Lights, Camera, Action�video Will Executions
| Publication year | 2013 |
| Pages | 45 |
By Herb E. Tucker
Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.
Coordinating Editors
David W. Kirch, of David W. Kirch, P.C., Aurora—(303) 671-7726, dkirch@dwkpc.net; Constance D. Smith, of Fairfield and Woods P.C.—(303) 894-4474, csmith@fwlaw.com
About the Author
Herb E. Tucker is a shareholder with the Denver law firm of Wade Ash Woods Hill & Farley, P.C., where he specializes in estate and trust administration, with an emphasis in probate and trust litigation. He is a member of the Colorado, Douglas County, and American Bar Associations and is actively involved in the CBA Trust and Estate Section and in many subcommittees. He has lectured locally and nationally for CLE programs and has written numerous articles on probate and trust litigation.
This article explores how modern video-recording technology can assist the drafting attorney in ensuring that a client’s wishes regarding the distribution of his or her property at death are carried out. It also discusses case law and state statutes regarding the admission of videos depicting will executions, evidentiary issues, tips regarding the video will execution, the use of professional videographers, and the pros and cons of video will executions.
There are a number of steps the drafting attorney can take to reduce the risk of a will contest. One way a drafting attorney can insulate a client from a will contest is to videotape the will execution.[1] However, there are a variety of reasons an attorney may—or may not—want to video a will execution.
Given the explosion of social media and digitized video technology, it is likely that videos of will executions will become more prevalent. Conceivably, cell phone cameras could be used to create a video memorializing the testator’s will execution, which then could be uploaded to SkyDrive, Dropbox, or other cloud storages.
Overview of Video Will Executions
Estate planning lawyers frequently ask probate litigators, when they anticipate will contest litigation, whether they should videotape the execution of a client’s will. Generally, probate litigators view video will executions as a risky proposition. On the one hand, a video of the will execution could help the proponent establish the testator’s testamentary capacity and intent, as well as dispel any notion that there was undue influence or forgery. On the other hand, the video could be used by the contestant and the contestant’s forensic expert as further evidence that the testator lacked testamentary capacity or that the will was a product of undue influence. The fact that the lawyer arranged for the video will execution could raise red flags that the video was a deviation from the drafting attorney’s normal routine and that there was a concern that the client may lack capacity. It also alerts others that the drafting attorney anticipated that the will might be challenged at the client’s death.
One person’s perception of the video could be quite different from another’s, resulting in opposite conclusions being reached. One risk is that jurors who spend their working hours in front of a computer monitor and non-working hours looking at a television screen could arrive at a conclusion regarding capacity and undue influence exclusively from the video and ignore other persuasive circumstantial evidence.
For example, in King v. Brown, [2] the Georgia Supreme Court affirmed the Georgia Appellate Court, which upheld the jury verdict finding the will invalid for reasons of undue influence and lack of capacity. In this case, the testator Rufus Bell had six children. In 2002, Bell executed a will leaving his entire estate, consisting of a ranch, livestock, and equipment, to two of his children equally and disinheriting the rest. The drafting attorney, recognizing the likelihood of a will contest, videotaped the 2002 will execution. In 2003, Bell executed another will, which also was videotaped, leaving all his money to one son, King, who had worked on the ranch for years, and excluding the rest of the children. One of the testator’s disinherited sons, Brown, challenged the 2003 will on the basis that his father lacked testamentary capacity and that the will was a product of King’s undue influence. After review of both videos, the jury found the 2003 will invalid. Brown filed a motion requesting judgment notwithstanding the verdict (JNOV). The trial court denied the Motion for JNOV. The Georgia Court of Appeals and Supreme Court upheld the trial court’s finding that the jury could watch the video and draw their own conclusions.
