Having a valid will is an essential component of comprehensive estate planning. It’s something everyone should think about – whether you’re nearing retirement age or whether you have just finished university. Succession law is a relatively settled area of law. However, a recent case hauls succession planning issues into the 21st century with the Supreme Court of New South Wales now accepting a will made by video as valid. This article will look at the possibility of a video wills under the current Australian law for creating informal wills.
Is a video will possible?
An elderly woman sat in her kitchen, carefully choosing her words of motherly exhortation and delivering her last words and testament to a camera.
In Re Estate of Wai Fun CHAN, Deceased [2015] NSWSC 1107, Wai Fun’s last word and testament, made by video, was accepted as a valid will by the Supreme Court of NSW. Wai Fun wanted to divide her $93,000 estate to her eight children. She wanted to give the two daughters who had cared for her in her final years a greater share; however, another daughter had persuaded her not to do so in the will.
Two days later, ‘acutely conscious of her mortality’, Wai Fun changed her mind and clearly recorded her last wishes on video. Wai Fun knew that a video Will might be problematic. However “she was not deterred. She expressed a strong desire to speak to her children in making her intentions known to them after her death” Justice Lindsay said.
What constitutes a valid will?
To be valid, a will must be in writing and signed by the will-maker, as well as witnessed in the presence of two or more witnesses present at the same time (section 6 Succession Act 2006).
If a will does not satisfy these requirements, it can be an ‘informal will’ under Section 8 of the Succession Act.
Is a video will an informal will?
An informal will is a ‘document’ which purports to state the testamentary intentions of a deceased person.
In Re Estate of Wai Fun Chan, Justice Lindsay held that a video was a ‘document’ (defined under section 3(1) of the Succession Act). Therefore, Wai Fun’s video will could be an informal will and acceptable to the Supreme Court.
Why it’s probably not a good idea to rush out and grab the video camera
One of the most important reasons for having a valid Will is that it significantly simplifies matters for your family and friends when you are no longer around.
If you have an informal Will, there are significant transaction costs to satisfying the court that legislative requirements have been met. These costs are met by the estate and may be an unnecessary financial burden, as the case of Re Estate of Wai Fun Chan demonstrates. All good reasons to spend the time in making a valid will – a process that with the growing availability of ‘will kits’ and other online resources is getting increasingly simpler.
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