Is there a lawyer in the room? Or can I just use my iPad?

6 September 2016

You wish to record your Will. Who do you turn to?

A Will needs to be expressed in words, and these words need to be recorded somewhere.

The reason behind testamentary formalities has always been that we should not die without the right to express our last wishes.

The central question is: in whose presence can we record our last Will?

In the past, the formalities of Will-making depended on who you were and where you lived. Your status in society played a role and also the circumstances in which your Will was made.

Wills in the Roman empire

If you were a free citizen (and not a slave) in the early days of the Roman Empire, you would have declared your last Will in front of a “solemn assembly of the Roman people”.

Gradually, written Wills were accepted, first with the seals of five witnesses. Roman law would actually make you sell your possessions to your appointed heir, who was qualified as “familiae emptor” (buyer of the family estate).

In early modern Europe it was important for the church to facilitate Will-making because many people donated most of their possessions to the church.

During the first and second world war, soldiers were allowed to write a “Short Form of Will” in their army pay book:

In modern times and until this day, Wills have to be in writing. The law is almost universal in imposing a written document.

More recently, however, technology allows you to make the strongest Will in history yet

It started a few decades ago, with people reading and explaining their written Will on recorded video.

The American Bar Association has clearly spoken out in favour of a video as a strong “supplement to a properly prepared written Will”:

“More and more people are preparing a video in which they read the Will and explain why certain gifts were made and others not made… Should a disgruntled relative decide to challenge the Will, the video can provide compelling proof that the person making the Will was mentally competent and observed the formalities of execution.”  

Since 2010, mobile technology makes it possible to video-record a Will more easily. It also allows us to record for future generations at a much smaller cost.

This technology could lead to new laws: legislators have begun discussing whether, instead of making a Will in front of witnesses, a written Will could not be made more easily in front of a camera.

Even before new laws adopt this technological solution, video-recorded Wills are already a strong supplement to the traditional Will.

It is difficult to see how a video-recording can be contested in court.

Judges agree that it is quite impossible to imitate a person’s face, voice and gestures. And the time and place of the recording are automatically saved. That irrefutability is why police and army officers carry cameras on their helmets in delicate law enforcement operations.

A video is harder to fake than it is to copy a person’s handwriting or forge a signature. And the latter still happens in real life, more than it should, shown by the recent example in the BBC’s “Fake Britain”, where the ensuing legal fights were long and expensive…

Consider using video to strengthen your written Will – you’ll leave nothing to doubt.

A video-Will will can only make your written Will stronger.

Koenraad Aerts, Member of the Brussels Bar Association, co-founder of VideoTestaments