Seeing is believing

Many of us are armed with miniature film studios in our pockets in the form of smartphone cameras. As technology advances it is worth exploring how private client practitioners can adapt their practices. One area where this technology could be beneficial is the recording of will signings. 

Starting point

For a will to be valid, the testator must have had the necessary mental capacity to make one. The test for this remains as set out in the 1870 case of Banks v Goodfellow. 

In assessing the various limbs of the test in Banks v Goodfellow, the tribunal must weigh up expert medical, non-medical and non-expert evidence to determine whether the testator had the requisite capacity to make and understand the specific will in question. Currently, this exercise is nearly always based predominantly on written or pictorial evidence that pre- or post-dates the time about which the court must draw a conclusion about capacity and understanding. As the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, cited by Lewison J (as he then was) in Perrins v Holland [2009] EWHC 1945 (Ch) at [40]: “the most compelling evidence of such understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this [sic] time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.”

Beyond testamentary capacity, the same evidence described above can put due execution beyond doubt and is likely to assist in establishing knowledge and approval, as well as having relevance where there is potential undue influence. 

Where a solicitor has the means to ensure such evidence is available to the court in the event of a subsequent dispute, they should use it. Indeed, wherever appropriate, videos of will signings should form part of the private client solicitor’s standard toolkit, to be deployed where it would be in the client’s interests.

Key considerations

Compelling evidence

As humans, we tend to rely heavily on the most direct forms of evidence. A video recording of a will-signing allows a judge to watch the testator ‘in action’ and form their own impression (almost as if they had been there). 

Recordings also allow a judge to form a view of the conduct and manner of those around the testator, both among themselves and in interacting with the deceased. In Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) (at [27]), the judge was struck by a home video (albeit pre-dating the will) that showed how the deceased’s children “talked across her, as if, even then, they were used to her talking without making sense”. In a hypothetical case of undue influence, for instance, nearly imperceptible interactions and looks between individuals may speak volumes. Yet, while a wide-angle camera would catch these actions, they may never make it into even the most diligent attendance note if the solicitor’s head was down at the relevant moment. 

A video recording could also be the most contemporaneous and direct evidence before a tribunal. A will-signing video can record the moments leading up to, as well as the instant the will is signed: the court therefore can focus on the time at which it must assess capacity, without needing to infer it from, say, evidence of a good day a month before, or a bad day two days afterwards. 

Finally, a judge may find medical experts’ factual conclusions regarding the testamentary capacity of limited value when reading a report (see Smith J in Leonard v Leonard [2024] EWHC 321(Ch) at [138–141]). Assessing cognition based on a video is much closer to an in-person physical examination and medical experts’ conclusions drawn from such assessments are likely to be more compelling for the tribunal than their analysis of the will file.

Weight of evidence

The difficulty lies in ensuring that, however compelling, video recordings of will signings are not given more weight than they are due. The hypnotic quality of screens, the inherently persuasive nature of seeing the event, and the ease with which a judge may rewatch it to explore each detail, all enhance the risk of inadvertently attributing more weight to a video of a will signing. 

Indeed, the quote from the Zorbas v Sidiropoulous case (above) suggests that a thorough video recording would likely outweigh even medical evidence. Caution here would be prudent, as the weight of either form of evidence will be case-specific. In some cases, people with declining cognition may be amply capable of masking their limited capacity, depending on the subject matter, or the context of the discussion. Conversely, the pressure of the moment may cause a person to appear less capacitous than in fact they are. An example might be the differing performances of US President Biden depending on the context.  

If an expert’s interpretation of medical records, alone or in conjunction with the rest of the documentary evidence, suggests that a testator’s appearance on video is indeed deceiving, judges should be careful not to value their impressions over expert medical opinion. To help the tribunal, solicitors who prepare such videos should also ensure that other contemporaneous documents, including their own attendance notes, are available. 

By extension, the weight given to the video evidence ought to be assessed in the context of the rest of the evidence. If the testimony of those who knew the deceased well is that the day of the will signing was in any way unusual, this ought to be a significant factor in attributing weight to the impression derived from the recording. 

Furthermore, the weight given to the recording will depend on the level of detail included in it. The Court of Appeal of New South Wales suggests a “detailed conversation” to establish an understanding of the assets disposed of, the effect of the will and the testator’s family. In effect, a solicitor preparing such a recording should be ticking off the limbs of Banks v Goodfellow as they go. The less precise or thorough the exchange, the less weight should be attributed to the video recording. 

Reliability of the recording

The passage cited above by Lewison J stresses that the recording must be reliable. The less comprehensive the video is as a record of the whole process, the lower its value to the court and the less a judge will feel compelled to rely on it (see Wilson v Spence [2022] EWHC 158 (Ch) at [48–50] where the judge contrasted the value of a hypothetical video with the unsatisfactory photographs before him). 

To maximise reliability, solicitors should:

• capture as much of the scene as possible, to avoid the impression that someone or something may be influencing proceedings out of shot
• check that lighting and audio are both working and of sufficient quality
• ensure only those individuals necessary are present – witnesses, possibly a carer (though not if they are a beneficiary), and the solicitor, and
• prepare a transcript shortly after the fact, particularly if the testator’s diction is impaired.

Ideally, the attendance note accompanying a will-signing video should summarise the conditions under which the video was made, and specify the circumstances in which consent to record was given by all parties who appear within the video.

The recording should always be overseen by the solicitor or professional preparing the will. Where an interested party prepares or makes the recording, a court will be entitled to treat it either as unreliable or attribute insufficient weight to aid the propounder in discharging the burden placed upon them (see Poole v Everall [2016] EWHC 2126 (Ch) at [76–82] and [120–121]).

Getting the balance right

A video recording should not replace a good attendance note, but they can work in tandem to be greater than the sum of their parts. The attendance note could be drafted both as a standalone piece of evidence in the usual way, but also to serve as an anchor or a contextual guide to the video. The attendance note could clarify moments in the recording that may require some explanation, such as an occurrence off-camera causing the testator to react in a particular way, or where an earlier occurrence or physical ailment accounts for behaviour that might otherwise appear as odd. For instance, where a testator expressed apprehension about making the recording, even after giving consent, this ought to be mentioned in the note, to avoid any confusion later.

Together, the attendance note could enhance a tribunal’s understanding of what it sees in the video, and the video could add colour and context to the attendance note. If handled well, the resulting combination could be potent evidence indeed.