With the proliferation of mobile phones and other portable recording devices and the movement away from paper-based documents, it’s not too difficult to envisage a time when making a Will via video will become more common.
For the time being though, a Will made by video is not without its problems and is showing that the convenience of technology has its limits.
In order for a Will to be valid in South Australia it must comply with the requirements of the Wills Act, 1936 (“Wills Act”).
If the year 1936 is not a ‘dead’ give away, then you won’t be surprised to know for a Will to be valid it needs to:
- be in writing;
- be signed by the will-maker or some other person in the will-maker’s presence and at the will-maker’s direction;
- appear on its face or otherwise that the will-maker intended by his or her signature to give effect to the will;
- the will-maker’s signature must be made or acknowledged by the will-maker in the presence of 2 or more witnesses at the same time; and
- contain the signatures of the witnesses made in the presence of the will-maker.
Of course, it was intended by the above that a Will would be written on a piece of paper, as we are accustomed to.
The Wills Act goes on to provide an exception in cases where a document expresses the testamentary intentions (what the Will maker intended) of a deceased person and there is evidence that the deceased person intended the document to constitute his or her Will even though it may not comply with all of the above.
Therefore, if a document is intended to be a person’s last Will and testament and this can be proven on the facts, it may still pass the test even if it has not been signed or witnessed, for example.
However, as with many areas of the law and contrary to popular belief on the street, the matter is not ‘black and white’.
Yes, it does not take long for the grey clouds to hover overhead and turn what should be a simple sunny day into an overcast one. The grey clouds are tied to the word ‘document' and how that word has evolved over the decades to not only include written records on paper but to also include recordings on other mediums such as video cameras and computer storage devices.
Rightly or wrongly therefore, the innocent use of the word ‘document’ in the Wills Act has probably had unintended consequences.
There have been a few court cases where Wills made by video have been accepted by the courts as ‘informal Wills’. Each of those cases was decided upon a particular set of circumstances which were unique to each case. The common thread in all of the cases was however the fact that the Will-maker clearly intended the video-made Will to constitute his or her last Will. The language they used was generally clear and unambiguous and there was no other evidence which contradicted the Will-maker’s intentions expressed in the video recording.
"...what you record has as much chance of failing than passing the test for a valid Will."
But before you run off and turn on the video camera or start a ‘Will Selfie’ bear in mind that what you record has as much chance of failing than passing the test for a valid Will; the odds are probably less than 50% in most cases. Put simply, there are just too many aspects of a video recording that may render it an epic fail. Here are just a few:
- First and foremost, a Will made via video recording is at its best an ‘informal Will’ and for this reason alone it will need to stand up to the scrutiny of a court. Needless to say, this process will cost the person’s estate quite a bit of money and may even be a distressing experience for those concerned, usually family members.
- The person may not make it clear that the recording is intended to revoke all previously made Wills, whether on paper or otherwise. This in turn may lead to the outcome where the video recording is deemed to be a codicil to a previously made Will.
- The person may not use language that makes it clear that their intention is for the recording to be his or her last Will or which sounds uncertain.
- It may not be clear that the person is actually communicating his or her dying wishes, as opposed to say, what he or she wishes to happen if seriously injured. For example, the person may state “if something unfortunate happens to me, I’d like my cat to be cared for by….”.
- The language used may be ambiguous or open to speculation when it comes to the appointment of an executor and who the intended beneficiaries are to be.
- There may be other recordings of the same person making different or inconsistent statements. This highlights a practical problem for a Court considering whether to accept a particular video recording as an informal Will. In particular, a court will need to be satisfied that there is no other material made later in time or even at the same or similar time which is also intended to be the person’s Will or which contains material which is inconsistent or contradictory to the first recording. For example, a person may make a video recording of their Will but then make comments on a Facebook post about their Will which are inconsistent or which cast doubt on whether the first recording was in fact intended to be the person’s last Will.
- If the person is reading from or referring to a piece of paper in the video, it is possible that the paper writing itself will be required to be submitted as an informal Will. If that piece of paper cannot be found then it may raise doubts about the true contents of that document and whether it contained other material which was not captured in the video recording.
- The video recording may simply be at odds to what the person had stated to others either before or after the recording was made.
Making a valid Will via video is not like making a video for uploading onto YouTube; even if you possess crafty camera skills.
"Making a valid Will via video is not like making a video for uploading onto YouTube; even if you possess crafty camera skills."
Without at least a basic understanding of the requirements for a valid Will, chances are the video Will-maker’s recording will be cast aside, resulting in any previously made Will by the person to be admitted or for the person to be deemed to have died intestate; that is, without a Will.
It follows that the few hundred dollars that the person did not want to spend on a lawyer, may instead turn into thousands of dollars in court and legal fees or have unintended consequences. Our advice: bite the bullet and contact a lawyer for a pain-free consultation. If you’d like advice or assistance with your Will, feel free to get in touch with today’s blog writer, Senior Associate in Wills & Estate Planning, Errol Kaplan.