The Video Will

In this post, I discuss the popular idea of the video will, separating fact from fiction to discuss when such a will can serve a valid purpose.

If you are thinking about your estate plan, the idea of a video will may have crossed your mind. After all, you have probably seen them used in movies and television, as there is an extra bit of drama and perhaps sentimentality attached to the idea of your conveying your wishes to your loved ones directly through a television screen from beyond the grave.

A Video Will?

In previous posts, I discussed the proper way to execute a traditional will and the validity of the holographic will. It seems appropriate, therefore, that I discuss the video will, if for nothing else for its prevalence in media depictions of the last will and testament.

So, is the video will a valid estate-planning tool? The short answer is no. They are generally invalid.

Some states do allow for oral (nuncupative) wills in extraordinary circumstances—usually imminent death—and a video recording made in such a moment could in principle bear evidentiary weight where the underlying jurisdiction recognizes the oral testamentary act. New York, for example, permits a nuncupative will for armed-forces members in actual military service and mariners at sea (EPTL § 3-2.2), and a handful of other states retain narrow imminent-death provisions for personal property of modest value.

Arkansas, however, is not among these states, and even those states that do allow for it allow for it in only very limited circumstances, thus hindering the ability of the video will to serve as a standard estate-planning tool.

Executing a Will

A will must almost always be in writing and adhere to necessary formalities. So, while it may be easier to simply record a video of yourself explaining your desires for your estate, your desires expressed in this way will not be enforced by a probate court.

This does not mean, however, that you cannot express your wishes on video if you so desire. So long as you have a valid written will, a video recording may be a good way to express your desires to your family. Many people simply like the idea of their loved ones hearing one last message from them after their death. If this is your desire, there is no reason you should not be able to fulfill it, so long as you understand it will have little legal effect.

An estate plan should be made carefully with competent counsel. This is just another example of how you can’t always trust the legal information you receive from movies and television.

Disclaimer: This post is general legal information about video wills and oral-will exceptions, not legal advice. The rules for testamentary formalities, oral/nuncupative wills, and video supplements vary substantially by state and the consequences of a defective will are severe (intestacy); consult a qualified estate-planning attorney before relying on any video-based testamentary plan.

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