By Stanley Drummond, Thomson Geer

The Supreme Court of NSW (Lindsay J) has admitted to probate a codicil to a will in the form of a digital video disc (DVD) recording. This appears to be the first time that a “video will” has been admitted to probate in NSW. The case is Re Estate of Wai Fun Chan (decd).

The facts
Mrs Chan died in Sydney in June 2012, aged 85 years. She had been born in China but lived in Australia for 23 years before her death.

On 6 March 2012, she executed a formal will, in English, prepared by a solicitor. She had wanted to make a special legacy in favour of two of her daughters above and beyond the provision made for her eight children generally, but one of those daughters, acting against self-interest, had dissuaded her from doing this in that formal will. 

Two days after making the formal will, on 8 March 2012 she made a short oral statement in Cantonese that was recorded on DVD. In this statement she said that she wanted to give a special legacy in favour of the two daughters (as referred to above).

The judgment

The court noted that Mrs Chan had commenced her oral statement by recording the date it was made (8 March 2012) and an express claim to be “of a clear and sound mind”. That opening declaration was followed by a series of short, and apparently well-considered, disciplined statements of intent (coupled with motherly exhortations in passing) that stood neatly with the will as an alteration of the primary document. Her presentation was “calm, measured and at ease with the surroundings”. 

The court said that the form of the video will, reinforced by extrinsic evidence as to the circumstances and manner in which it was made and the absence of any objection from adverse interests, left no room for doubt about her knowledge and approval of the recorded dispositions, freely and voluntarily made.

The court was satisfied that the video will met the requirements for admission to probate as an “informal will” under s 8 of the Succession Act 2006 (NSW) (as opposed to a “formal will” under s 6). 

The result

In the result, the court ordered that the formal will dated 6 March 2012 and the codicil made on 8 March 2012 (in the form of the DVD recording) be admitted to probate. 

Implications for superannuation trustees

In the author’s view, the requirements for a valid binding death benefit nomination prescribed by reg 6.17A(6) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) — in particular, the requirements that the nomination be “signed” by the member and that it contain a declaration “signed” by two witnesses [1] — preclude a DVD recording of a member ever constituting a valid binding death benefit nomination.[2]

However, where there is no valid binding death benefit nomination, a DVD recording of the member is a matter that a superannuation trustee could take into account in exercising its discretion as to the manner of payment of the death benefit. A trustee could look to a formal will under s 6 of the NSW Succession Act (or the equivalent provision of the particular state or territory), a DVD recording of the member, or any other statement by the member as a source of information as to the member’s wishes.

[1] Leaving aside situations where one person can sign for another, a convenient starting point for discussion of what is meant by the word “signed” is Goodman v J Eban Ltd [1954] 1 QB 550 ; [1954] 1 All ER 763 ; [1954] 2 WLR 581, where Denning LJ said at 561–2 that when a document is required to be “signed by” someone, what is meant is that “he must write his signature with his own hand”.

[2] Arguably, a DVD recording is a notice “in writing” for the purposes of reg 6.17A(6), and so the “in writing” requirement is met. “Writing” is defined in s 2B of the Acts Interpretation Act 1901 (Cth) in the following terms: writing includes any mode of representing or reproducing words, figures, drawings or symbols in a visible form.

Note: Originally published in the Australian Superannuation Law Bulletin Vol 28 No 3-4