Where there’s a will

by Christine Long | 01 Jul 2019

Is a video will for you? Here are the modern ways to make sure your final wishes are respected.

Tempted to put your final thoughts about the distribution of your assets on video? In the days of all things digital where we can translate foreign languages instantly and do our banking on our phone, some online services are promising “instant wills” by recording a video via webcam or filling out forms on an app.

But there’s a difference between stating your intentions and what makes a will legally valid.

Stephen Hardy, national manager estate planning, Equity Trustees, says to be valid a will must comply with the appropriate state laws. “This usually means that a will needs to be a document in writing, correctly signed and correctly witnessed,” Hardy says.

Although Australian courts are authorised to decide that in special circumstances the usual requirements for executing a will do not apply, a recent case in Western Australia shows video recordings will not necessarily be acceptable.

The Supreme Court was asked to accept four videos made by Peter Pitman in 2011, five years before he died, as his last intended will. “As the court did not accept the videos as Mr Pitman’s will, his estate was to be distributed in accordance with legislation relating to the estates of persons who die without a will,” Hardy says.

Dying without a will

If you pass away without a will or it’s invalid, your estate will be distributed to your family according to a standard formula, which varies from state to state. If you die intestate with no living relatives, your estate is paid to the state government.

Where a video recording is used to supplement or elaborate on a written will, it can still result in confusion. If the information on the video and in your will isn’t identical, the will can be left open to challenges or even be revoked entirely.

According to Equity Trustees, a good will is meticulously planned, comprehensive, deliberately and carefully worded and protects you against any risk of ambiguity or misinterpretation, wilful or accidental.

Perhaps you already have a will. But there can still be many reasons why it may no longer accurately reflect your wishes. For instance, if you have married; divorced; separated or entered a de facto relationship; had children or grandchildren; or if your spouse or beneficiaries pass away; your executor is no longer available; or if you have a significant change in financial circumstances including purchasing additional assets or investments.

Even if you decide to disinherit immediate family members or dependents, they may still be able to contest your will. And leaving them a smaller portion of your assets can still leave the way open for your will to be challenged.

Time for an update?

As a rule of thumb, a will should be reviewed and updated every five years, unless there have been significant changes in your personal or financial circumstances.

Situations that are likely to require legal advice to ensure your will is valid and reflects your wishes include blended family situations, even if it’s your children who have remarried and created a blended family of grandchildren. Likewise if you have stepchildren or other non-relatives who are, or might claim to be, dependents.

Another tricky situation can arise if you have property that you wish to give to someone, which would otherwise automatically go to someone else, such as a joint owner. Also, if there’s a gift of shares or other property that you sell before you die, that too can be complicated.

Once your paperwork is in order, it will help your executor and family if you make a list of your legal documents and where they are kept. This includes bank accounts, mortgage and insurance information, trust deeds, birth, marriage and divorce certificates, superannuation, and details of any investments.

Don’t forget that your will is only one aspect of estate planning preparation. If you have superannuation you must have a current binding nomination, otherwise the selection of beneficiaries may be left to the discretion of the trustee of your fund.

An enduring power of attorney and Advance Care Directive should also be considered. And remember, no matter the situation, it’s best to seek professional legal advice, as every scenario is different.