21 January 2019

Video Wills: valid or a virtual reality?

Further to our update last year, Wills: 20,000 reasons why not to DIY, a recent Queensland case has again highlighted the importance of having a properly drafted Will. The case illustrates the fact that while informal Wills can be accepted by the Court, the potential stress, delays and significant extra cost of getting a Court to accept an informal Will could otherwise have been avoided by ensuring there was a valid properly drafted Will in place.

Background

Radford v White [2018] QSC 306 concerned Mr Schwer who did not make a written Will, but instead recorded a video at the insistence of his girlfriend before he went off to collect a new motorcycle. In the video, he stated he left everything to her and nothing to his estranged wife, but that he intended to “fill out the damn forms later”. Mr Schwer, unfortunately, crashed his new motorcycle after collecting it, suffering a significant head injury, but did not die until 14 months later. His estranged wife then sought to challenge the video Will on the grounds it was not a valid Will because it was not intended to be his Will.

Was it valid?

The Queensland Supreme Court held in favour of Mr Schwer’s girlfriend stating that the video constituted a document, it clearly expressed Mr Schwer’s testamentary intentions and he intended it to be his last Will. The decision was based on the following reasons:

  • Mr Schwer intended that the video was to operate as his Will in the event of his death, possibly in the near future from riding his motorcycle;
  • he intended to “fill out the damn forms” at some time in the future and this did not displace his intention that the video was to operate as his Will in the meantime; and
  • the delay in him attending to “fill out the damn forms” later was explained by his head injury and associated memory loss.

Practical considerations

While the case upheld Mr Schwer’s intentions in the video, the difficult and costly legal battle may otherwise have been avoided by ensuring that he had a valid properly drafted Will in place. In many instances, it can take 12 to 18 months for a matter to be decided by a Judge, and cost many tens if not hundreds of thousands of dollars by that stage.

Having a properly drafted Will provides peace of mind and security and means that the beneficiaries can take advantage of the many potential tax saving and asset protection opportunities. By not doing so, there is the risk that the true intentions may not be achieved, and that legal proceedings may occur.

New Year’s resolution?

If you or your clients do not have a Will, or already have a Will but need to review it (as we recommend that a Will be reviewed regularly, as your intentions, assets or family circumstances frequently change over time), please contact Hall & Wilcox’s experienced team to arrange an initial no obligation meeting for us to advise you on the best strategy.

Contact

With over ten years' of experience, William helps clients to work through their succession planning goals and issues...

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James specialises in estate and succession planning for ultra-high and high net worth clients. He also has experience in estate and trust disputes including cross-border succession issues and conflicts, tax planning and related advice to trust structures for Australian and UK non-residents and probate and estate administration.

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Emma has extensive experience in advising clients in estate planning and estate administration, trust establishment, and ongoing administration, trust estate disputes and structuring for succession of ownership and control of private and family businesses...

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Sam’s practice focuses on estate and succession planning...

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Kate has close to 10 years' experience specialising in succession law including wills, testamentary and discretionary trusts, protective trusts, powers of attorney, appointments of guardian advanced health directives and probate and letters of administration.

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