Video Wills

Proof of the due execution of the testator/testatrix’s will becomes more certain when substantiated by a video recording. For example, the video recording will show the testator/testatrix declaring the instrument to be his/her last will and testament, the testator/testatrix affixing his/her signature or mark upon the document, the required number of witnesses observing the will execution and their signing in the conscious presence of the testator/testatrix.

Establishing the main elements of testamentary capacity may be accomplished by having the testator/testatrix answer certain questions on videotape, which are intended to prove clearly and convincingly each of these elements. A large majority of the courts in the United States are in total agreement as to what the evidence must show.

1. The testator/testatrix must understand that he/she is executing a will. The testator/testatrix explaining infront of the video camera the nature of the act about to be performed is strong evidence of  such an understanding.

2. The testator/testatrix must understand the effect of making a will. A videotaped explanation by the testator/testatrix that the purpose of the will execution is to provide for the distribution of his/her property upon death would demonstrate this requirement.

3. The testator/testatrix must understand the general nature and extent of his property. The videotape can record the testator/testatrix reciting the type and description of his property.

4. The testator/testatrix must understand the persons who are the natural objects of his bounty. Explaining the details of his/her family situation on camera is the type of evidence which is likely to curtai will contests by unhappy heirs.

5. The testator/testatrix must be able to appreciate the above elements in relation to each other and to hold them in his/her mind long enough to form an orderly desire as to the disposition of his/her property. A video recording of the testator/testatrix discussing the disposition made by the will would tend to prove this important element.

The writing, which allegedly constitutes the testator/testatrix’s will, fail unless it is shown that the instrument is the document by which the testator/testatrix intended a posthumous disposition of his/her property. The videotape would show not only the testator/testatrix but also the document itself. This would be practically irrefutable evidence that the writing claimed to be the testator/testatrix’s will was the very writing held in his/her hand during the will execution ceremony.