Is an audio or video recording an acceptable Will alternative?

Published 05 Jul 2018

With the world increasingly moving online, videos and audio recording are becoming an increasingly popular form of content for sharing information. This following means visual and audio methods of estate division are increasingly being used in lieu of a formal, written Will. But are these mediums acceptable alternatives?

The appeal of audio and video
These mediums hold a number of advantages over written content:

  • Visual and audio content appeals to multiple learner types, meaning it's likely a greater number of people will process the information than with a written document.
  • Video and audio recordings can communicate more information in the same space of time than a piece of writing.
  • These mediums tend to hold people's attention for longer, an essential quality with attention spans shrinking. Microsoft Canada research suggests our focus has now dropped to eight seconds - less than that of a goldfish. This is clearly vital when you're communicating long and complex details about your estate division.

Recordings in the Courts
Leaving an audio or video recording, even just as supporting documentation, is risky.

In 2015 (Estate of Wai Fun, Chan) the Supreme Court found that although the video submitted by the Will-maker was not legally binding, it was still considered an 'official' document. This meant the DVD was treated as an amendment to the official Will and because the Will-creator freely and voluntarily made the video, a disposition was made in favour of a person who witnessed and assisted making the video Will.

On the other hand, in 2007 (Cassie v Koumans & Ors) the NSW Supreme Court dismissed a plaintiff's claim to rectify his mother's Will based on a video recording. The plaintiff claimed the recording was intended to be a codicil legally changing provisions in her Will, but the Court instead ruled that the video was merely meant to explain a number of decisions in the document, rather than make any formal changes.

As you can see, by using an audio or video recording as an alternative to a written Will, you run the risk of litigation being made against the legitimacy of the content.

Is audio or video an acceptable Will alternative?
Despite the obvious benefits of audio or video as a communication medium, NSW legislation clearly states a Will must be a written document in order to be legally valid. While a video recording or audio file can be used to further clarify or interpret the meaning of what you say in your Will, ultimately any non-written accounts can only be used as background evidence.

This rule also applies to additions, amendments or removing provisions from your Will - only written changes that have been signed and witnessed can be accepted as legally binding.

It's better to prepare all testamentary documents with the assistance of an expert to ensure they're legally binding. For more information, contact Gerard Malouf & Partners Will & Estate Lawyers.

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