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Is A Video Will Valid? (Qld)

A will that is comprehensive, current and clearly expressed gives a person the best chance for straightforward administration of their deceased estate. The statutory rules that regulate the making of a will have traditionally only recognised a written document as valid. However, with the growing prevalence of video and digital recording, there has been a concurrent push for video wills to record the last wishes of a testator. Until recently, there has been no allowance for this new technology in either succession legislation or common law precedent. In 2018 though, the Supreme Court of Queensland made a ruling that validated a video will as a valid testamentary instrument. This article outlines the established rules for making a will and explores the question of whether a video will is valid in Queensland.

Statutory Regulations Making A Valid Will

A will must conform to established legal formalities in order to be valid. It must be either typed or handwritten and the testator must sign the document once and initial each page. Two independent parties must witness the testator’s signature and these witnesses cannot benefit from the will and cannot be in a spousal relationship with the testator. Traditionally, any will that does not follow these specific rules is termed an informal will, which can be challenged and found invalid. In the absence of a valid legal will, an estate is intestate and will be administrated according to intestate succession legislation.

In the past, a video recording was treated not as an informal will but as an acceptable way to clarify or provide better illustration of the wishes expressed in the written will. It was up to an individual judge to decide whether a specific recording was admissible and could be used to clarify a testamentary issue. If there was a contradiction between a written and a video will, then the written will had authority.

In more recent decisions, common law has allowed unconventional items to be designated a ‘document’ for the purpose of validating an informal will. Courts have previously decided that any device that contains sounds or film may be considered a document. Even so, there is no guarantee that a court will accept a document as an informal will. In Queensland, the court has accepted the validity of testamentary instruction from documents such as notes on a mobile phone (Re Yu (2013)), a Word document (Yazbek v Yazbek (2012)), and audio recordings (Re Estate of Carrigan (dec’d) (2018)). The Supreme Court has full authority to validate any document as a will, including an informal will if there is evidence of clear intent to create a legal testament.

The court will consider the validity of a video as a will in light of whether:

  • The video is a ‘document’;
  • The video is a record of someone’s testamentary wishes and leaves clear instructions for the disposal of their assets after their death; and
  • The video demonstrates an intention to operate as a will. It cannot suggest in any way that it is a letter of instruction or draft of a will.

Case Study

In the case of Radford v White (2018), a video will was ruled to be a valid record of the deceased’s testamentary wishes. The testator was a thirty-nine-year-old who recorded a video message containing his last wishes for his assets in a last-minute act before picking up his new motorcycle. The video will left the majority of his assets to his de facto partner, made provision for his child and directed that nothing should be bequeathed to his “soon to be ex-wife”. He also recorded his intention to make a more formal will at a later date. The testator had a motorcycle accident the same day, where he sustained a severe head injury. Just over a year later, he died from an accidental overdose of prescribed painkillers. The de facto partner of the deceased applied to the Supreme Court seeking to validate the video will, while the deceased’s ex-wife opposed the motion. The court found that the video did constitute the testator’s will, because:

  • It was a ‘document’;
  • It claimed to contain the testamentary wishes of the deceased; and
  • The testator stated his intention to proceed with the required formalities by “fill[ing] out the damn forms later”.

The court found that the failure to complete the formalities can be explained by the testator’s head injury, and did not represent a repudiation of the video will.

While there has been recent confirmation of the prospective validity of video wills, it is still advisable to make a properly executed written will to ensure that your wishes for your deceased estate are followed. There is a real danger in making a video will that the court will deem your will invalid and your estate will be intestate as a result. The contested wills team at Armstrong Legal can advise you on the best way to proceed to ensure your testamentary wishes are respected. Please telephone 1300 038 223 to talk to our team or contact our offices to set up an appointment.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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