The New South Wales Supreme Court has, for the first time, granted probate of a Will where the codicil to it was in the form of a video in the case of Re estate of Wai Fun Chan (dec'd).
The Court had never before admitted a video will to probate, nor considered the relationship between sections 8 and 10 of the Succession Act 2006 (NSW) (NSW Act). Section 8 sets out the circumstances under which the formal requirements for execution, alteration or revocation of wills can be dispensed. WA’s analogous provision is section 32 of the Wills Act 1970 (WA). Section 10 of the NSW Act sets out the circumstances under which an interested witness can benefit from a disposition under a Will. The equivalent provision in WA legislation has been repealed.
The deceased was a Chinese widow (Deceased) who had engaged a solicitor to prepare her Will (Formal Will). Two days after executing her Formal Will, the Deceased wanted to amend it by granting special legacies to the first and second plaintiffs in acknowledgement of the additional support they provided to the Deceased.
Due to time and circumstances, the Deceased was unable to return to her solicitor’s office, and so sought to amend her Formal Will by a video codicil. Assisted by the second plaintiff and the second plaintiff’s spouse, the Deceased made an oral statement recorded on video.
The plaintiffs, as the executors, sought a grant of probate of the Formal Will, together with the video as a codicil. They accompanied their application with a transcription of the video in original Chinese, and an English translation certified by a registered translator.
That one of the witnesses to the video codicil was named as a beneficiary and executor, whilst noted and considered, was not identified as an issue which operated against the application to admit the informal codicil.
The Court admitted the video as an informal codicil to the Formal Will.
The Court noted that in the modern administration of the Court’s probate jurisdiction, a premium is placed on “substance over form in form in ascertaining the testamentary intentions of a deceased person, and in seeing that his or her beneficiaries get what is due to them”.
The Court held that the Deceased:
1 clearly made the video voluntarily and “manifestly” knew and approved of the dispositions she was making; and
2 made well-considered, calm and clear statements of intent, which were reinforced by extrinsic evidence of the circumstances and lack of objection from any other beneficiaries.
Sections 6, 8 and 10 NSW Act
A video will does not meet the requirements for a formal will as set out in section 6 of the New South Wales legislation, nor would it under section 8 of the Wills Act 1970 (WA). Both sections require a formal will to be in writing, and so do not permit a video recording. However, a video falls within the NSW and WA legislative definitions of a “document”, and so may be admitted as an informal will.
In this case, section 8 of the NSW Act enabled the Court to dispense with the execution and alteration requirements and class a “document” not executed in accordance with the NSW Act as part of the Will as it was satisfied the video was intended to alter or form part of the Will.
Section 32(2) of the Wills Act 1970 (WA), analogous to section 8 of the NSW Act, also permits a document “purporting to embody the testamentary intentions of a deceased person” to constitute a Will or alteration to a Will, even where it has not been “executed in the manner required by this Act”.
Section 10 of the NSW Act provides that a disposition witnessed by an interested party is generally void. Such a disposition will not be void if all persons who would benefit from its avoidance consent in writing to allow the disposition, or if the testator knew and approved of the disposition and made it freely and voluntarily. The Court placed great weight on the Deceased’s manifest approval of her dispositions in the video, and ensured her intentions were upheld by not finding the video void, despite being witnessed by an interested party. The now repealed section 13 of the Wills Act 1970 (WA) was WA’s equivalent provision. Section 13 was repealed due to concerns that it prevented intended beneficiaries from inheriting in circumstances where, by innocent mistake or oversight, they witnessed a Will, and that would not give effect to the testator’s obvious intention.
Lavan Legal comment
A similar result may be achieved in WA relying on section 32 of the Wills Act 1970 (WA). A video would fall within the definition of a document purporting to embody testamentary intentions under section 32, and thus would be capable of constituting an informal will or codicil which can alter a formal will.
Although the Court accepted the Deceased’s video as a valid codicil to the Formal Will, Lindsay J issued a note of caution about the substantial costs and delays in processing the probate application to others considering using his format. That the Deceased died in June 2012 and this decision was not handed down until August 2015 is itself evidence of this.