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Is A Video Will A Valid Will? – Law vrs Technology
Is a Video Will a Valid Will? A video will is a Will recorded in video as opposed to written on paper and signed. The Testator narrates the distribution of the properties on video sometimes in the presence of his lawyer. We will use the case of Mr. John to examine whether this can be Valid in Ghana.
A Video Will on His Death Bed
Mr. John was a hard working pupil teacher in Ghana. He had four children, with one wife. Over the years, he built two houses. The matrimonial house in Accra (5-bedroom house) and a building with six apartments in his hometown where his parents and siblings lived. During the celebration of his 45th anniversary as a teacher, he fainted and was hospitalised with a severe stroke. After going through some treatment for a couple of months, he was discharged. On his last day at the hospital, at midnight, he suddenly woke up with a premonition. He was going to die before the sun rise.
Immediately, he knew what he wanted to do. He called the nurse and the on-call doctor and convinced them to record a video. In the video, he stated his name, the date, his address, date of birth and his physical location at the hospital. He named his lawyer as the Executor. He recorded messages for all his family members. Then he mentioned the full names of his wife and children and gave them the Accra house. Then he gave the apartment building to his parents for their lifetime and upon their death, to his wife and children. He did not give anything to the rest of his extended family members, i.e., siblings, uncles, cousins, nephews, nieces, etc.,. After recording, he identified the doctor and the nurse who were present recording the video and then went to sleep. He never woke up again.
An Inheritance Dispute
After the funeral and burial rites, it was now time to share the properties. The video from the hospital was shown and presented as a valid will. The wife and children were very happy, and they accepted it. The parent and the rest of family though not so much. The family sued at the High Court saying that the video will cannot be a valid will. They also argued that he wasn’t of sound mind to make a Will because of fear of death. The wife and eldest child defended the case, that the video will was a valid Will. Also, that their husband and father knew exactly what he was doing. What are the arguments?
The Family – It is Not a Valid Will.
Under the Wills Act of Ghana, a Will must be in writing, signed by the Testator and two witnesses. This video by its very nature cannot be a valid Will. It is not in writing, and it is not signed, cannot even be signed by either a Testator or witnesses.
Wills Act, 1971 (ACT 360)
Section 2(1) requires that a Will must be in writing and signed by the Testator.
Section 2(3) requires the signature of the Testator to be attested by two witnesses present at the same time.
Sections 1(2) and 1(3) requires the Testator to be of sound mind, free from insanity, duress or undue influence.
Purchase a copy of the Wills Act here or a free PDF here.
The Video is Not a Writing
A “writing” is defined as a set of graphic symbols used to convey meaning. They are usually handwritten, printed, or otherwise inscribed on a surface. Writings are typically considered physical objects, like documents or books. These definitions may not explicitly include videos. However, while videos are undoubtedly a form of communication, their format and characteristics distinguish them from “writings”.
Videos, while stored on physical media, are primarily digital representations. Writings can be preserved indefinitely, whereas videos can be deleted or corrupted. Writings are primarily perceived through sight. Videos involve both sight and sound, making them a multi-sensory experience. Videos often require playback or a specific device to be viewed, unlike written text, which can be read directly. The video recorded by the deceased is thus not a writing.
The Video is Not Signed
A signature is a person’s name or mark inscribed on a document by that person as a form of identification and authentication. A signature serves two main purposes, first to prove the identity of the one who signed it.
Secondly, to authenticates the contents of the document on which it appears. Therefore, the signature shows that the person who signed is aware of and accepts/agrees with the contents of that document. The signature proves that its owner is either the author of the document or agrees/accepts its contents.
The Video as presented does not have any signature(s). No signature appears in the video footage and neither does any signature(s) appear on the medium containing the video or its packaging.
The meaning and intent of “signature” in the Wills Act is quite clear. The lawmakers require Testator to place his identifying mark on a document containing Will same for the witnesses. Therefore, for all intents and purposes, the Video Will has not been signed by the Testator neither signed by the attesting witnesses. So, assuming it was even a Will by any stretch of the imagination, it would not be a Valid Will, because it is not signed.
Thus, by logic and common sense, we can conclude that the Video is obviously not a writing and clearly has no signature appearing on or in it. Therefore, it is not a valid Will.
Mental Infirmity and Undue Duress
The Family argued that because Mr. John was in fear of death, he was not in the proper state of sound and sober mind required to make a Will.
Mr. John knew that his family members lived in the six-apartment building. He personally gave the rooms to his parents, siblings and their families. As such it is not consistent with his generous nature to ignore them and give the entire property to his nuclear family.
Since he was afraid of dying, he was thinking only of his parents and nuclear family hence the video. If he had been of sound and sober mind, he would have maintained the status quo and given the six-apartment building to those who occupied it.
