Q. Are video wills valid?
A. Video wills, with audio, are not valid by themselves as the State of Florida requires that wills be in writing. Video wills have become useful tools as a supplement and are occasionally recommended under the following circumstances:
Proof may be needed to show that the testator actually signed the will with his signature or mark and that it was properly witnessed.
Video sometimes can be excellent proof that the testator had testamentary capacity to execute the document. During the signing of the will, the testator can acknowledge what he is signing and that he understands the effect of what he is doing. The video can also be used to show that the testator knew the extent of his property. Often a video may show the testator reciting the type and description of his property.
When certain family members are omitted from the will, the testator may make verbal statements on video explaining why these decisions were made. Sometimes family members are discouraged from contesting the will when this type of evidence exists.
Video can be used to show the lack of undue influence or fraud. With the testator explaining in his own words why decisions were made and that these decisions were made as a result of his own free will, then will contests due to undue influence and fraud are less likely.
Video wills can be helpful to interpret clauses in the written will if disputes arise. The testator can describe in his own words what he meant regarding distribution of his estate.
However, video wills are not without possible problems. In some cases, the testator may appear to be incompetent even though he is not. Some testators give extremely poor appearances or have a negative bias, which may have a negative impact on certain jurors. Video cameras may be used so that the image recorded is misleading or distorted and may not be the best evidence to prove the testator’s intent.
Another concern is that the video wills may be altered. Proper steps may be taken to store the tape away from magnetic fields, high temperature and high humidity, as well as away from those who would like to alter or destroy the tape.
Video may be used for the distribution clause of a living trust or other form of trust just as easily as it can be used for a will.