In New South Wales, a Will usually has to follow rules to be valid. In most cases, a valid Will must:

1. be in writing;
2. be signed by the person making the Will;
3. be signed by two witnesses who are present at the same time; and
4. be signed by the witnesses.

However, the Court understand that sometimes people clearly express their final wishes without following these technical rules. To avoid unfair results, the Court can accept an informal Will in certain situations. The Supreme Court of NSW recently considered whether a video recording could be an informal Will.

On 6 March 2012, Ms Chan signed a Will prepared by her solicitors. Ms Chan had eight children.

Two days later, Ms Chan’s son convinced her that he should receive a larger part of the estate because he had cared for her for many years. Ms Chan agreed, and on 8 March 2012, she recorded a video of herself saying her son should receive a larger share of her estate.

Ms Chan's solicitors warned her that the Court might not accept the video recording as her Will. They recommended she come back to their office to change her Will properly.

Ms Chan did not follow her solicitor’s advice. She wanted to record her final wishes in a video. She preferred to speak to her children directly, rather than write her intentions in a formal legal document. Ms Chan died on 27 June 2012. Her estate was worth about $930,000.

The Court looked at Ms Chan’s written Will dated 6 March 2012 and watched her video recording from 8 March 2012.

The Court noted that the video recording was not in writing and not signed, so it did not meet the formal legal requirements of a Will. The Court was satisfied that the video clearly showed Ms Chan's intentions and Ms Chan intended the video to change her Will. The Court observed that Ms Chan looked calm and comfortable. What she said were clear statements of what she wanted to happen after her death.

The Court made orders for the Will prepared by solicitors to be admitted to probate and the video recording be admitted to probate as a codicil. A codicil is a document that changes a Will. Even though the Court accepted the video recording, it warned that informal Wills can cause problems. They are less clear and can lead to disputes.