Is a Videoed Will Valid?

The creation of a valid Will requires care and attention, so that our wishes for the distribution of our property will be clearly communicated to those we leave behind when we die. It is for this reason that the law sets out strict requirements for how a Will is to be properly constituted.

However, with developments in technology, people are increasingly attempting to communicate their wishes via video. In the recent case of Re Estate of Wai Fun Chan (available here), the Supreme Court of New South Wales (NSW) was asked to consider this very issue, specifically the legal standing of a secondary Will made via a video recording. In this blog post, we take a look at the court’s judgment and the law governing the creation and validity of Wills.

What were the facts of this case?

The late Mrs Wai Fun Chan was an 85-year-old widow originally from the People’s Republic of China. She had lived in Australia for some 23 years and had accumulated a substantial estate of property, both in NSW and in China. Her estate valued at around $930,000. Mrs Chan died on 27 June 2012 leaving behind a formal, written Will dated 6 March 2012 as well as a copy of the Will in Cantonese, which Ms Chan had agreed she understood the terms to. In ordinary circumstances, there would be nothing particularly unusual about Mrs Chan’s situation. However, she also left behind a DVD recording that contained some additional comments from her to supplement the wishes recorded in her Will (created with the help of her second daughter and her husband), on how the contents of her estate were to be distributed among her eight surviving children.

Why did Mrs Chan create a video Will?

The NSW Supreme Court was informed that Mrs Chan was not content with the terms of the initial Will that had been prepared for her. She took issue with the fact that in her original Will, she had been dissuaded by one of her children from allowing that child and her sister to benefit from a special legacy that was to be over and above what had been allocated to her other surviving children. Both of these particular children felt indebted to their mother for recent support that she had provided, and so felt that they did not deserve any special treatment in their mothers’ Will.

Unfortunately, Mrs Chan did not have the benefit of time or of favourable circumstances in order to arrange for a formal condition to be prepared and attached to her Will. Instead, she decided to make a short statement that was recorded on DVD to supplement her original Will. While she was warned that owing to the lack of formality, her wishes may not be respected in the distribution of her estate, Mrs Chan was adamant that she wished to make a video recording of her intentions. The court was informed that Mrs Chan was adamant that she be able to speak to her children after her death, communicating her intentions. This also included granting the special legacy to two of her children above what she had originally intended for her other children.

How did the court react to the video Will?

The court considered the terms of both the formal Will that Mrs Chan had created, as well as the video designed to supplement its terms. It had no difficulty in agreeing that the written Will met the necessary legal requirements to be given effect to. In terms of the position of the DVD recording, the court pointed out that under relevant case law and the Succession Act 2006 there is an avenue to dispense with the traditional legal requirements for the creation of a Will. In particular, the court drew attention to s.8 of the 2006 Act which allows the court to dispense with the formal legal requirements where there is evidence that the deceased intended for the recording to alter the terms of their original Will. The court was also convinced that the terms of Mrs Chan’s formal Will, along with the points she raised in her recording, where perfectly valid, aided by supporting evidence that she was fully aware of the consequences of her actions and terms of both her Will and the recording.

It reviewed the content of Mrs Chan’s DVD recording, noting that she was the only person audible or visible in the recording. The court did acknowledge that Mrs Chan appeared to glance to the side of the screen, which the court took to be communication with her daughter and her daughter’s husband. Further, it pointed out that she also seemed to glance down from time to time, as if to review notes of her intended speech. However, it saw no evidence of hesitation or agitation, and persuaded that she was in a calm manner, and perfectly at ease in her surroundings and in the message she was delivering.

Ultimately, the court order that the DVD recording constituted a valid codicil to the written Will, and that its terms could be followed in the distributed of the late Mrs Chan’s estate.

What does this mean for the law of Wills?

The courts are not complete strangers to being confronted with Wills, or additions to them that are not recorded in writing. However, this is one of the more recent cases to be brought to the court’s attention, and provides useful guidance to people considering making a Will. It is important to understand that there is still a significant degree of risk in attempting to record your intentions for your estate through non-traditional means. As in Mrs Chan’s case, court proceedings were only required owing to the fact that there was a DVD recording. This would have been avoided – so too the risk of her wishes being ignored – had she been able to enact a formal addition to her Will. If you have any interest in making a Will, or perhaps already have one and would like to make changes to it, you would be best advised to contact an experienced solicitor as soon as possible so that your concerns can be addressed.

Szabo & Associates, Solicitors are a specialist provider of legal advice on the law governing Wills. We understand that you may change your mind on what you would like to be done with your estate after you pass away, and would encourage you to ensure that this is formally recorded in writing on every occasion. Our team can ensure that your intentions for your estate are fully recorded, allowing you to concentrate on enjoying your life and not being concerned with what will happen to your estate when you pass away. To learn more about how the law treats Wills, or for assistance in having one created, speak to George Szabo today.