In the recent decision of Radford v White [2018] QSC 306, the Queensland Supreme Court held that a video recording was sufficient to constitute a deceased man’s will.
On 24 January 2018, Jay Schwer passed away from an accidental overdose after self-administering pain killers following surgery for a motorcycle accident. At the time of his death, Mr Schwer had not executed a formal will, however had expressed his intentions in a video recording filmed by his de facto partner Katrina Radford.
The recording was made on 21 November 2016, after Ms Radford requested that he make a will before purchasing a motorcycle. In the video, Mr Schwer declared that “everything”, including “all money and super funds”, was to go to Ms Radford and that his “soon to be ex-wife Nicole White” was to receive nothing. Mr Schwer also allocated a portion of his possessions to his daughter Aleena.
Following Mr Schwer’s death, Ms Radford made an application to the court seeking orders that the recording be recognised as a document that formed his will within the meaning of s18(2) of the Succession Act 1981 (Qld). In doing so, Ms Radford submitted that the video expressed Mr Schwer’s testamentary intentions and that the court should be satisfied that Mr Schwer intended that it form his will.
Accordingly, Justice Jackson was required to consider whether the video recording constituted a document under section 18(2). Moreover, his Honour was required to determine:
- Whether the video recording stated Mr Schwer’s testamentary intentions;
- Whether Mr Schwer intended that the recording operate as his will; and
- Whether Mr Schwer did in fact have testamentary capacity.
Is the video recording a document?
In reaching his conclusion, Justice Jackson referred to previous cases in which a digital video disc and an audio recording satisfied the meaning of document as required by section 18. As such, his Honour concluded that the video recording was a document.
Did the video recording purport to state the testamentary intentions of Mr Schwer?
Justice Jackson concluded that “there was no question” that the video recording purported to state Mr Schwer’s testamentary intentions because:
- Mr Schwer stated the reason for the recording, being that his partner had requested he do a will before collecting his motorcycle later that day;
- Mr Schwer indicated that he would repeat his intentions by filling out “the damn forms” later;
- Mr Schwer used the words “but as sound mind and body”, likely indicating his appreciation of the legal formality relating to wills; and
- Mr Schwer clearly stated how and when he wished his money and possessions to be allocated.
Did Mr Schwer intend that the video recording should without more operate as his will?
Given the context in which the recording was made, the court was satisfied that Mr Schwer clearly intended that it was to operate in the event of his death. Specifically, the court held that Mr Schwer’s intention to complete the forms at a later date did not displace his intention that the recording was to operate as his will in the meantime. The court noted that the delay in actually attending to fill out the forms could be explained by the head injury sustained in the motorcycle crash and the resulting memory loss of the day the recording was made.
Did Mr Schwer have the necessary capacity?
As an informal will, Ms Radford bore the onus of establishing Mr Schwer’s capacity. In doing so, she presented substantial evidence which indicated that since childhood, Mr Schwer had functioned at a high intellectual level.
In seeking to establish the contrary, Ms White adduced evidence of Mr Schwer’s behaviour and state of mind in the months preceding his death. However, the court held that Ms White’s evidence was not relevant to Mr Schwer’s capacity at the date the recording was made, and even if it were, it did not displace the evidence that otherwise proved his capacity.
Decision
Ultimately, Justice Jackson was satisfied that Ms Radford had successfully established each of the conditions required for the video recording to constitute a will within the meaning of section 18(2). The recording was declared the will of Mr Jay Schwer.
If you are ever in the unfortunate situation of taking instructions for the will of a person who may be likely to die imminently, this case presents a useful source of the alternatives available to a written will. Despite this, section 18 relief for informal wills is not a substitute for thorough estate planning.
