A common issue that arises when A Last Will and Testament (“Will”) is contested amongst beneficiaries, or any other interested parties, is whether or not the Signor (“Testator”) of the document had the “testamentary capacity” to do so. Testamentary capacity, simply put, is a person’s legal and mental ability to create or alter a valid Will. In order to prove this capacity, Wills typically require witnesses and notaries to attest to the capacity and ability of the Testator to execute the Will. To further assist in proving that a Testator has the capacity to execute a Will, some individuals choose to film the execution ceremony for the Will. The filming process for the execution ceremony of the Will does not take the place of physically signing and executing a validly written Will, it may however help to demonstrate the intent of the one signing the Will.
In the event someone chooses to film the ceremony, there are crucial elements and issues that must be contained in the video in order for it to have the desired affect.
At minimum, the following questions and issues should be addressed within the video:
- Identification of every individual in attendance both on and off camera, including Executors, Attorneys, Witnesses, Notaries, Videographers, Etc.
- Whether or not any beneficiaries or individuals that may have a conflict of interest with the Will are present.
- Who the beneficiaries of the Will are and distribution amounts.
- Identification the nature and extent of your property
- Who you would like to serve as Executor of the Will
- Any substantive matters contained within your Will concerning your estate.
- Consent that this video may be used in the event the Will is ever contested.
- Your intent for filming the execution ceremony for the Will.
With access to cameras and video capturing technology being readily accessible, many individuals are choosing to incorporate the filming of their Will execution ceremony into their estate plan. However, just as the filming of the ceremony may help to demonstrate the intent and capability of the Testator to sign their Will, it may just as easily be used to demonstrate a lack of capacity, misunderstanding of the Will, or a technical error in the execution of the Will.
If you choose to film the execution ceremony of your Will, only do so after seeking legal advice from a qualified attorney.