Publications

‘Informal’ Wills

Introduction

In an increasingly technological society where people are attempting to create wills on iPhone “Notes”, in a Word Document saved to a computer or through the use of a video recorded message, the courts have been forced to comment on what constitutes a Will.

The Succession Act 2006 (NSW) (‘the Act’) sets out that for a will to be valid, it needs to satisfy a number of formal requirements as to its execution. Section 8 of the Act allows for some exceptions to be made, where the Court may determine that a will is valid if it satisfies three requirements:

1. there must be a document;
2. which purports to state the testamentary intention of the deceased; and
3. which the deceased intended to form their will.

Can a recording be construed as a will?

The Supreme Court of Queensland has recently addressed this issue in the matter of Radford v White [2018] QSC 306. This case involved a man, Mr Schwer, who was purchasing a motorcycle and at the insistence of his de facto partner, recorded a ‘will’ prior to picking up the vehicle. In this video, Mr Schwer stated that his assets should all be distributed to his de facto partner upon his death, and noted that “Nothing, I repeat, nothing, will go to my soon to be ex-wife Nicole White/Schwer.” On the same day he was involved in a motorcycle accident and suffered significant head injuries as a result.

Mr Schwer died approximately one year later without properly executing a will under the Succession Act 1981 (Qld) (‘the Queensland Act’), which operates similarly to the New South Wales version. Mr Schwer’s de facto partner made an application that the video recording formed a valid will within the meaning of the Queensland Act. The Court was required to consider whether the video recording could satisfy the requirements of the Act.

The first question was whether a video recording could be considered a ‘document’ as defined in the Queensland Act. It was noted that the definition of ‘document’ could include:

“any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).”  (Acts Interpretation Act 1954 (Qld) Schedule 1)

Given this definition of a ‘document’ the courts found that the video recording could be considered a valid document.

The second issue was whether or not the video purported to state Mr Schwer’s testamentary intentions. In their decision, the Court noted that Mr Schwer had specifically stated that the reason for the video recording is that his partner had asked him to do a will. The Court also recognised that Mr Schwer had very specifically set out his assets and had stated that he was of “… sound mind and body…” which as a citizen of the United States, could indicate an attempt to comply with the legal formalities relating to the execution of a will. Having regard to the specific wording of the recording, the Court found that the video clearly purports to state Mr Schwer’s testamentary intentions.

The final question was whether the video recording was intended by the deceased to form his last will and testament. The Court noted that the context of the recording, the language used, the use of the phrase ”…if anything was to happen to…” and his statement that he did not plan on dying and would “…fill out the damn forms later…”, were each relevant in considering the deceased’s intention at the time.

The Court concluded that the video recording formed the last Will and testament of Mr Schwer within the meaning of the Queensland Act.

Mahoney JA once stated that:

“There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be.”[1]

The application set out above involves substantial delay, uncertainty and cost which could have otherwise been avoided.

Conclusion

This case is an interesting example of the Court’s willingness to recognise an informal will in unique circumstances. While the Courts may exercise their powers, where possible, a Will should always be formally executed with the benefit of legal advice to avoid unnecessary disputes and significant legal costs associated with these types of disputes.

Joshua Dale, Senior Associate
Connor Molloy, Lawyer