In episode 13 of our podcast, Growing Stronger, Tanya Chapman discusses cases of informal wills – that is wills that don’t quite meet the legal requirements to be a valid will, in particular, the requirements that the will be in writing and signed by the testator in the presence of two witnesses.
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Case: Re Marion Moyne Demowbray (unreported Burns J No 2443 of 2018); Re Estate of Carrigan  QSC 206; Re Estate of Wai Fun Chan  NSWSC 1107; Estate of Peter Anthony Pitman  WASC 237
Warning: this episode discusses cases of suicide that might be triggering. Listener discretion is advised.
We’re looking at a couple of cases from various jurisdictions today – in the different jurisdictions, different legislation applies.
While this podcast is aimed to be informative, it is not intended to be a substitute for legal advice. For any matter we discuss, we summarise, skip over parts that may be too technical and only generalise. You should still see a solicitor for complete advice that relates directly to your particular situation.
Today we’re going to look at wills that have not been written – wills that are video recordings and voice recordings. We’re going to look at whether these can be enforced and demonstrate how not doing a written will can cause your estate significant delay and additional expense.
Case #1: Re: Marian Moyne Demowbray
In May 2017, Marian Demowbray was in hospital and not expected to live. She hadn’t done a will and with the help of some friends filmed a video will. She was given the opportunity to do a formal will with a lawyer, but refused. Marian died 12 days after having made her video will. The matter was taken to the Supreme Court of Queensland to determine whether the video recording was an informal will that could be admitted to probate.
Case #2: Re Estate of Carrigan  QSC 206
In January 2017, the husband died in his home from a self-inflicted gunshot wound. At the time, he was involved in a number of legal disputes in relation to his business. Just before he died, the husband left a voice mail on the mobile of his friend and about 30 minutes later also did an audio recording on a mini tape recorder of what he wanted to happen to his assets after his death. The wife applied to the Supreme Court for orders that the tape recorded message formed part of the husband’s last will.
Case #3: Estate of Peter Anthony Pitman  WASC 237
Peter Pitman died without a formally valid will, but after his death, 4 video files were found on his computer. The original document is all important, and that applies even if the original is not a written document. In this case, the Registrar was presented with a USB thumb drive that had the four video files on it. The applicants stated that they had found the four video files on a hard drive the deceased had attached to his computer. So the court noted that they hadn’t been given the original, but a copy. The other problem was the quality of the recordings. The video and audio were massively out of sync. This made creating an accurate transcript pretty impossible. Could any of the 4 video files constitute an informal will?
Case #4: Re Estate of Wai Fun Chan  NSWSC 1107
This case brings up another interesting conundrum with informal wills. With a written rule, the testator needs to sign before two adults, who also sign the will affirming that they saw the testator sign. There is a rule that if one of the witnesses is a beneficiary in that will, the gift to them fails. What does this mean when the will is a video will and the person behind the camera – who could be considered the witness – is a beneficiary? Does the rule apply? In this case, the witnesses to the making of the video will were not only present, they were directly involved in the making of the video which the Court found made them as involved as the attesting witnesses that would sign as witnesses on a written will.
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