An opposite result occurred in Peterson v. Glinn, [3] when a jury, after review of a videotaped codicil execution, concluded that the testatrix had capacity despite numerous deficiencies evidenced in the video. The jury reached its decision even though the testatrix misstated her age by two years, and made mistakes regarding the year her house burned down, the year her husband died, and the acreage of her ranch. One witness testified that during the taping, the testatrix had her head down and eyes closed and appeared to be sleeping. The director of the nursing home testified that she was reluctant to witness the codicil because she believed the testatrix did not know what she was doing. However, the jury concluded that the testatrix generally knew the nature and extent of her property, who her heirs were, that the document she was signing was a codicil to her will, and why she favored one son over the other.
Historical Background
Video technology is constantly evolving. Videotaping was perfected in 1956 by the Ampex Corporation. It became increasingly available to the public during the 1960s. In the mid-1970s, the general public was able to purchase reasonably priced VCR, VHS, and Betamax recorders. Now, almost everyone owns a digital camera, digital recorder, or cell phone camera. Professional videographers have state-of-the-art digital, tapeless, high-definition (HD) cameras that produce crisp and clear HD pictures.[4]
Historically, courts have demonstrated a willingness, in criminal cases, to rely on videos and tape recordings as evidence of: (1) defendants’ statements and confessions; (2) criminal lineups; (3) law enforcement wires on paid informants; and (4) taps on phones in sting operations. However, civil courts have been reluctant to expand the introduction of videos of will executions with respect to testamentary instruments, recognizing restrictive statutory and evidentiary requirements. With wills, as with contracts, it is the writing itself that must meet the burden of proof. Probate judges regularly invoke the "four corners" doctrine to exclude parol or extrinsic evidence supplementing facts that are clear on the face of the document.[5]
Case Law and Legislation
There are a handful of cases from other states that discuss video will executions. The earlier cases discuss the admissibility of video will executions without addressing the contents. The later cases address the content of the video will execution as evidence in support of claims of undue influence and lack of testamentary capacity. Only two states—Indiana and Louisiana—have statutes that specifically address the admissibility of video recordings of will executions.
Case Law
In In re Estate of Reed, [6] the Wyoming Supreme Court stated:
The use of tape recording or other type of voice print as a testamentary instrument is a decision for the legislature to make. The [courts] will not enlarge, stretch, expand or extend the [state] holographic will statute to include a testamentary device not falling within the express provisions of the statute.
In Reed, the proponent attempted to admit a video of a will execution as a holographic document. The video was sealed in an envelope. The testatrix wrote on the envelope "open at my death" and signed it. The Court rejected the creative argument of the proponent’s attorney finding that the video and envelope did not comply with the Wyoming statute requiring that the material provisions of a holographic will be in the testator’s handwriting. An interesting question is whether the video and envelope could meet the requirements of a "writing intended as a will" under CRS § 15-12-503.[7]
There are several early cases from other states discussing the admission of evidence that the drafting attorney considered videotaping the will execution and abandoned that idea or evidence that the video was destroyed. In the 1979 case of Estate of Robertson v. Gallagher, [8] the Florida Court of Appeals upheld the trial court’s decision that the proponent of the will had not exercised undue influence over the testator. Without discussing the contents of the video, the court record indicated that there had been testimony regarding the testator’s attorney arranging for a videotaped will execution ceremony. In Wall v. Hodges, [9] the Alabama Supreme Court reversed the trial court’s finding of undue influence. The Alabama Supreme Court discussed the trial court’s admission of evidence of the testatrix’s decision to undergo a psychiatric examination in lieu of a videotaped will execution. The Kansas Supreme Court, in In re Estate of Raney, [10] upheld the trial court decision, which permitted evidence of a will execution ceremony that had been taped, but the tape had been destroyed by the attorney’s brother-in-law after the drafting attorney and testator died.
Since the late 1980s, there have been four cases involving videotaped will execution ceremonies.[11] Each of these cases involved a determination, through review of the video, of whether the testator had testamentary capacity or was subjected...
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