Is A Video Will Valid? (NSW)
In New South Wales, a will is only legally valid when it is created according to specific statutory rules. It is crucial that the will is a written document that contains the signature of the testator and the signatures of two independent witnesses. A video will prima facie does not meet these legislative rules and as such, a video has historically not been considered a valid will. However, in our increasingly digital society, there have been movements towards recognising video wills. This article outlines the statutory rules that apply to the making of wills and explains the importance of recent common law decisions on the validity of video wills in NSW.
What Makes A Will Valid?
The Succession Act 2006 stipulates that a will is only valid when the testator is over the age of eighteen and has testamentary capacity. In addition, a will must be either handwritten or typewritten, and appropriately signed and dated. Two independent parties must witness the testator’s signature, and these witnesses cannot themselves benefit from the will or be a spouse of the testator.
Any will that does not follow these regulations is known as an informal will, and can be challenged in court and may be found to be invalid. If a will is found invalid, and there is no previous valid will, the deceased estate will be deemed intestate and will be distributed according to intestate succession law rather than the wishes expressed in the informal will. This means that any bequests to friends, charitable organisations or extended family members will be disregarded, and only the closest relatives of the deceased will inherit.
Australian courts have historically accepted video or audio recordings as evidence to clarify the wishes of the testator, but not as a valid will. As a result, where there is a contradiction between a valid written will and informal video will, the New South Wales courts have consistently privileged the written will over the video will, even if the video will is more recent. For instance, in the 2007 decision of Cassie v Koumans, the court found that a video that contradicted the terms of the testator’s written will was not valid, despite being more recent than the written will. The court was not satisfied that the video was intended to alter the testator’s final testamentary will.
Courts have concentrated on the question of whether a video will is an oral statement or a document. If a video will is an oral statement it cannot be validated as an informal will. In more recent common law decisions, the court has found that a video is not just an oral statement and it does in fact constitute a “document” for the purposes of testamentary law. The status of a video will as a document is reflected in recent common law decisions of the Supreme Court of NSW. In these cases, a video recording has been held to be an object from which “sounds, images or writings can be reproduced with or without the aid of anything else”. In light of such precedents, the court can dispense with the requirement that a will meet certain formal regulations and in most cases accept a document as an informal but valid will.
In Re Estate of Wai Fun Chan, Deceased (2015), the Supreme Court of NSW accepted a video will as valid. The testator in this case left her estate, valued at $93,000, equally to her eight children. She wished to make a greater provision for two of her children who had cared for her in her final years but was persuaded not to make this arrangement by one of her other children. Several days later, conscious that she may not have a great deal of time left, and unable to return to her solicitor’s office, Wai Fun recorded a new will on video. The testator was aware that a video will might present issues, but she was not deterred. As the court noted, the testator wanted to directly “speak” to her children to make her last wishes clear. The court found that in this case, the video was a document and, as such, an informal will and legally valid.
In the judgment for this case, the court warned that the substantial costs and delays that come with validating a video will should caution people against making this type of testamentary arrangement. While it might seem like a good idea to make a video will, an informal will is vulnerable to challenge and the only way to verify the validity of a video will is through a court hearing, which is time-consuming and expensive to the estate. As such, a video will is a high-risk strategy that is not beneficial for the testator or the prospective beneficiaries.