15 January 2019

Can a Video Recording Operate as a Will?

Chai Hoe
Chai Hoe Litigation Lawyer

The Supreme Court of Queensland has recently handed down its decision which affirms the long-standing law that a video recording could constitute a will of a deceased in certain circumstances – Radford v White [2018] QSC 306 (Radford’s case).

 

Background

On 21 November 2016, a 39-year-old man (Jay) bought a new motorcycle. His de facto partner, Radford wanted him to make a Will before he picked up the motorcycle. Jay then recorded a video in which he said what he wanted to happen with his assets should he pass away. In essence, he directed that the majority of his assets go to Radford. Jay also said in the video recording that nothing would go to his “soon to be ex-wife”, White.

Unfortunately, Jay had a road accident later that day on his newly bought motorcycle. Jay sustained serious injuries including a severe head injury as a result. Although he was subsequently discharged from hospital following surgery, he sadly passed away not long after that due to other complications.

Radford made an application to the court seeking an order that the video recording is a valid will. Jay’s ex-wife, White, opposed Radford’s application.

The question for the court was whether the video recording should be declared as a valid will of Jay.

 

The Law

In Australia, for a document to operate as a will of a deceased, it has to be in writing and signed by the testator in the presence of 2 or more witnesses present at the same time. Despite that, courts have held that in certain circumstances informal documents which do not comply with the aforementioned requirements can operate as a will of a deceased and they can include the following documents:

  • notes on a mobile phone (see Re Yu [2013] QSC 322 in which Bennett & Philp Lawyers acted for the successful applicant)
  • Microsoft Word documents (see Yazbek v Yazbek [2012] NSWSC 594)
  • video recordings (see Radford v White [2018] QSC 306)
  • handwritten documents not signed or dated (see Public Trustee v New South Wales Cancer Council [2002] NSWSC 220)
  • letters to solicitors (see Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330)
  • instructions to solicitors – Lexon Estate Kit (see Saltmer v Renrick Lawyers Pty Ltd [2018] QSC 307
  • audio recordings (see Re Estate of Carrigan (dec’d) [2018] QSC 206)

 

Decision

In Radford’s case, the Court declared that the video recording did form Jay’s will pursuant to s 18(2) of the Succession Act 1981 (Qld). In reaching this conclusion, Judge Jackson held that:

  1. the video recording was a “document”;
  2. the document purported to state the testamentary intentions of Jay; and
  3. Jay demonstrated that it was his then intentions that the document without more operation as his last will.

 

What does Radford’s case tell us?

Although informal wills may be declared valid by a court in certain circumstances, there are serious risks associated with informal wills. It is very important to seek legal assistance when preparing a will to ensure that it is valid and enforceable. Having a lawyer to draft your will does not only give you peace of mind but it will also prevent any disputes arising from your will or estate and ultimately avoid your loved ones being involved in an estate feud.

It is equally crucial to seek legal help on a timely basis when you have doubts about a will of, an estate of or even about your relationship with a deceased who might be related to you. Whether you are an executor, a beneficiary, a de facto partner, a potential beneficiary, a family member, a relative or even a friend of the deceased, Bennett & Philp Lawyers might be help you to clear some if not all of your doubts.

You can read more on the decision of Radford v White [2018] QSC 306 here.


Bennett & Philp Lawyers are legal experts who offer timely, pragmatic and cost effective legal solutions. We are great listeners and excellent problem solvers who always strive for the best outcome for you and your family.

Contact us today to speak to a member of our team and clear any doubts you may have.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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