Wills and Estates
In Re estate of Dora Marleny Rodriguez Navarro [2024] ACTSC 211, the Supreme Court of the Australian Capital Territory (Justice Baker) considered whether a video recorded on the deceased’s phone could be considered as a last will.
On 26 December 2023, Dora Marleny Rodriguez Navarro (“the Deceased”) went into hospital in Lima, Peru for cosmetic and abdominal surgery. Due to complications during the surgery, the Deceased passed away on 30 December 2023. The Deceased had not made a formal will, however, prior to her death, she had recorded a video on her phone. In the video she made it “clear” that her money and properties were to go to her husband, except for a “small portion” which was to go to her parents.
The video did not comply with the requirements of section 9 of the Wills Act 1968 (ACT) (“the Act”) and therefore did not constitute a formal will. The Court needed to consider whether the video could be considered as a valid last will under section 11A of the Act. In determining this, the Court considered the section 11A requirements.
Was the video a document?
The Legislation Act 2001 (ACT) defines a ‘document’ as a “record of information…from which images, sounds, messages or writings can be produced or reproduced, whether with or without the aid of anything else”. The Court determined that the video was a document under this definition.
Did the document purport to embody testamentary intentions of the Deceased?
The Court considered the “words spoken” by the Defendant and determined that they made her intentions for the distribution of her estate clear.
Did the evidence satisfy the Court that at the time the document was brought into existence, the Deceased, by actions or words, demonstrated that it was her intention that the document should, without more on her part, operate as her will?
The Court was satisfied that the evidence met this requirement for two main reasons:
1. The video was filmed shortly before the Deceased went into surgery and she used words such as “just so everything is clear”. The Court accepted this as evidence that it was the Deceased’s intention that the video constitute her will, without any further action to be taken on her part.
2. There was no evidence of other documents which contradicted the Deceased’s testamentary intention that the video constitute her will.
The Court was satisfied that the requirements had been met and determined that the video recorded by the Deceased constituted a valid last will under section 11A of the Act.
The full judgement can be read here: https://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/act/ACTSC/2024/211.html
While a video constituted a valid will in this case, obtaining advice from a lawyer about drafting a formal will might save your beneficiaries from being left out of a will time-consuming and costly litigation.
Matthews Folbigg Lawyers has a dedicated team specialising in Wills and Estates who can assist with creating a valid legal will and provide advice arising from will disputes.
For more information or advice on Wills and Estate practice and procedure, please contact Mimi Su at (02) 9635 7966 or by email at mimis@matthewsfolbigg.com.au.
