The recent case of In The Estate of Leslie Wayne Quinn (deceased) [2019] QSC 99 considered this. The deceased recorded his testamentary wishes as a video on his mobile phone four years before he died. The Supreme Court of Queensland decided that a copy of the video could give effect as a Will.

What did the deceased say?

The deceased said the following in the video recording:

It’s Sunday, 26th of June, 2011. This is the, my last will, I am making by video. In the event of my death, I would like all my goods, my interests in property, 77 The Domain and Russell Island, a block of land on Russell Island, corner of Oxley and Darling Street, I’d like that, my share of those to go to my wife, Leanne Quinn. Anything, any, any money, money that I have, cash, I’d like that to go to my wife Leanne, Leanne Quinn. All of, any goods that I have or any money owing to me for any reason, I’d like, I’d like to leave that to my wife, Leanne Quinn. Also my superannuation, currently in Tasplan, I leave that to my wife. So in essence, I am leaving everything to my wife, Leanne Quinn. As far as my, what I request for my funeral, I would like a direct cremation. I have listed on my Driver’s Licence some organs that I’d like to leave, donate to people. But I would like to recant that, I no longer wish to do that. I would like to be cremated in my entirety and I’d like, I’d prefer a direct cremation. I would like my ashes to be disposed of by the funeral service. I do not want a memorial or funeral. I do not want, I especially do not want anybody to own my ashes after my death. That, I think is basically it so, this is my only Will. I may make a copy of this but it’ll be a written copy of this but it will be exactly the same as this. Ok. Thank you very much.”

What did the Court say?

The deceased’s wife tried to obtain Probate using a copy of the recording. The original video could not be accessed as the deceased’s mobile phone was password protected. The copy was located on the deceased’s computer which had backed up the mobile phone. The video was put onto a CD.

A Will must be in writing, signed by the will maker (or someone else at their direction) in the presence of two witnesses, who each sign in the will maker’s presence. If these requirements are not met, a Will can still be allowed, and is called an “informal Will”.

The Court had to decide whether the copy of the video recording was an “informal Will”.

To be an informal Will, the following must be satisfied:

  • There must be a “document” which has a wide interpretation and includes a CD;

  • The testamentary wishes must be clearly expressed;

  • It must be clear that the deceased intended for it to be their Will; and

  • The deceased must have had testamentary capacity and knew/approved the content at the time it was created.

 

The Court held that the requirements above were satisfied. The court was satisfied that the copy of the video was adequate and that the estate was too small to warrant having the password decoded.

What other types of informal Wills have been allowed?

The following have been held to be “documents”: suicide note, video tape, file on a computer, note written on a wall, photograph of notes on paper, documents on an iPhone, handwritten scribbled documents, statutory declaration, unsent text message and a will signed by someone else.

Should you record your Will on your phone?

Each case is decided on its own facts, and a recording may not be allowed in every instance. The costs incurred in having a matter heard in Court would far outweigh the cost of having a Will drafted. It is prudent to have a Will drafted by a solicitor experienced in Estate Planning.

If you are an Executor of an Estate or if you would like to discuss Estate Planning, give us a call for an obligation free chat:

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