28/09/2015

For the first time ever, the NSW Supreme Court has admitted a DVD to probate as a codicil to the formal will so that both 'documents' could be read together.

In the technological world that we live in, the idea of leaving a will via a video to speak to family and friends from beyond the grave may sound fun. But is it actually a good idea?

When someone passes away and leaves a will behind, the executor(s) named under the will must apply to the Supreme Court for a grant of probate.  The purpose of the application is to get the Court’s confirmation that the executor(s) can deal with the testator’s assets in accordance with the provisions of the will.

Traditionally, wills must meet formal legislative requirements to be admitted to probate. The main requirements are that the will be in writing, signed by the testator, and witnessed by at least two people present at the same time.  However, in some instances the Court is willing to treat as a will, or an alteration to a will, a document which does not comply with these requirements.  These are known as informal wills.

And that is exactly what the Court did in this case.  An 85-year-old widow had made a formal will in March 2012, when three months later she decided to make a DVD recording to make additional gifts to two of her eight children who had been looking after her.  She made that video in the presence of one of these two children and her husband.

This scenario raised two issues:

1.    could the DVD be admitted to probate as a codicil (i.e. a variation) to the formal will?; and
2.    was the gift to the daughter who assisted in the making of the video invalid because she was a witness to the will?

The Court held that the video fell within the definition of a ‘document’ and that it purported to provide the testamentary intentions of the testator.  Its failure to meet the formal requirements of a will meant it was admitted to probate as an informal codicil to the formal will.  

As for the second issue, the Court declared that the testator knew and approved of the gifts which she gave freely and voluntarily in the video and as such, the gift remained valid.

While this decision may appear to be the first step towards the recognition of video wills, the Court did have a few words of caution about relying on this type of will.  Mainly, it pointed out that disposing of one’s goods via a formal will facilitated the orderly administration of the law in this area and better served the interests of interested parties.  On the other hand, relying on an informal will was likely to lead to legal uncertainty about its validity, causing substantial delay in processing the probate application (three years in this case) and increasing the risks and costs of litigation.

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.