I must apologize for my prolonged absence from blogging: I lost my proofreading and Blogging Accountability Partner Alix Purcell due to her successes. I shall attempt to continue this part of our journey in her absence as best I can.
I have heard of some attorneys videotaping clients executing their wills, and I have in fact once been a witness to another attorney executing a will while recording the execution of the document. Attorneys think recording the testator’s actions (thereby supposedly proving his or her mental capacity at the time of execution) will make it clear to a court that the person “knew what they were doing” (executing a will) at that time (a key requirement for a valid will). This is not such a good idea, as even the best reasons do not outweigh the negative ones.
First, people tend to act a bit unusual in front of a camera, as if they are not themselves. They tend to exaggerate, joke around, or act too stiff. It is difficult to prove that someone was in his “right” mind when what you are watching is not indicative of what the person usually acts like.
Next, too much evidence is usually not good evidence. A skilled opposing litigator is always looking for a weakness, some ammunition to throw back at the other party; the more evidence you give him, the greater the chance he could find something wrong. Remember that wills are relatively hard to dispute if they were written and executed correctly, so opening the door to additional evidence is not a great idea.
Lastly, a large part of will disputes is when the drafting attorney is deposed. If the attorney consistently does a certain action, it tends to lead to an inference of good practices. However, recordings tend to get lost, their quality may not be great, or a few may have never been done in the first place. It would be hard for an attorney who “always” records her will executions to not have the one recording for a will being disputed. Was it lost intentionally? Did the Testator actually not have capacity? Again, more ammunition for opposing counsel.
If the client’s mental state is in question enough to consider videotaping the execution of the will, maybe (I stress “maybe” in a cynical tone) he or she should not be executing the new document.
I have seen the actual recordings of a few wills. The testator always comes off as being pressured, confused, or downright fearful. These are the exact emotions you do NOT want to see when you want a will validated. Keep it simple, execute your will correctly, and do NOT tape the execution ceremony.
