Your passing will be difficult enough without unnecessary complications arising from an invalid Will. Ensuring clarity and a smooth process for the implementation of your final wishes will be much appreciated by grieving loved ones, so while it might appear to be the modern thing to do, our advice is to think twice before making a video Will.
It is important to understand that a Will drafted by a lawyer will be far superior to a video Will. The lawyer will include customised clauses that take into account all your assets and circumstances. They will keep digital and physical copies and will hold your original Will in safe custody if you so wish. A lawyer will also fast-track your Will if you require it urgently. The reality is that you should only consider making a video Will in the most extreme circumstances.
While the safest way to make a valid Will is to instruct a lawyer, there may be circumstances where it is not possible or practical or where the deceased person just did not get around to doing it. In Queensland, Australia, the law recognises this in s18 of the Queensland Succession Act 1981. Essentially, s18 provides that a court may find that a document forms a Will if the court is satisfied that the person intended the document as that person’s Will. A ‘document’ includes sounds, images or messages capable of being produced or reproduced. This includes a video recording.
A video Will can only ever be very basic. That is, it would not take into account the finer details such as tax consequences, your personal circumstances and assets nor specific instructions you may want to give to your executor. Further, it may be difficult to copy and the digital copy may degrade if stored on a physical medium. There is also the potential for a storage device (USB, laptop, phone or other hand-held device) to be lost.
If the court were to find that video material and supporting evidence was not sufficient to satisfy it of a valid Will, then your existing Will (if you have one) will be considered your last Will and it will be the document which will be followed upon your death, irrespective of what you recorded on video. Alternatively, if you do not have a Will, your estate will be dealt with under the strict rules of intestacy which may result in your estate not being distributed in the way you wish.
Mini Case Study
In the recent Queensland (Australia) case of Radford -v- White (Judgment delivered on 17 December 2018) the Court decided that video recording of the testamentary intentions of Jay Schwer (who died on 24 January 2018) made in November 2016 was a valid Will.
Questions the Court asked and the answers the Court concluded were as follows:
Q Did the video recording purport to state the testamentary intentions of Mr Schwer?
A Mr Schwer states in the recording that the reason for the recording is that his girlfriend asked him to do a Will before he picked up a new motorcycle he had purchased.
Q Did Mr Schwer intend that the video recording should without more operate as his Will?
A Yes, language used by Mr Schwer expressed his intention was not conditional on anything that would affect testamentary intention coming into operation.
Q Did Mr Schwer have testamentary capacity? (This question was necessary as the presumption of capacity of a testator to make a Will does not apply to an informal Will.) [‘Testamentary capacity’ is the legal and mental ability to make or alter a valid Will.]
A Mr Schwer had capacity. Evidence was brought before the court regarding capacity. The court was satisfied that he had capacity.
In the case of Mr Schwer, the video was found to constitute a valid Will. However, the Will-making process chosen by Mr Schwer left that conclusion in some doubt. Lack of a formal Will ultimately caused Mr Schwer’s family and loved ones to incur costs and additional effort to have the matter resolved in a court application.
Also during 2018, a Western Australian case (the Estate of Peter Pitman) that relied on video material and supporting evidence was considered insufficient to satisfy the court.
Your next step…
In order to be certain that your estate and death benefits are paid as you wish, you must have a formal Will and make a binding nomination to your super fund trustee. Please contact me, Craig Hong, or Ian Hillhouse for information, advice and assistance with your estate planning arrangements*. Phone (07) 3007 2000 or email contact@resourcesunearthed.com.au
*If you have or you are living and working overseas, it is important to take your complete estate planning requirements into account. These include your Will, superannuation funds, trusts and companies as well as tax residency. Further, an international convention may mean it is possible to have one international Will to deal with your estate, wherever it is situated. Please contact us to find out more.
*There are a number of complex legal areas where Will-makers may lack information about the law or accounting principles. These include marriage revoking a Will and an enduring power of attorney; and estate issues concerning Family Trusts and Wills. Please contact us for assistance.
Resources Unearthed is a solutions hub that provides integrated financial, legal, property and accounting & business advisory services for executives, professionals and business owners in the mining and resources sectors.
No responsibility will be taken by Hillhouse Legal Partners for loss occasioned directly or indirectly to any person acting or refraining from acting wholly or partially upon or as a result of the material in this publication.
