are they appropriate?
Requirements for a Valid Will
Broadly, Wills are valid in NSW where:
- Testators understand the nature and effect of their Will and the claims of potential beneficiaries (‘testamentary capacity’), and they know and approve of their Will’s contents; and
- The requirements of Succession Act 2006 (NSW) section 6 are met.
Section 6(1) states that:
A will is not valid unless:
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator; and
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and
(c) at least 2 of those witnesses attest and sign the will in the presence of the testator.
Most Wills are therefore written, and signed and witnessed by other people.
Video or Audio Wills
What about Wills made using video or audio recordings?
Unwritten Wills are ‘informal,’ and there is no guarantee that a court will regard them as valid.
Section 8 of the Succession Act allows courts to dispense with the formal requirements outlined in section 6:
- A court may admit a “document” that “purports to state the [deceased’s] testamentary intentions“, provided the court is satisfied that the deceased intended it to form part of their Will (or to alter or revoke their Will).
- Documents are not only written. They include anything containing meaningful “marks, figures, symbols or perforations“, anything that can reproduce “sounds, images or writings” or a “map, plan, drawing or photograph” (Interpretation Act 1987 (NSW) s 21).
If the unwritten Will constitutes a “document” under section 8, it may be accepted. If it is not a “document”, then it is an oral Will that can never be valid.
As discussed below, the difference between a section 8 informal Will and an oral Will is a very fine one. The court must decide what type of Will it is, according to the case’s particular circumstances.
Video Wills in Practice: Re Estate of Wai Fun Chan
Video Wills are rare in Australia, and there are few court cases that consider their validity.
Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 was the first case where the NSW Supreme Court accepted a video Will.
The deceased left a formal written and signed Will on 6 March 2012. Two days later, she made a DVD recording where she made different testamentary intentions than those in her formal Will. She was unable to return to the solicitor’s office to amend her written Will. She had been warned that the video recording might not be legally valid.
The court found that the Will was a section 8 “document”, since the DVD contained “sounds, images or writings“. The video Will was admitted as a codicil (amendment/addition) to her formal will of 6 March 2012.
In his judgment, Lindsay J noted (at [4]) that:
[The court places] a premium … upon substance over form in ascertaining the testamentary intentions of a deceased person, and in seeing that his or her beneficiaries get what is due to them.
Video Wills: An unsuccessful case
A different conclusion was reached in Cassie v Koumans [2007] NSWSC 481, where a video Will was rejected. It was claimed that the video constituted a codicil to the deceased’s formal Will. However, whilst the document constituted a section 8 “document”, the court thought the video merely explained the deceased’s decision in her formal Will, and did not seek to alter the terms of that Will.
Text Message Wills
In Re Nichol; Nichol v Nichol [2017] QSC 220, the Queensland Supreme Court accepted an unsent text message as a valid Will. The text message, created shortly before death, listed the deceased’s assets and bequeathed his assets to family members.
Video Wills: A good idea?
Video and audio Wills are a novel way to express your testamentary wishes.
As society and the courts embrace digital technology, Succession Act section 6 may be amended to formally allow non-written Wills.
For now, video Wills are legally uncertain, and create unnecessary expense, delay and stress for the deceased’s family.
As Lindsay J noted in Chan (at [5]):
The interests of all concerned … are generally best served by compliance with the formalities prescribed by section 6 for the making of a valid Will.
Get Advice
If you need a Will, Power of Attorney or Appointment of Guardian, or help with a Probate or contested-Wills matter, Martin Bullock Lawyers can help. Call Greg or Jacqueline on (02) 9687 9322.