Are audio or video Wills valid?

The Succession Act 2006 (NSW) specifically provides for the requirements of a formal will. A formal will has to be in writing, signed by the testator in the presence of two or more witnesses, who will likewise sign the will in presence of the testator.
Formal wills, therefore, have to be in writing.

Wills that do not comply with the formal requirements above are categorised as informal wills (Succession Act 2006, s 8). While there is no guarantee that informal wills will be admitted to probate, there is a possibility that the court may do so if it is satisfied that the document contains the wishes of the deceased and that the deceased intended the document to be executed as a will.

Under the law, the term “document” includes written and electronic documents, and even recordings that reproduce “sounds, images or writings”. Thus, while oral wills are not recognised and cannot be admitted to probate, an exception arises where it is considered a “document” by the court that satisfies the requirements for an informal will.

In Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107, the deceased left a formal will in English. Two days later, however, she left a DVD recording of a “video will” in Cantonese. She was previously warned by her solicitor that a video recording might not be considered valid by the court. Still, acutely aware of her age and mortality, the deceased recorded the video with an introduction that she was of clear and sound mind and that the video was to be read in conjunction to her formal will. The recording was done in the presence of one of her daughters and the latter’s spouse. In the video, the testatrix mentioned how she was dissatisfied with the formal will as she felt pressured by her other child not to leave a bigger portion of her estate to two other children.

Upon her passing, the executors applied for a grant of probate of the formal will and the video will as codicil. Judge Lindsay admitted both to probate, stating that he was satisfied that the video satisfied the requirements for an informal will. He was likewise satisfied that the video was intended by the testatrix to “form an alteration to … her will” and that it was made with “an express claim to be ‘of a clear and sound mind.’” The court decided that her next statements were a “series of short, and apparently well-considered, disciplined statements of intent (coupled with motherly exhortations in passing) that [stood] neatly with the will as an alteration of the primary document”. The decision likewise noted that none of the beneficiaries contested the admission of the video, therefore leaving no room for doubt that the “recorded disposition [were] freely and voluntarily made.”

In a prior case, however, a video will was not admitted by the court for probate. In Cassie v Koumans [2007] NSWSC 481 the video left by the deceased was not admitted as an informal will because it simply explained what was contained in the formal will. The deceased stated “I hope that does explain in some way why I have left my will as I have” which was interpreted by the court to mean that the deceased did not intend the video to amend the formal will.

Interestingly, it was also brought to the court to decide on whether a text message would suffice as an informal will. In Re Nichol; Nichol v Nichol & Anor [2017] QSC 220, the deceased, before committing suicide, composed a text message addressed to his brother with instructions on how to dispose his assets, how to access his bank account and where to locate a small amount of cash. The text message concluded with the words “My will”. While it was not sent, the cellphone where it was composed was beside the deceased when he passed away.

The Court found that the text message constituted a “document” and that the deceased intended the text message to operate as his will before passing away. The court deduced that the message was not sent so as not to alert his brother of his plans to take his own life.

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