Some people make a video recording of their will signing in an effort to create evidence that they possess the requisite testamentary capacity. In some cases, this strategy may help stave off a will contest. But in most cases, the risk that the recording will provide ammunition to someone who wishes to challenge the will outweighs the potential benefits.
Assessing the Downsides
Unless the person signing the will delivers a flawless, natural performance, a challenger will pounce on the slightest hesitation, apparent discomfort or momentary confusion as “proof” that the person lacked testamentary capacity. Even the sharpest among us occasionally forgets facts or mixes up our children’s or grandchildren’s names. And discomfort or nervousness with the recording process can easily be mistaken for confusion or duress.
You’re probably thinking, “Why can’t we just re-record portions of the video that don’t look good?” The problem with this approach is that a challenger’s attorney will likely ask how much editing was done and how many “takes” were used in the video and cite that as further evidence of lack of testamentary capacity.
For most people, other strategies for avoiding a will contest are preferable to recording the will signing. These include:
- Having a medical practitioner examine you and attest to your capacity immediately before the signing;
- Choosing reliable witnesses;
- Including a “no contest clause” in your will; and
- Using a funded revocable trust, which avoids probate and makes it more difficult and expensive to challenge.
If you’d like more information on estate planning strategies, please contact me. I can be reached at SDitman@BerdonLLP.com or call your Berdon advisor.
Scott T. Ditman, a tax partner and Chair, Personal Wealth Services at Berdon LLP, advises high net worth individuals and family/owner-managed business clients on building, preserving, and transferring wealth, estate and income tax issues, and succession and financial planning.