In June 2011 Leslie Quinn made a video recording on his iPhone he called his Will. It recorded his wishes in relation to the disposition of his property after his death as follows:
“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…. 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 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.”
Leslie took his own life aged 53 in June 2015; after suffering from depression for several years leading up to his death and although he sought medical help had ceased taking medication. Leanne was married to Leslie for twenty years and was the mother of two of his three sons; they had been separated for two years before his death but they had not divorced.
Leslie was survived by three sons: Jacob, Samuel and Callan aged 23, 19 and 18 at the time of his death.
Leanne sought a declaration that the video recording was the Will of Leslie and a Grant of Letters of Administration with a copy of the transcript of the recording attached.
Section 10 of the Succession Act 1981 (Qld) (the Act) sets out the formal requirements that a Will be in writing and signed in the presence of two witnesses. The video recording does not meet those requirements; Leanne submitted that the video recording as contained in a copy on the CD may be admitted to probate as an ‘informal Will’ if the court finds that it meets the requirements of s 18 of the Act.
If the Court determines that the video is an informal Will Leanne inherits the whole of Leslie’s estate. Alternatively, if the Court is not satisfied that the video meets the requirements, Leslie died intestate and the estate would be distributed to Leanne and Leslie’s three children.
Although the execution requirements of s 10 of the Act have not been fulfilled, the Court was satisfied the recording on the iPhone was a document within the meaning of the Act.
The Court applied the test for testamentary capacity as set out in Banks v Goodfellow and was satisfied that Leslie at the time of creating the video recording, understood the nature of the act of creating a Will and its effects and understood the extent of the property of which he was disposing. In the circumstances of this case the Court was satisfied that Leslie was mentally competent, knew and approved the contents of the will.
Although the video recording was made before Leslie and Leanne separated, and extensive searches were made, no other documents have been found. The Court found no evidence that Leslie intended to revoke or alter the terms of his Will in the period between the date of the recording and his death.
It is not uncommon that informal Wills are admitted to probate, but these can cause delay and increased legal costs for the estate.
Additional costs can be avoided by preparing a Will that clearly demonstrates the Will maker’s intention. This doesn’t necessarily require instructing a solicitor to prepare a document however the language of the document must be clear. Importantly it is better to have a document that clearly outlines your intentions to provide some comfort to your loved ones at a difficult time in their lives.