A phoney Will
Posted on April 05, 2018
The outcome of a recent Queensland case may potentially impact the way people record their dying wishes.
This landmark case, the first of its kind, involves a woman on her death bed in hospital filming her testamentary intentions on a mobile phone. The underlying question is does this constitute a legally valid Will? If decided in the affirmative, this could have severe ramifications for Estate Planning lawyers as clients may view this as a way to save on legal fees. If this mode is accepted and adopted however, the same problems that occur with ‘homemade Wills kits’ will no doubt ensue.
In this case, the deceased (in the presence of two friends) video recorded her Will for six minutes on a mobile phone. Whilst the Will clearly departs from the formal requirements of ‘being in writing’ and the inherent signing obligations the Court has discretion to dispense with any execution requirements. The recording of the Will was observed by two independent adult witnesses who did not benefit under the Will. It was recorded 12 days before the deceased passed away and there were no issues pertaining to the testator’s mental capacity (as confirmed by a doctor).
The deceased wanted to leave her house and dogs to a friend as she knew that friend would be respectful of her wishes. Further assets belonging to the deceased were gifted to her other friends. The deceased was also clear that she did not want her sister to contest her estate.
The main reason for the deceased recording her Will on a mobile phone was that she did not want to pay for a lawyer to prepare a written Will.
In hearing this matter the Judge stated “Having seen the footage I have no doubt the deceased had testamentary capacity at the time and she was attempting to express her testamentary intentions”. Previously DVD recordings, an unsent mobile phone text message and an electronic note on an iPhone have all been accepted as final Wills in Queensland which should theoretically prove favourable for this case.
The Judge is yet to hand down his decision in this matter but stay tuned to learn the conclusion.