Home' SA 50s Lifestyle : SA 50s Winter 2015 Contents 22
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THE LAW AND YOU
Case Study: DVD Will accepted by Court
by Rosemary Caruso,
Tindall Gask Bentley
Wills and Estates Lawyer Rosemary
Caruso analyses her rare case
where a DVD Will was recognised as
valid in Court, with key lessons for
people planning their Will.
Our client approached TGB believing
that she was the Executor of her
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 fu rther.
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 docu ment to confi rm that
the DVD was still current. For us,
this raised a new question - would
the document override what was
sa id 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 Registra r.
The legal issues we had to
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
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
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.
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 "th is is my
Will" likely clarified any doubts about
his intentions, despite the fact that
the Wi II was i nforma I.
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.
The Supreme Court judgment:
In an excellent result for our client,
The Honourable Justice Gray
granted probate, resolving the three
1. The DVD is considered a
document for the purposes of the
2.lt is appropriate that both
documents be admitted to probate
as a Wi II 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 a n 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
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
The "take way" lesson: Get a
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
Th is case study clea rly demonstrates
that an informal Will only makes the
whole estate administration process
much more complex, adding stress
to you r loved ones a nd expenses for
your estate. This is easily prevented
by a properly drafted, valid Will.
Rosemary Caruso is a Wills and
Estates lawyer at leading South
Australian law firm, Tindall Gask
Bentley. Contact 8212 1077 or
Visit our website: www.sa50slifestylenews.com.au
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