In the case of Re Estate of Wai Fun CHAN, Deceased [2015] NSWSC 1107 the Supreme Court of New South Wales has for the first time accepted the validity of a will recorded on DVD.
In this case the deceased left a formal written and signed will dated 6 March 2012, and two days later made a DVD recording in which she purported to change her testamentary intentions from those contained within the formal will.
The deceased was 85 years old and was unable to return to her lawyer’s office to amend the formal will. She was warned that a video recording might not be effective under the law. Nevertheless, she insisted upon recording her final testamentary intentions in a video and intended for the video recording to have legal effect.
Video recordings do not satisfy the formal requirements for a will under section 6 of the Succession Act 2006 (the law regulating wills and estates in New South Wales).
What is a valid will?
A will is not valid under section 6 unless it is “in writing and signed” and the signature is made in the presence of two or more witnesses present at the same time.
However, under section 8 the Court may dispense with the formal requirements for the execution, alteration or revocation of wills and accept other documents as informal wills with full legal effect.
Oral statements are not documents and cannot be accepted as informal wills.
The Court determined that a video recording was not a purely oral statement, and actually constituted a “document” under the relevant legal definition. This was because a DVD is a thing “from which sounds, images or writings can be reproduced with or without the aid of anything else”.
The Court, therefore, accepted the video recording under section 8 and admitted it to probate as a codicil to the formal will made two days earlier. A codicil is a legally binding amendment to an existing will.
It is important to note that a video will has absolutely no certainty of being accepted by a Court. An informal will is less secure than a formal will, and when the latter option is available it should usually be taken. The judge in this case stressed that the making of video wills is high risk and is not in the best interests of the person making the will or the intended beneficiaries.
However, if you are the intended beneficiary of a video will this case is clear authority that you may be able have it admitted to probate.
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