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Will by video ruled valid by Australian Supreme Court after challenge by estranged wife

06 Feb 2019

The Queensland Supreme Court last month made what could prove to be a landmark ruling in the world of Wills and Estates. Although the ruling is Australian, and therefore not binding on our courts, Australian Supreme Court rulings are well respected by the Courts of England and Wales and are regularly relied upon as authorities in judgments.

On that basis, it is worth reciting the facts and possible implications of the case in question Radford v White [2018] QSC 306 –

The ruling concerned the late Mr Schwer and the validity of his Will.  Nothing too unusual there you may say but what makes the case particularly interesting is that Mr Schwer did not make a written Will but rather recorded a video on 21 November 2016. Mr Schwer was due to pick up a new motorcycle that afternoon and his girlfriend was insistent that he make a Will before he did. Mr Schwer had an estranged wife whom he was in the process of divorcing at the time and without a Will in the event of his death all of Mr Schwer’s assets would have gone to his estranged wife under the Intestacy Rules.

Mr Schwer was very clear in the recording that nothing should go to his estranged wife and (barring financial provision made for the daughter he had with his estranged wife) everything was to go to his girlfriend.

Just hours after making the recording,  in a tragic realisation of his girlfriend’s safety fears, Mr Schwer crashed his new motorcycle suffering a serious head injury..  Although Mr Schwer survived the crash itself, he died 14 months later having not made a written Will.

Unsurprisingly, Mr Schwer’s estranged wife claimed that the video could not constitute a valid Will given that it was not signed, dated or witnessed in the normal manner. The court however ruled in favour of Mr Schwer’s girlfriend, stating that the video constituted a “document” that clearly demonstrated Mr Schwer’s testamentary intentions.

The case highlights an ever growing issue – what constitutes a Will in an age where we have much more than paper and pen available to record our wishes?

This is something that the Law Commission in England and Wales is currently in the process of reviewing. The law that governs Wills has remained relatively unchanged since the Wills Act 1837 (over 150 years!). Following a recent consultation, it became clear that many feel the law needs modernisation to take into account the vast changes in society, technology and medical understanding that have taken place since 1837.

Rebecca Weir

Among other things, the consultation covered two key questions that were also raised by the Australian case:

  • Should we dispense with formalities for a will where it is clear what the deceased wanted; and
  • Should we pave the way for the introduction of electronic wills to better reflect the modern world?

As can be seen from the Australian case, without an update in the law of England and Wales there is a growing likelihood that more disputes will flow from “Wills” that do not meet the current strict requirements for a Will but still (a) clearly demonstrate the deceased’s testamentary wishes  and (b) were intended by the deceased to be regarded as their last Will and testament. On the flip side to this, any change to a system that has been in place for over 150 years is going to cause some friction and uncertainty whilst new rules are developed and ultimately put to the test.

Unless and until the law is reformed, it is important to ensure that your Will is up-to-date and compliant with the current requirements for a valid Will so as to minimise the risk of any future dispute. Here at Hay & Kilner our award winning Private Client team are able advise on preparation of Will and Estate planning.

Our specialist team of contentious trusts and probate lawyers are also able to assist with any disputes that may arise in connection with an estate and are well placed to advise, among other things, on the validity of Wills and the options available to concerned beneficiaries.

For more information on any of the above, or how we can help you, please contact Rebecca Weir, or call 0191 232 8345.