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A VIDEO WILL - But at what cost?

Aug 12, 2015

A recent case in New South Wales considered whether or not a video recording could be admitted as a Will.

In all Australian States and Territories there is legislation which governs the making of Wills. In Queensland Section 10 of the Succession Act 1981 provides the formal requirements for the making of a Will, which include that it must be in writing and signed by the Will-maker and that the Will must be made in the presence of two or more witnesses.

Informal Wills

There is now also in each Australian State and Territory the ability for the Supreme Court to accept as a Will a document that does not comply with the formal requirements. These have become known as informal Wills.

In the recent New South Wales case (re Estate of Wai Fun Chan, deceased [2015]) NSWSC 1107) the Will-maker was an 85 year old Chinese widow who was born in China but resided in Australia for 23 years. She had eight adult children who lived around the world including New South Wales, Hong Kong, mainland China and the United States of America. She had prepared a formal Will with a Solicitor on 6 March 2012 in which she essentially divided her Estate between her eight children. However she was not satisfied with the formal Will which she had made as she wanted to provide a special legacy to two of her children who she felt especially indebted to for recent support. She then made a video recording on 8 March 2012 setting out the further provisions she wanted to make for those two children.

The Court ultimately accepted that the video met the informal Will requirements of the relevant New South Wales legislation and admitted it as a Codicil (a variation) of the formal Will which had been made on 6 March 2012.

This case along with others including Wills found on a computer and handwritten notes are examples of Wills which are now sometimes being accepted by the Supreme Court under the informal Wills provisions.

While the informal Will provisions may ensure that certain documents will be accepted by the Court, as a Will there are significant reasons why one should ensure that a formal Will is made which complies with Section 10 of the Succession Act. Those reasons were set out by the Judge in re Estate of Wai Fun Chan, deceased with one of the main issues being the significant costs which are incurred by the parties and the Estate in attempting to convince a Court that an informal Will has been made. In this particular instance we would estimate that the costs which would have been incurred in having the informal Will accepted by the Court would have probably been in the vicinity of $20,000 to $30,000 and possibly more.

The Judge hearing the case made the following statements which we believe are quite relevant.

  • Compliance with formal requirements for the making of a Will may involve unwanted expense and inconvenience for a prospective Will-maker but, if the task of compliance is not confronted in life, intended beneficiaries, and potential claimants on an estate, may be forced to bear a heavy burden after a Will-maker’s death.
  • The interests of all concerned in the administration of a deceased estate are generally best served by compliance with the formalities prescribed for the making of a valid Will. They are not intended to be onerous or to do otherwise than to facilitate the orderly administration of probate law.

In essence the cost of preparing a valid and formal Will in accordance with the Succession Act will seem quite insignificant if it becomes necessary to try and have an informal Will validated by the Courts.

Davoren Associates can assist you in ensuring that you put in place a Legal Will which complies with the formal requirements of the Succession Act. Contact us to discuss your Will or estate disputes with an existing Will.