Is A Video Will Valid? (WA) | Armstrong Legal

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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.

Is A Video Will Valid? (WA)


When most people imagine a last will and testament, they think of a handwritten or word-processed document. Indeed, a will is only legally valid when it is created according to certain regulations. The situation becomes more complicated when someone leaves their testamentary wishes in a medium that does not adhere to the statutory guidelines. For instance, a testator might find a video will an attractive option, as it allows them to share their thoughts with their beneficiaries in a more natural and informal fashion. A testator may hope that this method will convey their wishes in a way that reduces misunderstanding, discourages acrimony amongst the beneficiaries, and is more personal and direct. A will is only legally valid in Western Australia when it abides by formal guidelines, so a video will is technically not a valid will. However, as this article will explore, there is common law precedent to validate an informal video will, but only when certain factors can be substantiated.

Making A Valid Will

In Western Australia, a person making a will must have adequate testamentary capacity, and be at least eighteen years old. A minor child may only create a will in limited circumstances and with the permission of the court.

In addition, in Western Australia a will is only valid if it follows the rules specified in the Wills Act 1970. A will is valid if:

  • it is in writing;
  • the testator signs (or authorises a signature) in front of at least two witnesses; and
  • the witnesses observe and attest to the testator’s signature by also signing, in the presence of the testator and each other.

Informal Wills

A will that does not follow these rules is known as an informal will. Someone can challenge an informal will and it will then be up to the Supreme Court to decide whether to probate or invalidate the will. In the event that the court judges the will to be invalid, it will move to validate an older formal will. If there is no previous will, the deceased estate will be deemed intestate and subject to the Administration Act 1903.

Validating A Video Will

To probate an informal will pursuant to Part X of the Wills Act 1970, the will must be classified as a “document”, able to record information in writing or through meaningful marks or symbols, a plan, drawing, photograph or map, or on something that reproduces images, sounds or writing. It must express, alter, revoke, or revive the testamentary intentions of the deceased person, and function as a will. The court may consider extrinsic evidence relating to the manner of execution and the testamentary intentions of the deceased.

There has been abundant case law both in both Western Australia and across Australia that has established that a video will is in fact a document according to the statutory regulations. A video that reproduces sounds and images is a document as outlined in the Wills Act 1970.

Case Study

In the case of In the Estate of Peter Anthony Pitman (Deceased); Ex Parte Rosemary Machin Pitman & Anor [2018], the Supreme Court of Western Australia considered the validity of a video will. The deceased left no formal valid will, but his daughter found video files on his computer and she, along with the deceased’s widow, applied for one of those files to be considered an informal will.

The court application was lodged with a USB drive that contained a copy of the video files. This introduced the first issue: the USB did not contain an original of the document being submitted as a will. The court issued a probate requisition to seek the original hard drive or evidence of authenticity, stating that this was particularly important as the court was having problems viewing the copies. An expert technician swore an affidavit that there is no trace of the original files, as they were either lost or destroyed.

The court did accept that it was the deceased in the recording, and that he appeared to have testamentary capacity. The daughter deposed that her father was comfortable with the medium of video, and was not surprised that her father would make a video will. However, the court found that nothing about the poor quality of the recording confirms this assertion that the deceased was proficient with video.

The court recounted the factors that made it impossible to accept that the document was meant to constitute a last will, including the content of the document, the context, later discussions the deceased had with others and what he ultimately did with the videos.

The Contents

The court had issue with the quality of the recordings, as the audio and visual were not synchronised, and the visual freezes at certain points. The court was satisfied with the audio transcription as submitted by the plaintiff but found that there was no way to pronounce this the complete words of the deceased. They could not conclude that the transcript reflected all that the deceased recorded, because of a variety of reasons including the gaps in the recording and the inconclusive endings.

The court found that there was no coherent beginning, middle and end to the video. The deceased referred to the recording as a “preamble”, and the court found the deceased to be “somewhat rambling” rather than using a comprehensive approach to the disposal of his assets.

Later Discussions

His son deposed that his father talked about everything with him, and never mentioned making a video will. The deceased’s widow recalled conversations that she had with her husband about making a will, but he was dismissive of the prospect and never mentioned having already made a video will. The court particularly found it telling that the deceased did not tell anyone about the existence of the files, and they were only accidentally discovered after his death.

Context

The court found that the fact that the deceased made four of these files in quick succession suggests that he did not intend any of them to represent his last will and testament. The court concluded that if one of the files were intended to act as a will, the deceased would have deleted the other files.

The court concluded that the video will was a document under the Wills Act and that it expressed testamentary intention. However, the court found that it did not express the complete testamentary intention of the deceased. The court asserted that the deceased did not intend the video to be his will. It was the ruling of the court that the application for probate of the video be refused.

As this case demonstrates, even though Supreme Courts across Australia are looking more favourably on video wills, there are often problems with the creation and execution of this type of document that can lead to problems with validating an informal will. Armstrong Legal can assist you with drafting a valid will that plainly states your testamentary wishes. Our contested wills team can also help if you need to challenge a video will that you doubt represents the true wishes of a testator. Please get in touch or call 1300 038 223 without delay to talk over your legal needs.

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