CAN YOU MAKE A WILL ON VIDEO? FORMALITIES – MAKING A WILL IN AUSTRALIA

Basically, a Will is not valid unless it is in writing, signed by the Testator in the presence of at least two witnesses present at the same time, and who attest and sign the Will in the presence of the Testator. Other problems or issues may invalidate a Will, but this is fundamental to a good starting point.

A Will does not necessarily have to be a single document, and can be, or include a number of testamentary documents. The Will of a deceased could be made up of a collection of documents to be admitted to probate.

There may or may not be good reasons to have a number of document in dealing with property. The most usual would be a codicil as an amendment to a previously drafted Will, although the two documents together would then technically constitute one will. Careful consideration needs to be given to any scheme whereby a number of documents are to be used as, or to constitute a Will.

Of course a valid Will does not necessarily mean it will guarantee that your property will be dealt with as you intended. The reasons for this are many and varied.

In what circumstances could the Court dispense with the requirements for execution, alteration or revocation of Wills?

Importantly, the Court must be satisfied that the person intended submitted documentation to form his or her Will. In making a decision the Court may, in addition to the submitted document, have regard to any evidence relating to the manner in which the document was executed, and any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

Must it however, be a document as such? The word document in this section includes anything from which sounds, images or writings can be reproduced with, or without the aid of anything else. This is due to the definition which adopts the definition of document in the Interpretation Act 1987 for the purposes of this section.

As stated, a Will must be in writing, but what about a Video Will? Perhaps a DVD, or an electronically stored Will in a camera memory would be the more modern equivalent. This brings us to the issue of Informal Wills. (Informal Wills are dealt with in section 8 of the Succession Act 2006.)

A video or electronic Will is not indeed valid, but it may be admitted to probate provided a Court is satisfied it incorporates the testamentary intentions of the deceased. It is of course much more complicated given various evidentiary rules, and could initiate a Court case which could be expensive and uncertain.

The upshot of this is; do not to make an electronic Will or shoot one on your phone camera. It could well prove to be ineffective, keep the distribution of your estate held up for years, and would undoubtedly be expensive.

Your Will is an important document (or set of documents) that should not be left to chance. See your solicitor for a formal Will then, if you must, make a video for your family for posterity..

(The formal requirements for a Will are contained in section 6 of the Succession Act 2006.)