Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 101
Taking this evidence in the round, HHJ Jarman KC
came to the “clear conclusion that the testator did
know and approve of the contents of the July 2020
will”. The judge added that he was “comforted in this
conclusion by the video recordings of her”, which
showed her “speaking 昀氀uently and unprompted at
least while the recording lasted and alert”.
treated as persuasive evidence of both the testator’s
knowledge and approval and that her genuine
wishes – rather than those of others – were being
put into e昀昀ect. What matters is authenticity, timing
and context.
What was also undeniably helpful in this case,
coupled with the video recording evidence, was the
verbal testimony of the solicitor who had drafted
the will. This was supported by contemporaneous
attendance notes, showing a structured method of
taking instructions and explaining provisions of
the will to the testator, plus detailing the testator’s
reasons for departing from her previous June 2020
will. As such, the case reinforces the importance of
solicitors following best practice when preparing
wills, which can carry decisive weight in court if the
will is later disputed.
The judgment went on to quote the transcript of
two of the videos (translated into English from the
testator’s native Gujarati), in which she tells the
person behind the camera: “I have brought you
both to the solicitors, you have not forced me and
I have asked you to take me” and “everything was
done the way I wanted them done and I have not
been forced in any way”. These statements provided
support for the judge’s existing conclusions in
relation to the testator’s free will, wishes, knowledge
and approval of her will and the process leading up
to its signing. Where the testator’s health may have
been peripherally relevant to the judge’s factual
assessment of whether she was susceptible to undue
in昀氀uence (as she was diagnosed with terminal cancer
in March 2020), HHJ Jarman KC also appeared
to take comfort from the image of the testator’s
(physical and mental) health from the recordings,
commenting (as above) that she seemed “alert” and
able to speak “昀氀uently”.
Video evidence will not be right for every case. But
where it is appropriate, it may be more compelling
than any other source of evidence (and particularly
helpful in cases where there is a high evidential
burden; see our previous article). The question
of capacity is a question for the judge not for a
doctor, and the right video recording (especially
when coupled with other compelling evidence) can
transport the judge to the time and the place the
will was made so that they can judge for themselves.
Notably, the judge appeared to give more weight
to (and directly quoted from) the footage where
the testator spoke freely to the camera, rather than
the video where she responded to questions asked
by her son, one of the Defendants. HHJ Jarman KC
described the son’s video recordings as showing him
“putting matters to his mother about her wishes,
some of which were leading in nature, with her
agreeing in a few words”. The judge did not criticise
these recordings outright, but the distinction drawn
suggests that unprompted natural testimony will
carry more weight than prompted answers.
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The timing of the video recordings also mattered.
HHJ Jarman KC’s focus on the video recordings
made on the day of the testator’s visit to the solicitor’s
o昀케ce suggests that the closer in time a recording
is to (a) the giving of instructions by the testator
in relation to a will; and (b) the actual signing of
a will, the greater its probative value. This aligns
with the approach taken to the contrasting contexts
of the video evidence adduced in the Canadian
testamentary capacity cases of Walker v Walker 2025
BCCA 64 and Carinci v Carinci 2023 ONSC 6094.
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Despite the use of timing and context as guardrails
to the utility of video recordings in Patel v O’Sullivan,
it is clear that the videos do not need to be otherwise
sophisticated, lawyered or prepared (indeed,
the opposite might be true). Contemporaneous
videos, taken on a mobile phone in the car to and
from the solicitor’s’ o昀케ce where the testator spoke
conversationally to her family members, were
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AUGUST 2026
