Video and the Testator

Wai Fun CHAN, an 85-year-old woman with eight children living throughout the world, died with property in NSW and overseas on 27 June 2012, leaving a formal will dated 6 March 2012.

After the formal will was prepared and executed she was dissatisfied with it and as she was unable to return to her solicitor for the preparation of a written codicil made a short oral statement on a DVD recording on 8 March 2012 in the presence of one of her children and that child’s spouse. The testatrix commenced her statement by recording the date it was made and stated she was “of a clear and sound mind” followed by a series of short, considered, statements.

Although she was warned that a video recording might not meet the legal requirements for a formal will. She wished to speak to her children granting each of them a legacy over and above any provision made for them in her formal will.

The application for a grant of probate by the executors of the formal will, together with the video will as a codicil was accompanied by a certified transcription of the video will in the original Chinese, and an English translation of that transcription.

The Court found that the video will does not comply with section 6 of the Succession Act 2006 NSW (“the Act”) because it is not “in writing and signed” by the will maker nor “signed” by any attesting witness. The Court found that the DVD is a “document” and was satisfied that the will maker “intended it to form an alteration to… her will” satisfying the requirements of the section 8 of the Act.

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