In the Estate of Wilden (Deceased) [2015] SASC 9

On 30 January 2015 Justice Gray of the Supreme Court of South Australia held that a DVD may be a document for the purposes of section 12(2) of the Wills Act 1936 (SA) and granted probate of a transcript of that recording.

Background

The deceased died on 22 January 2014. He did not leave a will executed in accordance with section 8 of the Wills Act 1936 (SA). Instead, he left a DVD and a typed document dated 16 February 2011.

The DVD contained video footage of the deceased which appears to have been made on 11 May 2005. In that DVD the deceased recorded himself stating that it was “somewhat of an official last will and testament as I don’t have a written document anywhere at this stage” and that it was “some kind of an official record of how things should be distributed”. He went on to state that he wanted everything to go to his younger sister Sandra, her husband Michael and their two children and that Sandra could keep what she wanted, sell what she wanted and enjoy and keep the money.

Subsequently, the deceased also provided directions in a document dated 16 February 2011 as to his burial and stated “This is an official last will and testement (sic) for myself Wayne Wilden. This is to add to my video of my last will and testement (sic) recorded on 11.5.05.”

He also went on to state that “I would like to officially record that my will is that everything I own goes to my younger sister Sandra Carpenter and her husband Michael Carpenter and my two nephews (J) and (S)”.

Sandra sought orders for the admission to probate of the typed document and the written transcript of the words recorded in the DVD pursuant to section 12(2) of the Wills Act. The applicant submitted that the deceased intended that the typed document and the DVD would jointly comprise his last will.

The deceased died a bachelor without any children and his parents had predeceased him. He was survived by nine siblings who would equally be entitled to an interest in his estate if it was administered in accordance with the laws of intestacy. Apart from Sandra, each sibling provided a written consent to Sandra’s application.

Justice Gray was guided by the Acts Interpretation Act 1915 (SA) which defined a “document” to include “any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device”. As there was no contrary intention in the Wills Act that would prevent this general definition of “document” it was held that the DVD was a document for the purposes of the Wills Act which was consistent with a liberal construction that is to be accorded to remedial legislation such as section 12(2) of the Wills Act. He was therefore satisfied that both documents expressed the deceased’s testamentary intentions and he intended them together to constitute his will and that they ought to be admitted to probate.

Comment

In a previous Wills Watch article of “My iPhone Will” we drew attention to a will documented on an iPhone as a document capable of being admitted to probate. It is unclear from this decision whether any evidence was given that the deceased made the DVD recording free of any coercion as was the case in “My iPhone Will” but it is a further example of the Courts in Australia being prepared to admit to probate unconventional testamentary documents.