The Early Romans had a curious way of making their wills. A
Roman would walk into a public space and declare his or her
testamentary intention by spoken word in front of at least seven
witnesses. Over time the Romans recognised the risk of leaving the
wishes of the deceased to the memory of the living. Oral wills were
abolished and it was ordered that a person's testamentary
intention must be put down in writing. This requirement endured for
over 2000 years.
Though in recent times Courts have upheld different
'informal wills'. On 7 August 2015, the Supreme Court of
New South Wales admitted to probate a DVD recording of a woman
declaring her testamentary intention. It is the first time a DVD
has been admitted to probate in New South Wales. In this article,
we look at the rationale behind the Court's judgement and we
tell you why, despite the decision, you still shouldn't rush to
the video camera to record your will.
ESTATE OF WAI FUN CHAN, DECEASED  NSWSC 1107
Wai Fun Chan was an 85 year old widow born in China. She had
lived in Sydney for 23 years. Wai Fun Chan made a formal, written
will on 6 March 2012. However she became unhappy with her formal
will because one of her children, acting against her own
self-interest, dissuaded Wai Fun Chan from allowing that child and
her sister a special legacy beyond the general provision made for
her children in the formal will. Wai Fun Chan was unable to return
to the office of her solicitor to prepare a codicil. With the help
of one of her daughters and the husband of that daughter, she made
a short, oral statement on a DVD recorder on 8 March 2012.
Wai Fun Chan passed away on 27 June 2012. The two daughters
applied for a grant of probate of the formal will, together with
the DVD recording as a codicil. Their application was accompanied
by a transcription of the video will in Cantonese and an English
translation of that transcription. In deciding whether the DVD was
a valid codicil, the Court considered three questions:
Did the video meet the requirements of a 'formal
will' under the Succession Act?
Section 6 of Succession Act 2006 (Act) says that a will is not
valid unless it is in writing, signed by the testator and signed
and witnessed by two other people. Clearly the DVD did not meet the
requirements of section 6 because it was not in writing nor was it
'signed' by the attesting witnesses.
Could the will be an 'informal will document' under
the Succession Act?
Section 8 of the Act allows the Court to dispense with the
execution requirements under Section 6 if a 'document'
purports to state the testamentary intentions of the deceased
person. The Court must be satisfied that the deceased person
intended it to form his or her will (or be an alteration to his or
her will). In making that decision, the Court can take into any
evidence of the testamentary intentions of the deceased person and
any evidence relating to the manner in which the document was
Strangely enough, a DVD is considered to be a 'document'
under section 21 of the Interpretation Act 1987 because it
is a 'record of information' and it is a 'thing'
from which 'sounds, images and writings can be reproduced
with... the aid of' a DVD player. Once that was established,
the Court found that the Deceased did intend the DVD to form an
alteration to her will. It noted that she was of a clear and sound
mind and that her statements were short, well considered and
disciplined. It also took into account extrinsic evidence as to the
circumstances and manner in which the recording was made.
Could a beneficiary be a witness to the video
Section 10 of the Act applies if a beneficiary of a will also
witnesses the execution of that will. Normally the gift that is
provided to that beneficiary would be void if they were also the
person who witnessed the will. However, section 10(3)(c) says that
such a beneficial disposition will not be void if the Court is
satisfied that the testator knew and approved of the disposition
and it was given or made freely and voluntarily by the testator.
This was found to be the case here. After answering these three
questions, the Court ordered that the will and video codicil be
admitted to probate.
Don't reach for your iPhone just
Despite the novelty of the Chan case, we don't
envisage YouTube and Instagram being bombarded with video wills
anytime soon. In reaching its judgment, the Court cautioned against
resorting to video wills and reminded the public of the benefits of
a formal will.
Keep in mind that the daughters had to undertake a costly and
time-consuming legal process before probate was eventually granted.
Moreover, it is much more difficult to establish the intention of
the testator under section 8 of the Act by way of a video
recording. Whilst this is an interesting development for Succession
Law in New South Wales, the easiest and cheapest option to make
your will is record it on paper with the help of an experienced
Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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