The Wills Act 1837, which has equivalents in many Commonwealth countries, states that in order to be valid, a will must be correctly executed: it must be signed, dated and witnessed by two independent witnesses. The Act does not state, however, that a will must be written on paper, in a specific format or using certain words.
Today, with technology developing with an unbelievable speed, it may be argued that the traditional way of preparing a will written on paper is out of date.
Video wills are becoming increasingly popular. One study suggests that more than 60% of people in the UK would like to have a video will. As the law is now, a video will itself would not be valid. Nevertheless, many companies offer this service. So what is so appealing about it? It is a good method of reinforcing a written will. The testator has an opportunity to explain exactly what he intends and to give reasons why. They may elaborate on bequests in much greater detail – this is impossible within a limited written document a video will may help avoiding conflicts in the family concerning items of sentimental value. It may also be useful if the original written will is contested – the court would most likely accept it as evidence of the testator’s real intentions. A testator may even take a virtual tour around their house to show particular items, giving simultaneous directions and explanations. However, a video will cannot be accepted as an instruction for the court.
Paper is a relatively fragile material which can be easily destroyed, which is why a lot of people still leave the original document with their solicitor. It would be much easier to produce, amend and store video wills, as no physical space would be required. It would also be convenient to have as many back-ups as desired. This would afford reassurance that the will is certainly traceable and is up-to-date. Why not go completely digital?
On the face of it, this may appear a good idea, given all the benefits of digital technology over paper. But in practice, it would probably create more problems than it would solve. First of all, there is a need for a legislative framework to replace the existing rules.
Let’s imagine that a video will is allowed as an independent document. Would it really be more secure? Technology changes quickly. What if in 5-10 years’ time current digital devices are redundant, as happened with VHS players and floppy disks? It is possible that, although the file still exists, it would be more difficult to access the actual information. A tape backup is not a solution for the same reasons. Also, tape deteriorates too, so we are back to our problem of durability.
Another issue is that of storage and security. Although no physical space is required, the problem shifts to actual means of keeping a will safe. As with digital assets, there may be facilities available to store digital information. The question is how secure these facilities are. There may be issues of privacy as a result of fraudulent hacking activities, or the document may be completely destroyed – either accidentally or deliberately. On the other hand, numerous back-ups may cause disputes in case there are several versions of the will. This may be prevented by introducing strict rules as to compulsory content of a video will, much like the rules for a valid written will: the testator will have to state the date, to revoke all previous wills etc. But there is much wider scope for regulating content.
For example, would it matter if such a will is kept in a specific storage or just uploaded as a Facebook or Youtube video? It must be remembered that Facebook treats all content as its own property from the moment it has been uploaded. If the video is deleted by the website and all the contents are lost, there would be no cause of action for the estate which may be at a significant disadvantage from the resulting intestacy. There may also be videos that may have testamentary remarks but may not be wills as such – this may cause disadvantaged relatives to argue that these are codicils, amending the video will, or even that these are wills if no “official” will exists. A potentially huge area for dispute would also be the issue of privacy and public interest, particularly in cases of large estates or those belonging to famous users.
There would also be procedural issues. Currently the Probate Registry requires the original will and two certified copies of it together with the application for the Grant of Probate. A copy is always attached to the grant issued. If there is no paper version, how would proving wills work? Would the Probate Registries across the country have to be equipped with a transcribing equipment to produce a copy which may be attached to the grant? How would that assist if the purpose of the video was to more readily identify assets?
In conclusion, despite apparent benefits – not least in terms of apparent ease for the lay person to create a will – video wills may create many problems and would require major changes to legislation to govern content, storage, validity, privacy, as well as a significant investment into the court service. Perhaps it is a good idea to make a video to reinforce and/or clarify a written will. However as an independent document, a video will does not appear optimal, at least for now.