Wills in the digital age – TGB’s Rosemary Caruso analyses her rare case where a DVD Will was recognised as valid in Court, with key lessons for people planning their Will.

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The Story

Our client approached TGB believing that she was the Executor of her brother’s estate.

Our client’s brother had produced a DVD Will. A DVD Will is very rare and would be complex because the Will wasn’t “in writing”. There were no guarantees that the Will would be deemed valid and we would need to investigate further.

Later, our client gave us a document from her brother to accompany the DVD. The deceased had expressed an intention to finalise his Will with a lawyer, but never did, so he had written a document to confirm that the DVD was still current. For us, this raised a new question – would the document override what was said in the DVD?

Our client had been told by her brother that she was the Executor and beneficiary, but this wasn’t clearly stated on the DVD. Our advice to our client was that confirming the validity of the Will and the role of the Executor may require a long application process, and it may need to be decided by a Judge instead of a Probate Registrar.

The legal issues we had to consider

Were there any precedents?

There is a relevant case, Mellino v Wnuk (2013) in Queensland, which is the only other Australian case involving a DVD Will. South Australia has different legislation and definitions to Queensland, so we could not just rely on this case.

What is a “document”?

The savings clause in South Australia’s Wills Act to have an informal Will validated says that a Will has to be a document, so we needed to define what constitutes a “document”. In the Interpretations Act there is a definition for a “document”, and it included recordings. Therefore it appeared likely that the DVD Will would be found to be a document expressing the intentions of the deceased. We expected that the Probate Registrar would assess our summary and refer the matter onto a Judge. We engaged a Barrister to help us provide submissions to the court.

Consenting parties

The deceased’s other siblings consented to our application, which was important. If any of the family members disagreed, the matter would not have been as clear cut. We probably would not have been able to apply to the Probate Registrar and would’ve likely had to go through the Supreme Court. There would’ve potentially been eight defendants (the siblings), and significantly more costs to the estate. However, the deceased’s recorded statement of “this is my Will” likely clarified any doubts about his intentions, despite the fact that the Will was informal.

Informal Wills

Since Section 12(2) was added to the Wills Act in 1975, it has not been uncommon for informal Wills to be admitted to probate, including writing on walls, drink coasters, notes and lists. The document just needs to express the testamentary intention of the deceased and the deceased needs to have intended the document to be his or her Will.

The major difference between this case and the other informal examples is the deceased’s message was recorded, not written.

Who is the Executor?

The beneficiaries were the client, her husband and two children however no one was expressly appointed to be the Executor of the estate.

Our team believed there was an argument to say that our client was the Executor “according to the tenor” (a person not named Executor but given the same or similar responsibilities) – given that the deceased gave our client instructions for his estate, he wanted her to be the Executor.

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The Supreme Court judgment:

In an excellent result for our client, The Honourable Justice Gray granted probate, resolving the three important issues:

1. The DVD is considered a document for the purposes of the Wills Act.

2. It is appropriate that both documents be admitted to probate as a Will of the deceased for the purposes of the Act.

3. The applicant (our client) is appointed as Executor by the tenor.

The judgment allowed the use of very few words for the appointment of an Executor. It was just one sentence in a full page of transcript from the deceased; “Keep what you want … sell what you want, enjoy, keep the money”.

What happens next:

Now, we have moved on to the usual process of administering the estate with our client as Executor. We are now where we would’ve been a year ago if the deceased had produced a valid Will with a lawyer. The extra time that has to be taken with an informal Will creates extra expenses for the estate, not just in legal and court fees but also managing the estate – covering the cost of a house, dealing with frozen bank accounts and other expenses that build up while the legal issues are sorted out.

It took six months to have a Hearing and then another couple of months to receive the judgment. At the time of writing we are over a year after the death, which we consider to be a relatively fast turnaround given the complexities. If we didn’t have the consent of the eight siblings, the matter would have dragged out for much longer.

The “take way” lesson: Get a valid Will.

You should now be aware of the importance of a valid Will! Even though DVDs, iPhone notes, post-it notes and other informal documents have been admitted to probate, we do not recommend going down this path. This case study clearly demonstrates that an informal Will only makes the whole estate administration process much more complex, adding stress to your loved ones and expenses for your estate. This is easily prevented by a properly drafted, valid Will.

For advice about your Will or Estate, contact your nearest TGB office or start your Will online here.

On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.