A Phoney Will (Part 2)
Posted on July 18, 2018
A few months ago we wrote about a case in Queensland involving a woman on her death bed in hospital filming her testamentary intentions on a mobile phone.
The recording of the Will was observed by two independent adult witnesses who did not benefit under the Will and there were no issues surrounding the testator’s mental capacity. The Court agreed to dispense with the formal requirements of the Will ‘being in writing’ and the usual signing obligations.
The testator was clear and concise in her instructions which even included an exclusionary clause (she did not want her sister contesting her estate). The main reason for the deceased recording her Will on a mobile phone was that she did not want to incur the costs of a lawyer to prepare a written Will.
The question that the Court had to determine was whether this constituted a legally valid Will.
In this landmark decision, the Judge ruled that the video recording comprised the deceased’s final legal Will. Despite this decision being the first of its kind, the Judge was quick to deter others from adopting a similar approach stating “No one should be encouraged by this, or other decisions of the court, to freely embark on making wills other than in accordance with the formal requirements of the Act”.
Although the deceased avoided the cost of paying for a Will, her estate suffered in the end. The cost of determining the validity of the mobile phone Will depleted the assets of her estate quite significantly to the detriment of her beneficiaries.
There may be times that call for a Will to be documented and recorded on a mobile device. However, it should certainly not be a rule of thumb. Spend the time and the money to have your estate planning carefully drafted otherwise your estate (and those you leave behind) may ultimately pay the price.