Video Wills in North Carolina: Video Yes, Will No

Video wills look really cool in the movies.  And they are increasing in popularity, especially as the number of people with their degree in TV law are deciding this is the way to go.  And of course technology makes it easy to do.  And it is cool!  But TV and movies notwithstanding, video wills are NOT valid in North Carolina or, for that matter, in most other states. 

That is right, if you are a resident of North Carolina, and your only will is a video will, you don’t have a will.  Period.  And having a written will that says “see my video for further instructions” won’t work either, so don’t even go there.  This is true, in part, because for a will to be valid and admitted into probate under North Carolina law it must at minimum be in writing and signed by the testator.   (“Testator” is legal-speak for the person making a will.)

There are other requirements for a valid will and, of course, the fact that it is valid does not mean it will do what the testator thought it would—even if it is clear what they wanted.  But we don’t even start the conversation without a writing signed by the testator.  (The only exception to the written requirement: NC recognized nuncupative, i.e., ‘deathbed’, wills.  But there are stringent requirements and even then they have very limited effect.  (See our FAQ section for more on nuncupative wills.)  So, a video will by itself is not counted as a will at all.

So, is there any reason to have a video will if it won’t be recognized under North Carolina law?  Usually, no.  But there could be a couple of reasons it might be useful.

Sometimes the person making a will (who, again, is called the “testator”) is worried that his or her family members will challenge the will on the claim that the testator was mentally incompetent or under some sort of undue influence when the will was made. In this instance, video of the testator reading and signing the will could be used to provide evidence that the testator understood his or her actions, that the will was properly signed and witnessed, and that the testator’s written will is, in fact, valid.  Setting up the video to lay this groundwork properly would require knowledge of legal challenges to a will (called “caveats”) and the rules of evidence.

Another popular reason for making a video will in addition to a written will is to use it as a “final message” from the testator to loved ones.  In this scenario, the written will does the legal stuff, but the video gives the testator a chance to explain certain provisions in the will.  This can be attractive if the testator is doing something unusual and does not want it misunderstood.

The video can also serve as a guide for family members in ensuring that the testator’s wishes are fulfilled though, again, it is the written will that is binding and must contain the properly drafted instructions.  Finally, sometimes the testator has something he or she wants to tell someone after, but not before, the testator’s death.  A video left with the right person (usually the attorney) provides a way to do this.  (Though obviously this could be done in writing as well.)

If you’re debating on whether a video will, in conjunction with a valid, written will, is a good idea for you, we would be pleased to schedule a consultation to review your situation.