Re Stuckey [2014] VSC 221

The deceased died leaving her estate to 2 children and 6 grandchildren. The deceased’s lawyer was named executor of the estate, which included two units worth $500,000 and $400,000 respectively. 

The deceased’s younger sister (Rosemarie) alleged that she had assisted the deceased in making an informal codicil. The informal codicil sought to leave the first unit, worth $500,000, to the deceased’s other sister, Jeanette. 

The informal codicil was not signed by the deceased, but a video recording of the deceased reading the codicil was made. The deceased’s doctor had also provided a statutory declaration that confirmed that the deceased was competent to make decisions regarding her will at that time. An application was made by deceased’s executor to have the informal codicil included in the will.

The inclusion of the codicil in the will would have reduced the estate available to the deceased’s children and grandchildren by $500,000.

The Supreme Court of Victoria concluded that there was unsatisfactory evidence that the deceased had intended the unsigned codicil to form part of her will. Importantly, Justice McMillan held that the video evidence did not show the deceased agreeing, commenting or in any way understanding the informal codicil’s substance. Consequently, the application was refused.

As noted in this judgment, a video recording will only support an application for probate of an informal will or codicil if it demonstrates the testator truly understood the document’s effect and indicated approval of its contents.