Can you record your 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 judge­ment, 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.