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Is a Video Recording a Valid Will?

Wills and Estates: 03 May 2020

In Victoria there are certain requirements for a document to operate as a Will. Wills must be in writing and signed by the will maker in the presence of at least two witnesses present at the same time.

However, in some circumstances, a document may be admitted to Probate even if it does not comply with these formal requirements, if it can be shown:

  1. that there is a 'document';
  2. that the document expresses or records the testamentary intentions of the deceased; and
  3. that the document was intended by the deceased to be his or her will.

We now live in world where technology is at our fingertips and on a daily basis most of us are either on our smartphone, laptops and or computers. All these devices have the capability of recording videos. A common query is whether a video recording can operate as a valid Will.

This was considered in a recent Victorian case of Besanko v Besanko-Hoppen (as executor and trustee of the estate of Constance Besanko) [2020] VSC 180.

The deceased, Constance Besanko was survived by her 3 adult children, Robert, Mandy and Joanne.

The deceased's last formal Will dated 26 November 1986 (the 1986 Will) appointed Mandy and Robert as executors. Pursuant to the 1986 Will, the deceased's estate was divided as follows:

  1. gift of $100,000 was left to Joanne;
  2. the deceased's personal chattels were left to Robert, Mandy and Joanne in equal shares; and
  3. after payment of funeral and testamentary expenses, the residue of the estate was divided between Robert and Mandy in equal shares.

Probate of the 1986 Will was granted to Mandy (with leave reserved to Robert) on 18 November 2015.

The deceased's main asset was a property situated at 4 Bates Street, Malvern East (Bate Street property) which was valued at $1,800,000.

On 20 December 2019, Robert applied for probate of a video recording of his mother speaking to him on 8 January 2014 (the video). In the video, the deceased made statements to the effect that after her death Robert was to be the trustee and that Robert was permitted to live in the Bate Street property for as long as he wanted.

The video recording was taken by Robert on a home video camera. The video was recorded over 28 minutes and 50 seconds which was saved on a digital memory card and was split into 35 separate files.

A transcript of the video was provided to the Court. Mandy's counsel identified 'jumps' in the video which was reflected on the transcript. Some of the time jumps were as short as ten seconds, other lasted several minutes. Robert accepted that he had stopped and started the recording but denied that anything relevant was discussed in the non-recorded periods, or that he had encouraged his mother to say certain words when the video was switched off.

Robert contended that the terms of the video will appoint him as sole executor of his mother's estate and confer on him a life interest, alternatively, a right of residence, in the Bates Street property.

Mandy argued that the video did not record her mother's testamentary intentions, nor was it intended to be her will. Mandy also submitted that at the time of her mother making the video she lacked testamentary capacity.

The court considered the informal Will requirements as set out above, and came to the following conclusions.

Is the video a document?

There was no dispute by the Court that the video is considered a document.

Does the video will express or record the testamentary intentions of the deceased?

The Court's view was that it was evident from the video that the wishes expressed by the deceased were testamentary in nature and that from the conversation as a whole that her wishes were expressed in contemplation of her death.

Was the video intended by the deceased to be her will?

The Court found that the video did not satisfy this condition. The gaps in the recording were problematic. The Court pointed to the sudden changes in topic around each time jump which suggested that relevant discussions were omitted from the recording, and that the deceased appeared to be answering questions or responding to suggestions from Robert rather than presenting a continuous stream of consciousness.

The Court's opinion was that the deceased's statements were merely precatory indications of her testamentary intention as the deceased gave instructions to Robert to 'have it done properly' which suggests that the deceased intended to sign a formal document at a later stage. The deceased also indicated on the video that a lawyer could come to her to take instructions for the production of a formal will.

The Court distinguished previous cases where video recordings were admitted as informal wills because in each of those cases, the deceased made clear their intention that the recording ought to act as their Will, for example by stating on the video "This is my last Will. The Court could not find such statement made by the deceased in this video.

Did the deceased have testamentary capacity at the time of making the video will?

The deceased was 91 years at the time the video was made on 8 January 2014. Robert's evidence as to his mother's testamentary capacity was based on his own observations and he did not produce any medical evidence.

Mandy provided the Court with medical records of the deceased for the period 13 March 2013 to 31 December 2013 which showed that the deceased's cognitive state fluctuated in the year leading up to when the video was made.

The Court's view was that although the medical records were of some assistance in determining the deceased's general cognitive state leading up to 8 January 2014, it was limited and the only conclusion that can be drawn from them is that the deceased had periods of confusion and other periods of lucidity.

Neither Mandy nor Robert produced any evidence as to the deceased's cognition on the day of the video will that would assist in determining testamentary capacity at that time.

However, the Court indicated that the instances of confusion the deceased's displayed on the video gave rise to serious questions over the deceased's testamentary capacity. Taking those instances of confusion together with the deceased's age and state of health, the Court was not satisfied that the deceased was of sufficient capacity to understand the nature and effect of making a revised will.

The gaps in the video also raised doubts as to whether Robert coached or guided the deceased when the recording was switched off.

The Court dismissed Robert's application as it was not satisfied that the deceased intended the video will to be her will or that the deceased had testamentary capacity as at the date of the video will.

In conclusion, a video Will may be valid, but only in limited circumstances where the deceased has clearly expressed their intention that the video should operate as their final Will. Due to the difficulty and uncertainty in proving a video Will, Aitken Partners recommends that video Wills should be avoided, and that a formal written Will be drafted by a solicitor. If a video Will has already been made, specialist legal advice should be obtained prior to anyone applying for Probate of the video, as there may be adverse costs consequences if the video is found not to be a Will.

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