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Is A Video Will Valid? (Vic)

A growing number of testators would prefer to communicate their last will and testament through a more personal and less formal medium than a traditional document. A video will allows a testator to share their thinking about the disposal of their estate in an open and natural way that could reduce misunderstanding and acrimony amongst the beneficiaries. Unfortunately, a video will is not technically a valid way to create a legal testament in Victoria. A will is only formally valid in Victoria when it is drafted according to set rules. This article explains how a legally binding will is created and outlines recent common law decisions in regard to the validity of video wills in Victoria.

What Makes A Will Valid?

In Victoria, a valid will is created according to the rules outlined in the Wills Act 1997. Firstly, the person making the will must be a valid testator. Only someone with testamentary capacity who is over the age of eighteen can make a valid will. A minor can only make a will with judicial permission.

Secondly, the will itself must abide by clearly defined rules. A will must be a document that is legibly handwritten or typewritten, initialed and signed and dated by the testator. Two impartial witnesses also need to sign to affirm the authenticity of the testator’s signature.

Informal Will

A will that fails to abide by these rules is called an informal will, subject to legal challenge where it can be deemed invalid. If a will is judged to be invalid, the Supreme Court can validate a previous will, regardless of its age. In the event that there is no previous will, the testator’s deceased estate is intestate and will be administrated according to the Administration and Probate Act 1958. This means that any wishes set out in the invalid will to benefit friends, extended family members and charitable organisations will be disregarded. Instead, the de facto partner or spouse of the deceased has priority to inherit up to a statutory amount, with larger estates shared between spouses and children from another relationship. If the deceased has no spouse or children, then other family members inherit the estate in an order of precedence.

However, there are some circumstances when the Supreme Court can declare an informal document to be a valid will. In order for an informal will to qualify, it must be a “document” according to the statutory definition, must express testamentary wishes and be intended to function as a will. In some circumstances, a video will may fulfil these criteria.

Is A Video Will A Document?

Case law in Australia has predominantly concentrated on the question of whether an informal video will can be classified as a document. It is now widely accepted that a video that records sound and images can constitute a document for testamentary purposes. The decision is then up to the specific court as to whether a particular case meets the other requirements of a valid will: it is intended to function as a will and it contains testamentary instructions.

Video wills: A case Study

These questions were examined in a 2020 decision of the Supreme Court of Victoria, Besanko v Besanko-Hoppen. The deceased was a widow with three adult children. The deceased made a formal will in 1986 that appointed her son and one of her daughters as executors, and left her estate equally to them, with a bequest of a hundred thousand dollars to her second daughter. The main asset of the estate was a property worth nearly two million dollars.

After the death of the testator, an application was made for probate of a video will recorded in 2014. The son contended that this video will appointed him as sole executor of the estate and gave him a life interest in his mother’s property. As executor of the 1985 will, one of the daughters opposed the probate of the video will. She argued that her mother did not intend this video to be a new will and did not record testamentary intentions.

The video, which was submitted to the court, was nearly half an hour long and split into 35 separate files on a digital memory card. Inconsistencies in the recording were identified, specifically multiple time jumps, some as long as several minutes. The son admitted that the recording was not continuous but claimed that nothing of importance was discussed during the time jumps, and asserted that he did not unduly influence his mother during those periods.

The court considered the submissions from both parties and evaluated the video against informal will requirements. The court found that the video was a document and it did express testamentary wishes. However, the court ultimately found that the video was not intended to be a will that replaced the deceased’s existing will. They found the gaps in the recording problematic and noted that there were discernable changes of topic after time jumps that suggested relevant discussion was deliberately omitted from the recording. The court also noted that the testator appeared to be prompted from questions and suggestions rather than an unprompted stream of consciousness. The court ultimately determined that the testator’s statements represented preliminary discussion and intent to draw up a formal written document at a later date. The court referenced precedent that specified the importance of evidence that the deceased intended for the recording to constitute a valid will.

Another point of consideration for the court was whether the deceased had sufficient testamentary capacity to make a will when the video was recorded. Robert claimed that his mother was of sound mind, but submitted no medical evidence to support this assertion. The deceased was 91 years old at the time, and as medical records showed, her cognitive ability fluctuated in the year before the video was recorded. The court concluded that the deceased did have occasional periods of confusion and that there were apparent instances of confusion displayed on the video. Given this evidence, and the deceased’s age and general state of health, the court found that the deceased lacked sufficient capacity to make a will.

As this case illustrates, there is no certainty in making a video will. A video will may be valid in Victoria, but the only way to establish that fact is through a court hearing. A video will can be challenged and defending an informal will is expensive and time-consuming. Armstrong Legal can help you draft a valid will that clearly states your testamentary wishes. Alternatively, if you need assistance with challenging a video will that you believe is not a true representation of a testator’s wishes, our contested wills team can advise you. Please contact our team on 1300 038 223 to discuss your legal needs.

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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