RNH Law Blog

Are Video Wills Valid in Illinois?

The short answer is “no” – video wills are not valid in Illinois.

A video, however, may be of some evidentiary value if the terms of a will are unclear or are being contested, but the video itself will not be considered as a will. As a result, a person cannot transfer estate assets by a video – this can only be done in Illinois pursuant to a written will.

Let’s consider the effect of purported video wills in Illinois.

What Happens if I Only Have a Video Will in Illinois (And Not a Written Will)?

If you only have a purported video will in Illinois you will be deemed to have died intestate (in other words, without a will). Even if your intentions are clear in your video about how you want your assets distributed, Illinois law will govern who is entitled to receive a share of your estate. In other words, for estate transfer purposes, the video will be treated as if it never existed.

What Happens if I Have an Old Will and Then Update it with a Video Changing How I Want My Property Distributed?

The real question in this scenario is how a previously valid will in Illinois can be revoked or modified.

In Illinois, a will can be revoked in one of several ways, such as by physically destroying a will with the intent to revoke it or by creating a new valid will (usually in which the testator explicitly states that the new will is replacing a previous will). If a testator desires instead to modify part of an existing will, this can be done through a writing called a “codicil”. In order to be effective, the codicil is subject to the same requirements as those that govern the making and execution of the underlying will, and the codicil needs to be explicit with the respect to exactly what is being modified in the original will.

Because of these requirements, if a person says in a video that they are revoking their will and that their assets should be divided in another way, this is not enough to revoke the written will unless they are taking some other action (like physically tearing up the old will). If they do tear up the old will while saying that they intend to revoke it, then the old will likely will be deemed to have been properly revoked.

However, as noted above, if the person then announces in the video how their assets should be divided, such announcement will not have any effect. The net result in this scenario will probably be that the person will be treated as having died intestate, since their previously valid written will was revoked.

What Are The Requirements for a Will to Be Valid in Illinois?

Illinois law has five general requirements for a will to be valid. Specifically, to be valid, a will must be:

• In writing. Illinois law recognizes both handwritten and typewritten wills.
• Signed by the testator. The testator is the person “making” the will. If a testator is unable to sign a will because of a physical condition, Illinois law recognizes other ways in which a will may be executed by a designee.
• Properly witnessed. In Illinois, a will must be witnessed by two people in order to be valid, even if it is handwritten.
• Made by a person who has testamentary capacity. The testator must be of sound mind to make a will, which means that they are aware of the general nature of their estate and that they are understand that they are providing for the distribution of their assets by the will. Testamentary capacity does not mean, for example, that the person has a perfect mental state, or that the person does not occasionally forget things.
• Made by a person who is at least 18 years old. In Illinois, a testator must be at least 18 years old; if they are not at least this age then they cannot legally transfer their assets through a will.

Can a Video Be Used Along With a Written Will?

Yes, but the video will not be deemed a part of the will.

Instead, the video might be useful for evidentiary purposes, such as:

• To explain matters that may not be clear in the will. In some cases, the terms of a written will may not be clear. For instance, if the testator bequeathed “my car” to a specific person but then died with more than one car, a video in which the testator described “my convertible” would be helpful to explain which car was intended to be given to that person.
• To help show that the testator was of sound mind. If the validity of a will is disputed because someone is claiming that the testator was not of sound mind, a video of the testator made at the time the will was executed can be helpful in determining whether the testator was (or was not) competent when signing the will.

What Happens if the Terms of a Will Are Contradicted by a Purported Video Will?

Remember, the video itself is not a will nor is it a part of the will. If the video is inconsistent with the terms of the will, the terms of the will shall govern. The video itself can only be introduced as evidence if the will is not clear, and then the video can shed some light on the interpretation of the will. If the will is clear and the video says something entirely different, the terms of the will shall govern.

Should a Video be Created When a Will is Signed?

In most cases, a video is not needed.

Because a will in Illinois requires two witnesses, these witnesses can testify if there is any dispute concerning matters such as the capacity of the testator when the will was executed (although it is possible that witnesses may die or be unable to testify if a matter is contested).

Typically, an experienced Illinois estate planning attorney will generally not recommend that a video be created unless there is a reasonable chance that the will may be contested.

As an example, if a person wishes to not provide for specific family members (such as a spouse or one or more children) who would otherwise be expected to inherit assets, a video of the testator explaining their decision not to provide for such family members may be helpful. The video might accomplish two things: 1. It might show that the testator was of sound mind when the will was executed; and, 2. Their decision was made intentionally, and not the result of an oversight. Instead of a video, the better option in a situation in which a family member is to be excluded from receiving assets is for the testator to explicitly disinherit such persons in the will by stating that it is their intent not to provide for such family members.

For more information about estate planning, please do not hesitate to reach out to our firm.