An 85 year old widow made a formal will on 6 March 2012 with the assistance of her solicitor. Her estate was valued at $930,000.

Shortly after making she will, changed her mind. She wanted to provide special legacies to two of her eight children. She felt especially indebted to them for their support.

The widow decided not to return to her solicitor’s office to amend her will. Instead, a short time later, she made a video recording of her final intentions.

Is a video recording acceptable as a will?

After the widow died, the video recording did not meet the formal requirements for a Will under the Succession Act. It was neither made in writing, signed by the will-maker nor signed by her attesting witnesses.

It was also an issue that one of the witnesses to her video recording was a beneficiary.

The Supreme Court of New South Wales had never before admitted a video will to probate. In this case, it did.

Justice Lindsay decided that whilst the video will did not meet the formal requirements of a valid will, it was acceptable as an informal will. The video did record the testamentary intentions of the will-maker and was clearly intended to alter her first will. The Court was satisfied that the will-maker knew and approved of the statements she made in her video, and that they were made freely and voluntarily by her.

Should I Make a Video Will?

Despite the outcome, the Court noted that the beneficiaries of the estate (in this case, the will-maker’s children) had endured the following:

• extended delays in obtaining probate;
• substantial legal costs;
• the unnecessary burden of satisfying the Court’s legal requirements; and
• a heightened risk of litigation.

The Court also commented that while compliance with formal requirements may be inconvenient for some will-makers, if the wills are not made properly during their lives, the process after their deaths will be extremely costly and will impose unwanted stress and burden on the intended beneficiaries. In many cases, the intended beneficiaries are the spouses and children.

Having proper legal advice and assistance in preparing your important estate documents, such as your will, would save your spouse, children and/or other intended beneficiaries a lot of time and costs in the future.

Our experienced estate solicitors at Bay Legal will be delighted to assist you and your family with your estate planning. Please contact us on (02) 9344 0682 to discuss how we can help you.