Thursday, August 17, 2006
Modern video-recording technology provides an inexpensive, convenient, and reliable method of preserving evidence of the will execution ceremony and its important components. A properly prepared videotape can be used to establish testamentary capacity, testamentary intent, compliance with will formalities, the contents of the will, lack of undue influence or fraud, and even the correct interpretation or construction of the will if the tape recorded the testator explaining the provisions. This technique is gaining in popularity as states, either by case law or statute, begin to formulate guidelines for the use of these tapes as evidence in a will contest action.
A videotape of the will execution ceremony has many potential advantages. It is highly accurate, unlike witnesses whose memories and impressions fade with the passage of time. The tape improves the ability of the court or jury to evaluate the testator’s condition by preserving valuable nonverbal evidence such as demeanor, voice tone and inflection, facial expressions, and gestures. The tape may also have psychological benefits for both the testator and the survivors. The testator may feel more confident that the intended dispositive plan will take effect and the survivors may gain solace from viewing the testator delivering a final message.
Despite the significant benefits of a will execution videotape, there are several potential problems. In some cases, you can take steps to reduce or eliminate these problems, while in other situations the prudent decision would be to forgo taping the ceremony. Although a situation may otherwise seem appropriate for videotaping, you may be hesitant to expose the testator to the court. An accurate picture of the testator may lead a judge or jury to conclude that the testator was incompetent or unduly influenced. Similarly, bias against the testator may exist because of the testator’s outward appearance; the testator’s age, sex, race, disability, or annoying habits may prejudice some individuals. There is also a possibility that someone might alter the videotape. The alteration could be accidental through inadvertent erasure or exposure to a strong magnetic field. Careful storage procedures, however, greatly reduce these risks. Intentional alteration through skillful editing and dubbing may also occur, although a videotape is more difficult to alter than a written document.
Earlier on this blog, I reported on the extended story being run by the Dallas Morning News on Mary Ellen Bendtsen.
The paper has now posted the video of Mary Ellen executing her will. Watch it and see what you think. The video makes for interesting viewing and discussion thereafter. For example, did she really have capacity? Did she sufficiently sign the will herself? Why would the attorney allow the beneficiaries to attend the taping?? Why didn't the attorney have the will witnessed?
Note that Judge Loving refused to admit the will to probate because it was not witnessed in the presence of Mary Ellen thus sidestepping the intent and capacity issues.
To view the video, follow this link, click on "Video," and then select "The Will."