Tale of the Tape: Should a Lawyer Videotape the Execution of a Will?
I am frequently asked by probate administration attorneys whether they should make a video recording of a will execution in cases where they anticipate there will be probate litigation involving a will contest after the testator’s death. While video recording generally is considered relevant evidence in a trial involving allegations of undue influence and testamentary capacity, I have experienced mixed results from the use of these recordings. This is due primarily to the elementary psychological precept that different people perceive the same stimuli and arrive at quite different conclusions. Nevertheless, there are a few fundamental rules to keep in mind when a probate administration attorney decides or is asked to video record a will execution for potential use in a later probate litigation trial.
Discretion
Remember that the ultimate decision of whether the video recording will be admitted into evidence is within the trial court’s discretion. I heard of one case where a probate judge refused to allow the videotape into evidence because the videotape was being offered in an attempt to probate a document as a will rather than evidence of the decedent’s testamentary capacity.
We are All Witnesses
Remember too that there are some basic evidentiary matters that affect the admission of a video recording. If the videotape is to be considered for admission into evidence, in addition to it being determined relevant (within the probate judge’s discretion), a proper foundation must be offered by the probate litigation attorney at trial. Simply stated, this means that the witnesses to the will must be readily identifiable so that they can be summoned to testify at the trial concerning the details of the execution, and more importantly, that the videotape is a fair and accurate depiction of the events which were taped.
No Weak Links in the Chain
Equally important in the evidentiary analysis of whether a videotape of a will execution is admissible is whether or not the attorney supervising the execution (or some other person involved in the execution) can establish that the tape hasn’t been tampered with or wasn’t accessible to external forces which could negate its authenticity. What this means is that if the will execution took place in your office, you must carefully secure the tape and make a contemporaneous memorialization of the tape’s location (and record each time it is moved and identify its handlers).
Don’t Hedge Your Bets
Finally, it’s probably not a good idea to either believe or advise your clients that the video recording will guarantee a successful outcome in a will contest after death. While there are no Florida appellate cases directly on point, a Georgia Supreme Court probate case is illustrative of the unexpected results that arise from the different perceptions people have of the same video recording. In King v. Brown, 280 Ga. 747, 632 S.E.2d 638, 06 FCDR 2268 (Ga., 2006). Here, Palmer Rufus Bell had six children. In July 2002, Mr. Bell executed a will in which two of his children shared equally (the other children were disinherited). The probate administration attorney, who presciently recognized the likelihood of a will contest, made a video recording of the will execution. In 2003, Mr. Brown executed another will which was videotaped. At trial, a jury found that the will offered for probate, and which was videotaped, was invalid due to undue influence and incapacity! The jury’s conclusion was even upheld on appeal and affirmed by the Georgia Supreme Court, which noted that the jury can watch the video and draw its own conclusions.