With the increasing ease of access to video recording devices, in particular the rising use of smartphone cameras, I’m sometimes asked if a video message from a deceased loved one could be used as a valid Will.
According to Slater and Gordon research, one third (34 per cent) of Australians had experienced tension or conflict in their families over the distribution of assets and inheritance under a will. Of those, 21 per cent said the feuding could have been avoided by a letter or video from the deceased explaining their wishes.
Using a video recording rather than a written Will is a very high risk strategy as the short answer to that question is ‘no’. There are a number of things you should take into account.
- A Will cannot be oral, it must be in writing. That means a video recording cannot generally be considered a valid Will.
- A video recording may be used as a way to further clarify or interpret some wishes in the Will that may be unclear.
- It would be up to a judge to decide if a particular recording is admissible in court, and to determine if the recording could help prove an issue one way or another.
- A judge may find it difficult to assess whether the deceased person in the video was of sound mind or if they were under duress when the recording was made.
- If a statement in a video recording is contrary to what is in a written Will, the written Will will prevail. For instance, if the written Will outlines that two children will receive an inheritance, but a video message includes just one, then a court would find that both children should be included.
- In some Australian States it might be possible to prove that a video is a ‘document’ under the local legislation and then convince a judge to accept the video as an ‘informal’ Will. Although not impossible in those States, there is absolutely no certainty that the courts would accept a video as an informal Will. Thus, not only would you be playing Russian roulette picking which States might consider a video a ‘document’, you would also be running a very high risk that a court wouldn’t accept the video as an informal Will.
A common problem is that Wills are often unclear about how wealth and assets are to be distributed and this can bring grieving family members a lot of unnecessary stress.
A comprehensive written Will, that is up-to-date and well-defined, ensures that the deceased’s estate is managed and distributed according to their wishes and can prevent confusion and conflicts within the family.
A video message may hold a great deal of sentimental value for grieving families, but if the deceased has prepared a valid written Will, the footage serves no real legal purpose.