Pictured: A screen grab from the music video for “Only Acting” by Kero Kero Bonito. It’s one of my favourite songs. It’s not quite about video wills, but it does show off some of the challenges of recording oneself.

What are Video Wills?

Some practitioners have floated the idea of a “video will” as the next way in which technology will impact the world of trusts and estates. A “video will” is a video recording of a testator reading out their last will and testament or otherwise explaining their testamentary intent.

In a brave new world where everyone records everything for YouTube, Instagram and/or TikTok, video wills only seem to make sense. After all, since so many will disputes are centered around what the testator intended (and in some cases whether the testator even had knowledge of the impugned will in the first place), what could be better proof than a recording of the testator’s wishes coming “straight from the horse’s mouth”, so to speak?

Criticisms of Video Wills

Well, as my colleague Dr. Ken Shulman explains in his blog post “Videographers Beware”, there are many risks associated with video wills. To quote his eloquently-written post:

“A video of a testator is only as good as the quality of the interview. Since most videos are made by amateurs (family, friends or the ‘odd’ lawyer), the upshot of the video is that it usually demonstrates the exact opposite of what was intended. Some videos simply show the testator agreeing passively to the reading of each paragraph of the will, thus inadvertently supporting the possibility of undue influence. Other videos show the testator interacting with family members at dinner or at a family function engaging in superficial social banter that provides no assurance that the testator has an understanding or appreciation of the significant people or issues in their lives. Recall that an important criterion of testamentary capacity is the ability to provide a clear, consistent rationale for the distribution of the estate especially when there has been a significant departure from previously expressed wishes or prior wills. These videos generally fail to demonstrate this. So, unless the interviewer is skilled, it is probably best to leave such documents on the cutting room floor. Do not fall into the proverbial trap of being hoisted on one’s own petard.”

Case in Point: The Carinci Decision

The recent case of Carinci v. Carinci, 2023 ONSC 6094 shows that Dr. Shulman’s words have certainly rung true. Carinci is a decision of the Ontario Superior Court of Justice regarding whether the evidentiary threshold had been met for a will challenge. Notably, as part of her evidence, the respondent daughter of the deceased (and major beneficiary of the deceased’s will) submitted a video recording of the will signing.

In the video, the deceased’s lawyer (who had prepared the will for her and was acting as a witness), was asking her questions via audio-visual communication technology—note that Ontario’s Succession Law Reform Act permits the witnessing and signing of counterparts of wills via audio-visual communication technology. Based on the recorded video of the signing, the court found it clear that the deceased had been “coached” by someone else in the room with her during the signing. In the video, a voice is audibly “feeding” the deceased answers to the lawyer’s questions. When the lawyer asked the deceased if anyone was in the room with her, she said “no”.

Among the other issues with the signing, the deceased needed to be reminded several times by the lawyer to date her wills and show her initials on camera. The court also conveyed that the lawyer did not ask open-ended questions about the deceased’s estate plan, her assets and liabilities, why she was treating her children differently or if she was being unduly influenced. Arguably, the fact that the parties had conducted the signing remotely, and not in person, amplified these issues. It seems that the fact that the signing was remote caused a diminished ability of the lawyer to ascertain the state of the deceased as well as the deceased’s surroundings. The court ultimately determined that there was enough evidence to proceed with the will challenge.

The Importance of a “Paper” Trail

Now, Carinci isn’t necessarily fatal to the notion of video wills; it only demonstrates the flaws of a situation where the will witnessing is done remotely (e.g. the drafting lawyer isn’t in the same room as the deceased). While the COVID-19 pandemic has made us very familiar with recording videos where the participants are not physically beside each other, that doesn’t necessarily mean that a lawyer couldn’t set up a studio to record all of their in-person signings.

But, as Dr. Shulman suggests, even if one had a camera set up, chances are it will only show one—likely imperfect—perspective of the signing. Even a video done in a professional studio cannot allow a viewer to conclusively determine whether someone off-camera was influencing the testator during the signing; that can only really be determined by the people who were actually in the room with the testator. Ergo, it’s still very much possible for a professionally-done video to be subject to the same scrutiny that both Dr. Shulman and the court in Carinci outlined. The issue isn’t just the video format; it’s also the person who is interviewing the deceased and/or asking them questions on camera. And an interview is very much necessary—the average person isn’t going to know on their own what specifically they should say for their words to have the same efficacy as a written will drafted in collaboration with a lawyer.

These types of issues are precisely why lawyers create a “paper” trail of notes, emails and other correspondence to support the legitimacy of a client’s testamentary intent. Even though in theory one could adapt most of these types of writings and communications in a video format anyway, in many cases such videos may be more cumbersome to review. It’s easier to “Ctrl+F” through a document then it is to go through hours of video. If there’s ever a dispute with respect to interpretation of the relevant material it’s simpler to visually review words on a page than rewind and re-watch a video over and over. Some lawyers have paper notes but will record client meetings in any event to bolster their notes; this seems to be a better option then relying solely on video.

Written Wills Only

Please also note that it’s unlikely that an Ontario court will validate a video just by itself (i.e. without any actual written document) as a will any time soon. Section 3 of Ontario’s Succession Law Reform Act specifically states that “a will is valid only when it is in writing”. Although there is also Section 21.1 of the Act which is the new “substantial compliance” provision (please see my colleague Mohena Singh’s blog post “Ontario Courts determine what constitutes a valid will” for further details), that provision only allows a court to validate “a document or writing that was not properly executed”. It doesn’t contemplate videos as wills.

While it’s usually a great idea to use technology to make our lives easier, this may not be the case when it comes to video wills. In Carinci it was the respondent who actually submitted the video into evidence, and the video actually supported the applicant’s argument. Had she not submitted the video the court may very well have decided the case differently. I personally think the next logical step for technology to change the way we do wills is through the use of electronic wills (a topic on which I recently presented at the 2024 Ontario Legal Conference). Electronic wills can use video witnessing to help safeguard the validity of a will while also leveraging the convenience that technology can provide. But I think it’s a strategy that still needs to work in tandem with proper note-taking to ensure that the will reflects the testator’s intent free from undue influence.

Concluding Thoughts

Now, this doesn’t mean that there can’t be a healthy crossover between the video production world and the trusts and estates world in other ways. I have recently learned about services such as Gemstone Legacy or JByJ Productions that will produce full-length, documentary-style videos about families, their history and their legacy. While these aren’t wills by any means, they can nonetheless be something valuable for a family to pass down to subsequent generations.

I’m a proponent of advisors and clients collaborating through the use of technology to more efficiently and comfortably achieve their goals; I’ve previously written about this topic in my blog post “Software Applications as Aids to the Estates Advisor”. While I think there are ways that videos can be a part of this aim, I think we should all be mindful of Carinci as a cautionary tale that exposes some of the flaws of videos of will signings.