Wednesday, November 9, 2011

Videotaping the signing of your will

A popular Hollywood depiction of estate planning is the gathering of the family together to watch a video of the wealthy decedent describing his desires for the distribution of his estate. In my career I've only seen that done once and you might be surprised to learn that, independent of a document corroborating the video, the video will is invalid. In fact, video recordings are rarely used in estate planning at all.

The most frequent use of a video camera in the estate planning process is for the purpose of creating video evidence of the mental capacity of a client during his or her signing. As I've mentioned before, testamentary capacity is a critical issue when signing your will and trust. If you lack the requisite mental capacity, then the will or trust could be adjudged invalid. Sometimes an attorney will take the extra precaution of videotaping the signing along with a short question an answer period to prove the testator and/or grantor meets the threshold of mental capacity. Makes sense, doesn't it? If you want to prove to future potential challengers of the validity of the document that the client was of sound mind when signing the document, the best way to do so would be actual visual evidence of the signing itself. Unfortunately, it's not that simple. (Is it ever?)

The first issue with this approach is when to videotape the signing. If the attorney chooses to videotape only certain signings, in those signings he chooses to videotape it raises the presumption that he might believe that there could be some doubt as to the capacity of that specific client. Why would the attorney only record that person's signing to the exclusion of others unless he wasn't himself sure about the client's mental state?

Perhaps, the attorney solves that issue by simply videotaping every signing. Now no one client is treated differently than another. However, in the same way instant replay of a football play isn't always conclusive, the videotaping of an individual may lead different viewers to different conclusions when the absence of the video would leaving nothing to interpret. Or worse, a testator who was perfectly capable of signing her documents could have their validity challenged based on a subjective flaw that an angry disinherited heir and his attorney discover after the fact. Moreover, that challenge could be buffetted by the complaint that not enough of the signing was recorded and that only a favorable clip was preserved by the attorney.

I have never recorded a document signing for a client and for the reasons above, I don't plan to. Attorneys use built in safeguards to assess not only the capacity of the client for him or herself, but also within the documents to avoid challenges based on lack of capacity. I've had to refuse preparation of documents for clients in the past when I determined they would not meet the threshold. It's also why I counsel individuals and families to be proactive about getting their planning done before such a problem can arise.

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