Australia: Can you record a will on a dvd?

IN BRIEF

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 [2015] 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 executed.

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 will?
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 yet...
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 solicitor.

For further information, please contact:

Angela Harvey, Partner
Phone: +61 2 9233 5544
Email: axh@swaab.com.au

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