29/06/2017

Donna is a widow and is 85 years old. Due to her deteriorating health, she is unable to attend her solicitor’s office to make a formal Will. So she decides to record a statement on DVD, stating that she wants to give a special legacy in favour of her two daughters with the help of her caregiver. 

Upon Donna’s death, the Executor of her estate is uncertain as to whether the video Will can be admitted to probate as Donna’s Will.

Informally made Wills

The Supreme Court of NSW, in the case of Re Estate of Wai Fun Chan (decd), recently considered whether a video could be admitted to probate as a codicil to the deceased’s Will.

In doing so, the Court considered the following:

1.    whether the video met the formal requirements of s 6 of the Succession Act (NSW);
2.    could the video be admitted to probate as an informal Will;
3.    whether the deceased intended the video to form an alteration to their Will.

The Court held that the DVD recording was not a formal Will as it was not “in writing and signed” by the deceased, nor was it signed by any attesting witness.

However, the Court found that the DVD recording could be admitted to probate as an informal Will of the deceased, given that the DVD recording met the definition of a “document” under s 21 of the Interpretation Act 1987 (NSW) - something from which “sounds, images or writing could be reproduced” - in this case with the aid of a DVD player.

Importantly, it could be concluded from extrinsic evidence that the deceased intended the recording to constitute her Will as the DVD recording was found to have contained the deceased’s testamentary wishes.

Should informal Wills be avoided?

Given the heightened risk of litigation following the death of the deceased, in order for the court to be satisfied that the deceased intended the informal Will to constitute the deceased’s testamentary wishes, it is not       recommended that you record those testamentary intentions by making an informal Will.

Instead, a professionally drafted Will (or a codicil to your existing Will) should be prepared to ensure that you’re your testamentary wishes can be fulfilled.

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