Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 100
Lights, camera, attestation: the
role of video recordings in will
challenge cases
by Jacob Ward, Paul Hardwick, Partners & Mollie Biggadike, Associate at Macfarlanes LLP.
even where some of those weaknesses are present.
HHJ Jarman KC (sitting as a High Court Judge)
had a positive reaction to the use of recorded video
evidence taken by two of the Defendants, capturing
the testator’s wishes around the time that a contested
will was signed.
Will challenges are an exercise in reconstruction.
The key witness is no longer able to speak for
themselves. The question is whether, at a particular
moment that may be long in the past, a now-dead
person had capacity to understand their will. In
one famous example, the court asked whether, if it
had been thought advisable to rouse the deceased
from her coma and read her the clauses of her
will, she could have understood them. It is hard
to imagine a more di昀케cult question for a judge to
determine.
One of the claims in Patel v O’Sullivan concerned
the validity of Kantaben Patel’s will dated July 2020
- which replaced a will signed a month previously
in June 2020. After Kantaben’s death in December
2020, her daughter (the Claimant) challenged her
will on the basis of want of knowledge and approval
and undue in昀氀uence exerted by the testator’s son
and the testator’s sister-in-law. The Claimant sought
to uphold the June 2020 will, which was more
favourable to her. There were no challenges to the
July 2020 or the June 2020 will on the ground of
testamentary mental capacity.
Judges must therefore piece together a picture of
the testator’s intention, state of mind and health,
from the evidence that remains. That may include
medical records (before and after the testator’s
death), witness accounts, solicitors’ attendance notes
and documentary evidence. This is an imperfect
exercise, stitched together after the event and where
no single source can tell the whole story.
After setting out the legal principles applicable to
both lack of knowledge and approval and undue
in昀氀uence, HHJ Jarman KC considered and accepted
evidence (including from the solicitor who drafted
the July 2020 will), including the following:
An uncommon but powerful form of evidence
is the use of recordings of the testator themself.
Where such evidence is used, it can be compelling:
as the Australian case of Zorbas v Sidiropoulous
(No 2) [2009] NSWCA 197 put it, “perhaps the most
compelling evidence of understanding would be
reliable evidence (for example, a tape recording)
of a detailed conversation with the deceased at the
time of the will displaying understanding of the
deceased’s assets, the deceased’s family and the
e昀昀ect of the will.”
Such recordings are often regarded with caution
by testators. There are natural concerns that small
imperfections or mis-speakings will be used to
suggest the testator lacked capacity. The evidence
may be criticised as illegitimate or staged, especially
if it is possible that persons were present o昀昀 camera.
The recent decision in Patel v O’Sullivan [2026]
EWHC 801 (Ch) lends further encouragement to
the strength of recordings as evidence of capacity,
EXPERT WITNESS JOURNAL
98
1.
the testator had su昀케cient command of the
English language to instruct her solicitor in the
meetings she had with him and understand the
contents of her will before signing it;
2.
the testator chose to execute a new will in July
2020 because the June 2020 will did not re昀氀ect
her wishes;
3.
there was evidence of the Claimant’s controlling
behaviour over the testator, including in relation
to the June 2020 will; and
4.
video recordings of the testator taken by her son
and her sister-in-law, a few days before the July
2020 will was executed and on the day of the
signing of the July 2020 will.
AUGUST 2026
