With the exception of oral wills which, in England and Wales at least, are limited to “soldiers in actual military service, and by sailors being at sea” (known as “privileged wills”), a valid will must usually be in writing, signed by the person making the will and witnessed by two independent people.
Any changes to wills often have to be made in the same way.
However, the late Wai Fun Chan challenged this notion in a landmark case in New South Wales, Australia, by making a video recording amending her written will which had only been formalised two days beforehand.
The Supreme Court in New South Wales, in considering the validity of the video will, considered carefully the interpretation of Succession Act 2006 NSW. The video did not meet the formal requirements to be considered a valid will and so could not supersede Wai Fun Chan’s earlier written will. However, it did constitute a ‘document’ and so was deemed to be an ‘informal will’. In this way the video became a codicil of the written will.
The judge went on to warn that, even in this age of technology one should be cautious of making a video will. Determining the validity of a video will and the costs involved will substantially delay processing the probate application, as evidenced by the fact that Mrs Chan died in June 2012 and the Supreme Court decision was handed down in August 2015.
