Video Killed the Really Old Law

For the first time EVER the New South Wales Supreme Court has allowed a codicil recorded by video to be admitted into probate. But don't reach for the camcorder just yet!

Whilst this case indicates the law's refreshing progress into the modern world it also emphasises the prudent course of testamentary wishes being recorded in a good old fashioned written document.

Ms Wai Fun Chan was an 85 year old woman originally from China, with considerable assets at the time of her passing. Ms Chan decided that she wanted to change her existing Will, so that it would favour two of her eight children, whom had supported her through her twilight years. Mrs Chan recorded these intentions via video recording. She passed away soon after in June 2012.

Justice Lindsay, who had worked in the Probate Division his entire career, stated that the Court had never before admitted a video codicil to probate. On 7 August 2015 last week, Lindsay J ultimately held that the video could be admitted to probate, as it satisfied the legislative requirements under the Succession Act 1987 NSW and Interpretation Act 1987 NSW and was delivered in a way that showed the testatrix, Mrs Chan, was of clear and sound mind in accordance with s8 Succession Act.

Lindsay J noted that the application for probate had been severely delayed because the codicil was recorded on video and not in writing, witnessed by two non-beneficiaries. Further, the Court ordered that the costs of the Plaintiffs, who were the two daughters that stood to benefit most from the Will, were to be paid out of the estate. As a result the benefit they now receive will be reduced considerably by the legal and Court fees incurred.

This case also highlights the expensive process of contesting an estate, and one which could have been easily avoided. Deceased estate and probate disputes are not only costly but also time consuming. These legal disputes can often be avoided by sticking to traditional and effective ways of drafting wills and codicils; which will ensure that family members are looked after as the deceased intended and have access to funds quickly after a loved one's passing. Given the significant emotional and financial cost of these disputes we strongly recommend having your Will and estate planning in order to avoid these types of scenarios.

At Gavin Parsons & Associates we offer affordable estate planning packages to ensure that situations similar to the costly dispute discussed above are avoided. If you are interested in obtaining a Will, Power of Attorney or Appointment of Enduring Guardian instrument please contact our Gavin Parsons or Harry Cotton on 02 9262 4471 or at harry@gpalaw.com.au.

Gavin Parsons

Date posted: 2015-08-14