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Sunday, June 04, 2006

SHOULD A WILL SIGNING BE VIDEOTAPED?

Just because a Last Will or trust is properly prepared and signed does not mean it will govern the disposition of a decedent's assets. A successful claim that the decedent lacked testamentary capacity at the time of signing, or was subject to undue influence, could result in a modification or rejection of the Last Will or trust.

If there is a concern over a future challenge, the suggestion is often made that the signing of the documents be videotaped to provide a record of the state of mind of the signor, since the signor will not be able to testify after his death as to these issues. Situations when this might arise include an elderly or frail person, or when former beneficiaries or natural objects of the bounty of the testator are being written out of the documents.

Generally, videotaping should be discouraged. The principal reasons for this are:

-Unless the attorney routinely videotapes ALL signings, the fact that the attorney videotaped THIS signing raises an inference that the attorney himself or herself had reason to believe that lack of capacity or undue influence may have been an issue, and will thus lend some credence to the arguments of the challenger.

-There is a risk that the video taping may not come off well. For example, the testator may appear physically or mentally worse off than is actually the case. The camera may make the testator nervous, or there may be bad lighting or sound. Once the recording is done, if it didn't come off well, the attorney or testator can't merely throw it away with no consequences. If it is discovered that the signing was taped and then the tape was destroyed, a savvy attorney in a later challenge can make a strong argument that the testator or the attorney had something to hide by reason of the destruction of the tape.

-The testator may inadvertently say something that provides ammunition to a challenge that they wouldn't already have. In the hands of a skilled litigator, any word, gesture, glance, can be used to create questions as to capacity or influence. This is not a scripted taping with a professional actor.

There are other mechanisms available to help sustain the validity of a Last Will or trust document - in most cases, video taping should not be one of them.
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