Video Recording Accepted As A Will But Dont Take The Risk

In a recent Queensland Supreme Court case a video recording made by the deceased was accepted by the Court as the Will of the deceased.

In Queensland, the Succession Act 1981 requires that a Will must be in writing signed by the person making the Will (or signed by someone else in the presence of and at the direction of the person making the Will) and that the signing must be in the presence of two or more witnesses who must also sign the Will in the presence of the person making the Will.

Key takeaways

• A Queensland Supreme Court accepted a video recording as the Will of the deceased in the case discussed.
• The usual formal requirements still require a Will to be in writing, signed and witnessed by two or more people.
• The Succession Act allows a court to dispense with those formalities and recognise a “document” as the Will of a deceased person.
• The video in this case recorded the deceased’s wishes about his Estate, superannuation and his intention that nothing go to his ex-wife.
• Even when successful, relying on an informal Will can create significant Supreme Court costs, stress and uncertainty for loved ones.

These are known as the formal requirements of a Will.

However, Division 4 of Part 2 of the Succession Act provides that a Court may dispense with the formal requirements for a Will and order that a “document” forms the Will of a deceased person. 

In the case of Radford v White [2018] QSC 306 the deceased who was buying a motor vehicle that day and at the request of his partner made a video recording in which he set out what he wanted to occur in relation to his Estate.

The opening words of his video recording were as follows

“It is Monday 21 November 2016.  My girlfriend would like me to do a Will before I pick up my motorcycle. As I am too lazy, I will just say it.  Everything goes to Katrina Pauline Radford if anything were to happen to me…”.

The recording goes on to record some other wishes and how the deceased wanted his superannuation and other matters dealt with. In particular, he wanted it recorded that nothing was to go to his ex-wife.

As it turns out the deceased had a motor vehicle accident later that day and suffered head injuries but survived the motor vehicle accident.

The deceased subsequently passed away on 24 January 2018. 

His partner Miss Radford applied to the Supreme Court for an Order that the video recording was the deceased’s Will under Division 4 of Part 2 of the Succession Act. 

Under the Act a document includes “any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced…” and as such the video recording fell within the definition of a “document”. 

There are a number of other requirements which the Court are to consider under the Act before accepting that a “document” is the last Will of a deceased and in this case, the Court ultimately accepted that the video recording was the deceased’s Will and made an Order accordingly.

This case and others that have come before the Court, show that there are other ways of making a Will without having to comply with the formal requirements under the Succession Act however in all of those cases the Estate would have been put to the significant expense that is involved in bringing an Application before the Supreme Court not to mention the stress and anxiety which is usually placed upon the deceased’s loved ones when having to bring such an Application. 

We would suggest that the simplest and cheapest way to ensure that your assets are dealt with and distributed to the persons to whom you want them distributed is to have a Will properly prepared by an experienced Will & Estate Lawyer. 

 

CONTACT US

Davoren Associates can assist you in ensuring that you put in place a Legal Will that complies with the formal requirements of the Succession Act. 

Contact us to discuss your Will or estate disputes with an existing Will.

Frequently Asked Questions

Can a video recording be recognised as a Will in Queensland?

Yes. A court can dispense with formal requirements and recognise a “document”, including a video recording, as a Will.

What were the normal formal requirements mentioned, here?

That the Will be in writing, signed by the Will-maker and witnessed by two or more witnesses who also sign it.

What did the video recording cover in this case?

It set out who should receive the Estate, referred to superannuation and recorded that nothing was to go to the deceased’s ex-wife.

Why is relying on a video still risky?

Because it may require a Supreme Court application to have the recording recognised, which can involve significant cost, stress and anxiety for those left behind.

What is presented as the simpler option?

Having a Will properly prepared by an experienced Will and Estate lawyer.