Mobile phones and other devices with inbuilt cameras have made recordings a more popular way to communicate than paper-based documents over the last fifteen years. According to specialists in the area, it is possible that it will be more common for video Wills to be left behind than actual written documents.
However, that time has not come yet, and due to the regulations and strict legislation surrounding estate planning, you may run into several issues if you simply leave behind a video Will. The biggest threat is that if you are unprepared then will contesting may be an issue.
What Is Required For A Will To Be Considered Valid?
Given that age of Will legislation in Australia, you may not be surprised to know that Wills need to meet the following considerations to be valid:
– The Will must be prepared in writing;
– The Will must be signed by the Will maker and some one else in the Will maker’s presence;
– It must be apparent that the signing indicates the that signature was intended to give effect to the Will;
– There must be two or more witnesses present at the signing of the Will;
– The Will must have the signature of one or more witnesses.
As you can tell by the above requirements, these provision, made in 1936, do not account for anything but a written Will on a piece of paper.
However, the Wills Acts does allow an exception where a document expresses the testamentary intentions of the deceased, where they intended the document to constitute part of their Will. This may be used even if it does not comply with all the requirements listed above.
Due to the ambiguity surrounding this, it is not so clear cut as to whether a video Will will be accepted or not. Rather the matter comes down to the court, the state or territory resided in and the circumstances surrounding the recording.
Have There Been Any Video Wills Accepted By The Courts?
There are a few cases where video Wills have been accepted by the courts as informal Wills. In each of these cases, the final decision depended heavily on the individual circumstances surrounding the case.
What made these video Wills even eligible as ‘informal Wills’ was the clear intention of the testator for the media to represent their last Will and testament. However, the likelihood of such a recording being accepted by the courts is 50/50. There are too many things that may result in the Will being dismissed. In this scenario, will contesting is more likely to happen.
Below are some of the reasons why a Will may be dismissed by a court:
– As the document represents an ‘informal Will’ it will require scrutiny by the courts. This process can be distressing, expensive and time-consuming;
– If the testator does not make clear that the recording is intended to overshadow all previous Wills, then the outcome may be the recording is considered a codicil of a previous Will;
– The language used by the testator in the video may not be appropriate and therefore be unclear for the purposes of a legal document;
– If the person states their wishes in uncertain terms, such as “I would like this to happen under the circumstance of my death”, the court may dismiss the video as a statement of their desire and not a formal declaration of their dying wishes;
– The language used may lead to uncertainty regarding the appointment of beneficiaries;
– There may be multiple recordings with inconsistent with other recordings or informal documents. An example of this might be a statement they make on a recording, only to be rebuked on social media later. Which informal document has precedent?;
– The video may be at odds with what the testator has stated before or after the recording, leading to further ambiguity and doubt surrounding the wishes of the deceased.
In regards to will contesting, the quality of the recording may also play some part in the acceptance of the video Will being accepted.
Although a video Will may seem like a cost effective solution, it may end up costing several thousands from your estate as opposed to spending a few hundred on writing up a Will with a local estate lawyer.
If you would like further advice or assistance on this matter, we recommend you talk to a specialist lawyer in the field of Wills and estate planning. Taking the time to properly prepare your Will, will prevent much disorder and distress when you have passed on.
Don’t forget to have a read of our other blog; Survivorship – Knowing Your Rights As A Joint-Tenant Or Tenant-In-Common