DVD will passes probate in NSW

Published 28 Oct 2015

The technology world is certainly upon us and it’s changing the way that we do everything. This particular notion was explored in a recent contesting will case in New South Wales.

According to the case ‘Estate of Wai Fun CHAN, Deceased [2015] NSWSC 1107’, Ms Chan died in June 2012 after living in Sydney for 23 years. Ms Chan, a widow, created a formal will for her $930,000 estate just months before her death.

However, in a similar fashion to many contesting will cases, there was an issue with the distribution of the estate. One of Ms Chan’s children believed that the formal will excluded several key figures in the deceased’s life and gave her and her sister too much power.

As such, Wai Chan became unhappy with the formal will document and wanted to change the clauses. Unfortunately, Ms Chan’s health did not allow her to return to her solicitor to prepare a codicil before her death. As such, her two children who were set to get special legacy from the will decided to take a technological approach to the situation.

The two daughters helped Ms Chan set up a DVD oral recording of her wishes which outlined the relevant changes to the will. The recording was made in Cantonese, Ms Chan’s native language.

The next step for the daughters

After her death, the two daughters quickly sought to ensure the DVD recording was considered as. The pair applied for a grant of probate for the formal will and the DVD recording was added to this application (with an English translation).

In a landmark decision, the court allowed this DVD will recording to be admitted to probate in New South Wales. This was the first time this occurred within the state. One of the key findings of this case is that the DVD was classed as a document under section 21 of the Interpretation Act 1987.

According to the court, the DVD represented a ‘record of information’ and its sounds and images were designed as a message from the deceased. As such, the court agreed that the recording was made to form an alteration to the will and that she appeared in good mental health to communicate the transcript. The surrounding circumstances to why the DVD was made as an alternative also improved the validity of the case.

While these types of cases are still rare, they will become more common as people leave messages and recordings within the technological sphere. For more information about contesting a will, contact our team of lawyers today.

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