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From time to time we hear about an unusual document or other record being accepted by a Court as a person’s last Will. This may be an unsent text message, a document not witnessed correctly or a note written prior to surgery.

In a recent Western Australian case*, the Supreme Court was asked to accept 4 videos made by Peter Pitman in 2011, 5 years before he died, as his last intended Will.

Firstly, though, how should a Will be made?

Each State has laws specifying how a Will must be executed. The legislation typically requires a Will to be a document in writing, correctly signed and correctly witnessed.

When may a Court dispense with these formal requirements for executing a Will?

In Australia, unlike in many other countries, Courts are authorised to decide that in special circumstances the usual requirements for executing a Will do not apply. 

In these exceptional situations, the Court can order that a record (e.g. document, video, audio recording) is the last Will, even where the record is executed incorrectly. Typically, what is required is “persuasive proof” that the record was intended by the person to be their last Will.

In Mr Pitman’s case, the Court agreed Mr Pitman was the person in the videos and that he had the understanding necessary to execute a valid Will. In the videos, Mr Pitman spoke about giving his second wife benefits from his estate during her lifetime and stated that the balance of his estate was ultimately to pass to his four children.

However, the videos:

  • were copies, not the original
  • were of poor quality
  • froze in parts
  • did not have synchronised vision and audio
  • were halting and uncertain
  • did not have a conclusive ending.

Further, Mr Pitman did nothing with the videos other than leave them stored on his computer hard drive – he did not tell anyone about them and did not consult a lawyer. 

The Court was not persuaded that the videos were a ‘complete’ expression of Mr Pitman’s intentions regarding the distribution of his estate after his death, and concluded that Mr Pitman’s actions did not demonstrate that he intended the videos to be his last Will. As the Court did not accept the videos as Mr Pitman’s Will, Mr Pitman’s estate was to be distributed in accordance with legislation relating to the estates of persons who die without a Will.

* In the Estate of Peter Anthony Pitman (Deceased); Ex Parte Rosemary Machin Pitman & Another [2018] WASC 237 (7 August 2018)

Stephen Hardy
National Manager: Estate Planning
Equity Trustees