In these modern times, when technology often replaces traditional methods of record-making, it’s not surprising that video Wills are being considered for those wanting to express their wishes when they pass away.

However, video Wills present complications that need to be carefully considered.  In this article, I explore the challenges of using video as a Will making method, and cover common traps affecting an existing Will, which may not have kept pace with your changing circumstances.

If you are tempted to consider making a video Will, take a moment to think about how it might be received by grieving friends and family.  Would seeing your image on screen provide comfort or further distress to your loved ones?  And would those who survive you be up to the challenge of sorting out your affairs if there is any doubt about whether the video Will is valid or not?

The most important reason not to make a video Will, is that it will not be your legal Will, as a Will must be in writing. In most circumstances, a video recording will not be a valid Will. If someone was alleging a video Will was that person’s last Will or reflected their personal wishes, then a Judge would have to make that decision.  Notwithstanding the expense of going to Court, legally, it can be difficult to prove as it would, in most circumstances, be difficult to interpret the wishes of the deceased (particularly if there is any complexity) and if the deceased person was under duress or of sound mind when they recorded the video.

Any lack of clarity could result in a lengthy process through the courts to validate the video Will. Apart from the time and expense (costs are usually paid from the estate), this would surely cause additional distress for spouses or family members trying to sort things out.

Many people often view Wills as a simple document however this is not the case and we often see matters where underestimating the complexities of even a standard Will can have costly consequences that loved ones are left trying to navigate and resolve.

However, a Will is not the be all and end all of what needs to be done.  It is important to consider having an appropriate estate planning strategy and structures in place, particularly for high earning individuals, and the safest way do this is to seek legal and accounting advice. For those who have a Will, common traps include taking a set and forget approach, and not amending it as your life circumstances change.

For example, many people are unaware that marriage and divorce affect the operation of a Will and the estate and even worse separation without divorce can have substantial unintended consequences.  

It is also important to know that assets, (including superannuation) that are held in trusts are in most circumstances separate from the wishes and instructions expressed in a Will. Blended families and second and third marriages can further complicate an estate plan.

Which brings us to the bigger picture regarding your estate planning and the benefits of trusts included in your Will. Specifically, Testamentary and Super Proceeds Trusts. A Testamentary Trust activates when you pass away. In most cases, Testamentary Trusts are “discretionary” which affords the Trustee flexibility when dealing with your assets and making decisions about how they are distributed to the beneficiaries.

Discretion is crucial for Trustees who may need to consider beneficiaries who are unable to make decisions for themselves or manage their own affairs, such as infant children or people with intellectual disabilities, drug dependency, gambling issues or other circumstances.

As your superannuation will likely be a significant portion of your estate that could be subject to tax or claims by third parties, binding death benefit nominations can direct the superannuation funds through your estate into the safety of a Super Proceeds Trust in your Will.

The key benefits of Testamentary and Super Proceeds Trusts is that they provide flexibility for Trustees so they may distribute money and assets to beneficiaries as appropriate, and are therefore able to help protect your estate from unnecessary tax and unwelcome claims by estranged family members, business associates or creditors on your estate.

Will and estate planning is complex by nature, and it becomes even more so for high income earners whose careers include living and working overseas. Foreign laws and tax obligations affecting overseas assets will also need to be addressed.

Next steps…

If you have an existing Will, your next step is to check the date and if it pre-dates significant events in your life including marriage, divorce or having children, it will very likely need updating.

If you do not yet have a Will, and therefore no estate plan, may I implore you to make a call to your solicitor, or to me, at your earliest convenience.

Our process is such that we do the heavy-lifting lifting for you, which includes coordinating with your accountant and financial adviser to implement integrated strategies that protect your assets, family wealth and provide clear instructions for those you love about the legacy you wish to leave behind.

To discuss an Wills, Estates & Trusts further please contact Robert Lamb, Anna Huang or Tracy Pratt, from our Wills, Estates & Trusts team for a free initial consultation on 07 3220 1144 or email.