For this reason, even if the Video was a competent Will, it would still not be valid because Mr. John was under fear of death, this made him temporarily forget about his extended family (mental infirmity) and put him in extreme fear for the welfare of his nuclear family (undue duress).
The Spouse & Children – It is A Valid Will.
The spouse and children argued that the video is a written document within the meaning of the evidence act of Ghana. They also argued that the image and likeness of the Testator and his spoken words captured in the video are much more superior and reliable than a signature signed on a piece of paper can ever be. As such they invited the Court to consider that the Video Will was superior and served the purposes of the Wills Act more than a written will could have done.
They further argued that Mr. John was able to mention his name, date of birth, he knew his location and mentioned the names of all the family members and gave them advice. He therefore knew exactly what he was doing.
Evidence Act, 1975 (NRCD 323).
Under the evidence act section 179(1), a “writing” includes – a handwriting, typewriting, printing, Photostatting, photographing, mechanical or electronic recording, and any other means of recording upon a tangible thing, a form of communication or representation, including letters, words, pictures, sounds or symbols, or combinations of those things.
A Video is A Writing
By that definition, a Video is also a writing. This is because it is an electronic recording on a tangible medium with words, pictures and sounds. Therefore, the Video Will can be tendered/presented in Court as a written document containing the Will of the deceased.
What is Video
The video camera works by capturing the subject (i.e., the “image” that the camera “sees”) and storing/recording it on a “frame”. Depending on the technical specifications of the camera, for every second that passes, the camera can capture up to 120 or more frames. The software of the camera then arranges these frames in a progressive manner in order of the time that the frame was captured. When these frames are “played”, the illusion of movement is created, and the human eyes sees what we call a Video.
What is Audio
Some cameras are equipped with microphones. These are devices that have the capacity to capture and record the frequency of each vibration of sound. Cameras that are equipped with microphones are able to mark the sound frequencies in time with each frame that is captured.
This means that for every second that passes, as the camera is recording the frames, the microphone is also recording the sound frequencies associated with that frame in time. These are matched and aligned with one another. Thus, when the video is played, the illusion of movement is accompanied by its accompanying sound.
With this understanding, we grasp that the Video is in actual fact, a written record of what took place in sight and sound over a particular period of time. Therefore, the evidence Act in considering a Video a writing is not farfetched at all.
The Video is Signed
If the presence of a signature serves to identify its owner and authenticate the document, then a video is a medium superior to a signature. In a video, one sees the person and hears their words from their own mouth. This cannot be forged unlike a signature which can easily be copied by any skilled artist. We contend that the video is therefore superior to a mere signature.
Furthermore, where there is a video of a signatory which contradicts the contents of that signatories document, then the video ought to be regarded as superior and of a greater probative value than the signed document. Unless there is evidence to the contrary.
In any case, at the time that the Will Act was promulgated, signatures were the most efficient and universally accessible form of identification of the author and authentication of the contents of written documents. However, now we have modern technologies such as videos which can immediately identify a person and the words, they speak much more accurately than any signature can.
Technology has Overtaken the Law
If the ultimate purpose of law is towards Justice, then we cannot allow the Will of a deceased person to be disregarded simply because the law has been overtaken by modern technology.
The law was made for man and not man for the law. We have a video where the Testator shows his face and speaks his own name. At the same time, he makes testamentary devices and identifies the names and faces of two witnesses. Such a video is far superior to a paper Will and satisfies the standards of identification and authentication more than the authors of the Wills Act could have imagined possible.
Therefore, we will contend that the Video Will is a written document and endorsed by the Testator with two witnesses and it ought to be enforced by the Court.
Final Verdict
We avoid giving a verdict here and throw it to you the reader. Assuming you are a Judge, which case do you find more persuasive. Is A Video Will valid or not? Are you team spouse or team family?
In Conclusion
If team spouse wins, then the Video Will shall be enforced, and the extended family gets nothing.
However, if team family wins, then PNDCLaw 111 shall apply, and the matrimonial house will be given to the spouse and children and the rest of the estate shall be shared as – Spouse-18.65% | Children-56.25% | Parent-12.5% | Family-12.5%.
Learn more about Inheritance Property Distribution here.
Buy a copy of the PNDCLaw 111 here or get a free PDF here.
One Comment
Very interesting. I enjoyed reading and I understood everything, very simple and easy to follow.
The last sentence of the 2nd paragraph…He knew HE was going to die soon but he did not have a will.
I join team spouse ooo👍🏾😀
No way, still with team spouse. The man was in his right frame of mind, he spoke intelligently and well. He decided what he wanted with his hard earned estates.