Video Wills: Validity and Consequences

14 MAY 2019

 

In the digital age, the question of whether a video can classify as a valid Will is now more relevant than ever.

In the 2018 Queensland Supreme Court case of Radford v White, the testator’s partner pressed him to make a Will before he collected his new motor cycle.  Given the pressure of time, he made a video recording on his mobile phone explaining how he wanted his Estate to be distributed, should he pass away. On his return from collecting the motor cycle, the testator was in an accident and suffered significant injuries.  The testator died 14 months later.

When the case came before the Court, the ultimate question was: Does a video recording suffice as a Will? The Court found that the answer was yes. A video of this nature, will suffice as an informal Will under Queensland law.

The Court found that the video recording was done as a matter of convenience, with the testator stating in the video he would, “fill out the damn forms later.” The Court took this to mean that the testator had the intention to complete the formalities and requirements of executing a formal Will at a later date. That date of course, did not come.

Similarly, in the New South Wales case of Re Estate of Wai Fun Chan, the Court held that a video is capable of meeting the criteria for an informal Will in specific circumstances.

It is important to note that before rushing out to record your last wishes on video, there are limitations to consider:

  1. The Court will always need to intervene to determine whether your video Will is valid. The costs of this determination will come out of your Estate.
  2. If it is found to be invalid, this may leave you without a Will. Where a person does not have a Will, the NSW law determines who receives your Estate and in what share. This may be entirely different to your intentions.

Current NSW cases suggests that we are still a long way from video Wills being the norm and that a properly executed written Will is undoubtedly the best form of protection for your Estate.

Our Estate Planning Department are experienced solicitors who can assist you in preparing a comprehensive written Will that will ensure your Will reflects your wishes.

For more information on the above article contact Krystle Wolthers on kwolthers@marsdens.net.au or David Hogan on dhogan@marsdens.net.au  or call 4626 5077 to talk to one of our Estate Planning Solicitors.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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