Traditionally, wills have been executed in writing, signed, and witnessed to ensure their validity. However, with advancements in technology, the question arises as to whether a video will can be considered legally valid in New South Wales (NSW) under the Succession Act. This article explores the current legal framework surrounding video wills in NSW and the factors that affect their validity.
What are the Legal Requirements for a Valid Will in NSW?
Under the Succession Act 2006 in NSW, certain requirements must be met for a will to be considered valid. According to Section 6 of the Act, a will must be in writing and signed by the testator or by someone else in their presence and at their direction. Additionally, the will must be signed by two or more witnesses who are present at the same time.
Does the Court have the power to recognise a video will as a valid will?
The short answer is – yes.
Section 8 of the Succession Act 2006 (NSW) provides the court with a general power to dispense with the formal requirements of a will. Lindsay J noted at paragraph 4 in his judgment in Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 that the court places a:
‘premium….upon substance over form in ascertaining the testamentary intentions of a deceased person, and in seeing that his or her beneficiaries get what is due to them’
Case law indicates that there are three main considerations for the court to determine in relation to whether an informal document such a video will is a valid will which include:
- There must be a document;
- The document must state the testamentary intentions of the deceased;
- The deceased must have intended the document to be his or her will.
The lack of formal recognition for video wills raises several challenges and concerns. Unwritten wills are considered ‘informal’ wills and there is no guarantee that a court will regard them as valid. If a video will is found invalid, and there is no previous valid will, then the deceased will be deemed intestate and accordingly the estate will be distributed according to intestate succession law rather than the wishes expressed in the informal will. This means that any gifts to friends, charitable organisations or extended family members will be disregarded, and only the closest relatives of the deceased will inherit under the priorities set out in succession law.
One significant concern is the potential for fraud or undue influence, as video recordings can be easily manipulated or coerced without proper safeguards. Without the presence of witnesses during the video will’s creation, it becomes difficult to ensure the testator’s testamentary intentions were genuine and voluntary.
Additionally, video wills may also face issues regarding the identification of the testator, their capacity to make a will, and the clarity of their intentions. These aspects are often easier to verify with a traditional written will, where witnesses can attest to the testator’s mental state and understanding.
Despite the evidentiary weight given to video or audio recordings, NSW courts have consistently upheld the primacy of written wills. In cases where a valid written will and an informal video will contradict each other, the courts have consistently privileged the written will, even if the video will is more recent. This approach reflects the courts’ emphasis on adhering to the formalities prescribed by the law and ensuring the testator’s true testamentary intentions are preserved.
An illustrative example of the NSW courts’ stance on video wills can be seen in the 2007 case of Cassie v Koumans. In this case, a video recording surfaced that contradicted the terms of the testator’s written will. Despite the video being more recent, the court ruled that it was not a valid will and upheld the written will as the legally binding document. The court’s rationale was that the video did not demonstrate the testator’s clear intention to alter their final testamentary will.
Conclusion
It may be the case that as our everchanging society embraces technology that the formal requirements of a Will under section 6 of the Succession Act may be amended to explicitly recognise the validity of video wills and the like.
However, under current legislation and as demonstrated by case law, videos wills create legal uncertainty and have the potential to establish unnecessary expense, delay and stress for a deceased’s family and friends.
As Justice Linda noted in Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107:
“The interests of all concerned…are generally best served by compliance with the formalities prescribed by section 6 for the making of a valid will”.
The importance of specialist advice in creating a valid Will is clear.
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