Lights, camera, attestation: the role of video recordings in will challenge cases

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 difficult question for a judge to determine.

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. 

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 effect 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 off 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, 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. 

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 influence 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.

After setting out the legal principles applicable to both lack of knowledge and approval and undue influence, HHJ Jarman KC considered and accepted evidence (including from the solicitor who drafted the July 2020 will), including the following: 

1. the testator had sufficient 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 reflect 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.

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 fluently and unprompted at least while the recording lasted and alert”.

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 influence (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 “fluently”.

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. 

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 office 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. 

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’ office where the testator spoke conversationally to her family members, were 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 effect. 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.

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.