A Strong Offense
A Stronger Defense
There is almost never anything good that can be gained by videotaping the execution of a will. Chances are the testator will be nervous that the whole episode is being taped and that likely will end up showing up on the video. One of the only reasons that you would tape the execution of a will is a concern about an incapacity challenge, so think about – nerves aside – how the testator is going to look to a jury.
If you think there will be an incapacity challenge, you’re almost always better off instead having witnesses execute contemporaneous affidavits attesting to all those facts that will support a finding of capacity under the laws of your jurisdiction.
Of course, then cases like Patterson-Fowlkes v. Chancey come along where the videotaping of a will execution pays off.
So, what good stuff was on the tape of Ruth Chancey Wright executing her will?
On the videotape, Wright was asked who were the members of her family. She “immediately” identified her sister, brother, and her sister’s children. She also identified her two grandchildren to whom her property was bequeathed and she also named her great-grandchildren. The Georgia Supreme Court didn’t hold it against her that she got the ages of her great-grandchildren wrong. After all, Wright was 90 years old when she executed the will.
Initially, Wright was vague when asked how much property she owned, stating that she owned “quite a bit.” She was pressed, however, and claimed she owned 200 acres. This was incorrect. She lived on just under 7 acres, but the adjacent family farm was over 60 acres. Wright also incorrectly stated that she owned two separate 100-acre tracts of land. Again, the court didn’t hold this against her presumably because she went on to express how she wanted her land divided up, which was consistent with how it was divided up in her will.
Although the videotape backfired on the caveator here, it’s worth noting that the court described the videotape as “a linchpin” of the caveator’s challenge. And, if there’s a videotape, it will almost always play a central role in a caveat based on lack of testamentary capacity. The question you need to decide is whether videotaping is worth the risk.