Video Wills: Will they ever be an accepted method in Probate practice?

November 22, 2018

As technology advances, so must the law and the way it is applied. Recent cases have highlighted that in exceptional circumstances, some Australian Courts are willing to accept a Will made by video. 
 
In order to be considered valid, a Will must be written, signed by the Testator and witnessed by two or more witnesses who are present at the same time.
 
If these requirements are not met, Section 8 of the Succession Act 2006 (NSW) (the “Act”) sets out the circumstances in which the Court may dispense with the formal requirements for execution, alteration and revocation of Wills. Notably, the court can make reference to any evidence relating to testamentary intention of the deceased person.
 
In some cases, a video might be held to be an informal Will if the Court is persuaded that the video was intended to be the person’s last Will.
 
In 2015, the NSW Supreme Court handed down the decision of Re: Estate of Wai Fun Chan (Deceased) [2015] NSWSC 1107. In this case, the Court considered that a video made by a Testatrix in the presence of a witness with the intention to alter her Will was admitted to Probate as a Codicil.
 
His Honour noted that here, a video could come within the definition of a document pursuant to Section 3(1) of the Act, despite it not meeting the formal requirements of Section 6 of the Act, because it was clear from extrinsic evidence that the video was intended to record her testamentary wishes.
 
In the recent Western Australia case of In the Estate of Peter Anthony Pitman (Deceased); Ex Parte Rosemary Machin Pitman & Anor [2018] WASC 237, the Court declined to accept a series of videos made by a Testator as a Will because it was not persuaded that the videos were a complete expression of his testamentary expressions. As the Court could not be certain that the Testator intended the series of videos (which were of low quality and had not been disclosed to anyone) to be his last Will, the Testator’s Estate was distributed in accordance with the laws of intestacy (the manner in which an Estate is distributed when a person dies without a Will).
 
It is important to note that Courts will only accept a video as a Will in exceptional circumstances and that the process to obtain such an order is costly and drawn out, with the costs of the order to be paid by the Estate.
 
If you are considering making a Will, please do not hesitate to contact one of our experienced Wills and Estates Lawyers on (02) 4926 1944.

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