The interest in video wills has gained traction since the pandemic for obvious reasons. It sounds ideal, right—just stand in front of your camera and say what you want to happen to your stuff when you die. Plus, what could be more evidence for a valid will than a video of the testator? Wrong. Unfortunately, it’s not that simple. Video wills alone are generally not enforceable as valid wills in many states. Most states require wills to be in writing. Let’s discuss everything you need to know about video wills and some alternatives.
Are video wills valid?
No—A video will alone is generally not enforceable nor legally binding. However, there are a few jurisdictions where this *may* be considered enforceable as a nuncupative will (a verbal will). However, it’s still risky even in the states where verbal wills are valid. Having something in writing is the best way to express your intentions in virtually all states.
Why? Because this is what state legislatures have decided is the most reliable source of truth for devising assets—putting the will in writing, signing it, and having two witnesses attest to the document.
The issues with video wills
There are several issues with creating a video will. Here’s what to consider:
Issues of authenticity and tampering
Nowadays, with AI and video editing, it’s very possible and easy to tamper with videos. Imagine a scenario where a sneaky nephew with excellent computer skills edits the video to say that “nephew gets my entire estate” when it really previously said, “nephew gets my coin collection.” And don’t even get us started on AI. There’s the new possibility of people using AI to create video wills of their loved ones and then using that to change the way their assets are distributed. If the video will is altered or corrupted, it definitely undermines its authenticity and validity in court.
Concerns about undue influence
While this undue influence is a concern for all wills, creating a video will might be easier to unduly influence someone to devise their assets. Think about it: all you have to do is convince the person to say something on camera. In contrast, executing a will in writing, with two witnesses and signatures (as is required by law), is a lot harder to accomplish.
Lack of Details and Clarity
Unlike a written will, a video will might lack the specificity or clarity that a legal document requires. The testator may not explain their intentions clearly enough, which can lead to confusion or disputes among heirs. Also, a video will might not follow the formal structure required in a legally binding will. A legal will typically includes specific language and clauses that ensure its enforceability. Video wills may be informal and leave out essential legal elements, reducing their effectiveness.
Difficulty verifying the testator’s identity
While it may seem counterintuitive (what more proof could there be than a video?), it could actually be harder to identify a testator (will-maker) through a video than through traditional methods (using witnesses/notarization). For example, the video quality may be poor, or the video may have been tampered with.
Contradictory terms
If you opt to do a video will and a written will, it could create conflicting terms and could create the potential for litigation. For example, let’s say you create a valid written will AND a video will. If, in the video, you say something that could be construed as slightly contradictory to the terms of your will, it could open the door to one of your heirs or beneficiaries contesting the validity of the written will.
Technical Issues
Poor audio or video quality can affect the clarity of the testator’s wishes. Technical issues, such as poor sound, lighting, or video quality, may make it hard to hear or see important details. These technical issues can lead to challenges regarding the will’s authenticity and validity.
Combining a video will and a written will
It’s always best to speak with an estate planning attorney to determine if this is an acceptable option for you and for advice on how to execute it properly. If you have your sights set on a video will and written will, then just make sure your written will is executed properly according to state law (signatures, witnesses, etc.).
In addition, it’s crucial to make sure that the video doesn’t contradict the written will in any way whatsoever. For example, let’s say you devise all of your assets to your kids equally. However, in the video, you leave a message from beyond, saying how Josh was your favorite child and that you wish you could give him everything. This could create familial conflict and issues between your beneficiaries and, at worst, could even open the door for someone to contest your will.
How a video will can be helpful:
- It can be used to express the testator’s intentions more clearly, especially in cases where there might be ambiguity in a written will.
- It can offer a more personal and emotional touch to their wishes, as the testator is speaking directly to their loved ones.
- It could potentially help prevent future family disputes or challenges to the validity of the will if the testator is able to explain their decisions.
Recording the signing of your will
Creating a video will shouldn’t be confused with recording the signing of your will. Some attorneys institute the practice of recording the testator (will-maker) and their two witnesses signing the document. They don’t discuss any terms within the will, but instead they just video record the application of signatures of all three people.
This practice is usually done to deter any arguments that the testator didn’t actually sign it or that they weren’t who they said they were. It is just additional evidence to show that there wasn’t any fraud going on.
E-will: The alternative to video wills
If you are considering a video will because of the convenience of it all, there are other options. In a handful of states, you can fully execute an electronic will online (“e-will”), which is a will that has been created, signed, and stored digitally. And even in other states that don’t fully recognize e-wills, you can still get your will done mostly online and then just have it signed and executed in person. There are so many online tools now that allow you to get a will from the comfort of your own home.
The bottom line on video wills
The bottom line is that getting a video will is risky. And even doing a video will, in addition to a written will, comes with potential challenges. If you are hoping to “send a message from beyond” with a video will, you should reach out to an estate planning attorney to help you navigate the world of video wills in your state. And if you’re seeking a video will simply for convenience, consider getting a will online with online estate planning tools. Either way, it’s great that you are planning ahead of time and ensuring your wishes are met for whatever life throws your way.
Frequently Asked Questions (FAQs) about video wills
This is a fascinating topic, so it’s no wonder there are so many questions about it. Let’s discuss some of your most common questions on video wills.
Q: Can’t a video will attest to the mental capacity of a testator?
A: If someone challenges a will based on the lack of mental capacity of the will-maker, a video might provide auditory and visual evidence as to the mental state of the testator. However, states generally require two witnesses as the way of confirming mental capacity, so having two witnesses attest to a will is the more reliable route of confirming a will-maker’s mental capacity.
Q: Is a video as good as a written will?
A: No. Video wills are usually not enforceable, though some states may carve out exceptions for these. Either way, even if you’re in one of those states, it’s still riskier to create a video will over a written will. Remember, a video will should never replace a traditional written will. It can be a supplementary document that helps clarify your wishes, but the written will is typically the document that holds legal weight in most states.
Q: Can a video will be contested in court?
A: Yes, like a written will, a video will can be contested if there are concerns about its authenticity, the testator’s mental capacity at the time of recording, or the presence of undue influence. It may also be challenged if it contradicts the contents of a valid written will.
Q: How should a video will be stored?
A: The video should be stored securely, either in a digital format (e.g., on a USB drive, hard drive, or cloud storage) or in a physical medium (like a DVD). It should be kept with the testator’s other important estate planning documents, and the person’s attorney or a trusted family member should know where it is located.
Q: What if I just want to send a message from beyond?
A: That’s totally fine! Just avoid talking about the devisement of any assets to avoid any potential familial conflict or contradictions with your written will.
Katherine (Kathy) Bakes is the founder and managing attorney of Bakes Law LLC. Her eleven years of practice involves all aspects of family law, including the formation of prenuptial and postnuptial agreements, divorce and legal separations, child custody, child support, and visitation agreements, spousal support and financial settlements. Kathy also engages in the practice of estate planning including the formation of wills, revocable and irrevocable trusts, durable powers of attorney, health care proxies, HIPAA authorizations and living wills. Kathy is a member of both the Connecticut and Massachusetts state bars after receiving her Juris Doctorate degree from New England Law | Boston. Kathy lives in Southport, CT with her husband and toddler. Outside the office, Kathy enjoys playing the piano and teaches music education to students of all ages.
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