Video transcript validated as a will

The background to Estate of Gaylene Harvey is summarised by Becroft J at [1] to [5] as follows:

The issues for resolution were:

• whether the transcript of the video was a document
• if so is it a will, and
• whether the Court is satisfied that the “document” expresses Gaylene’s testamentary intentions.

With respect to the video, which was viewed in Court Becroft J noted at [16] that “… For what it is worth, Gaylene seemed relaxed, clear, and happily participating. It seemed to me that she was reading from notes on her lap. Gaylene’s family have been unable to locate those notes. If they were available, then Mr Gilchrist clarified the notes would be the subject of this application, not the video transcript.”

The decision in Estate of Gaylene Harvey is well considered and traverses a range of authorities in addressing the recognised contemporary reality that as noted at [28] “In a modern age, where it is likely that more and more “would-be testators” will have their testamentary intentions conveyed in an audio-visual record using a cellphone or the like, a purposive approach should be taken.”

It is not the video that was validated, but rather the transcript. Importantly, the same criteria that apply to validating other documents as wills were carefully applied. The case warrants careful reading in full not just for the reasoning in the matter at hand, but with respect the to application of section 14 and the interpretation of wills.

An important caveat for those minded to record their will in video form; the delay between the video and death was considered at [59] as follows:

The concluding observations at [60] are also important these noting that “Courts will always seek to avoid intestacy and will try to recognise the will-maker’s plain intentions where they are clear. Put another way, the Court will, if possible, try to uphold a will.”

References

• Estate of Gaylene Harvey [2024] MZHC 1084
• Wills Act 2007, s 14
• Pfaender v Gregory [2018] NZHC 161
• Re O’Reilly [2018] NZHC 230
• Re Estate of Feron [2012] NZHC 44
• Abbott v Middleton (1858) 7 HLC 68, 11 ER 28
• Tate v Clarke (1838) 1 Beav 100, 48 ER 876
• Scale v Rawlins [1892] AC 342 (HL)
• Charter v Charter (1874) LR 7 HL 364
• Cotton v Scarancke (1815) 1 Madd 45
• Robinson v Beaman [2023] NZCA 468
• Mason v Mason [2022] NZHC 491
• Crawford v Phillips [2018] NZCA 208