Whether you should videotape the signing of a Will and/or a Living Trust is a question sometimes asked of lawyers who do estate planning for clients in the Sacramento area. The first thing to note is that if you ask one estate planning attorney in El Dorado Hills, a probate lawyer in Placer County and a probate litigator in Sacramento County, you may find that there is disagreement among even probate, estate and trust lawyers as to the advisability of videotaping the execution of estate planning documents. Such disagreements are not based upon the rural, suburban or urban location of the probate, estate and trust attorney. Disagreements may be based on anything from previous experience to preference based on continuing education lectures.
With that said and with the knowledge that not all San Francisco, San Jose, Sacramento and Los Angeles probate litigators will agree with me, I'll share my inclination based on experience. We have litigated undue influence and capacity cases in California that included videotape evidence of a Will/Trust signing. The videotapes were sometimes made because a change in the Will or Living Trust was cutting out a class of beneficiaries or maybe just one beneficiary in particular. I won't address videotapes that were made in the ordinary course of some estate planners' practices because more benign videotapes generally don't end up being the subject of an evidentiary hearing or other litigated challenges.
I must admit that I am biased against videotapes. Those that I have seen are for the most part sad - sad because the condition of the testator or trustor either reflects a death-bed signing or an in-office signing with a person with dementia. We lawyers are not really qualified to put on a big show - a fact forgotten by some in my profession. A lawyer asking a dying or otherwise critically ill person whether the lawyer-proffered document is their Last Will and Testament just doesn't look that good on camera. In the same way, the attorney generated videotape of his client's signature of a trust amendment in the lawyer's office may lack artistic integrity. Artistic integrity aside, it if far more telling when the lawyer's direct examination is caught on camera. Such dialogue (with fictitious names and circumstances) might go something like this:
Q: Good Morning, Mrs. Goldmine. How are you this morning?
Q: Mrs. Goldmine, do you know where you are?
A: At the table.
Q: Yes - Do you know who I am?
A: Yes, you are my friend.
Q: Well, I am your attorney, aren't I? [My note - well the attorney ought to know that one.]
Q: Do you know why you are here?
A: To see you?
Q: OK - to sign documents?
Q: And do you want to change your Will and Trust?
Q: How do you want to change it?
A: Burford, my son, who lives with me and takes care of me, will leave me if I don't sign this so he can have something. [Something is usually nearly everything.]
Suffice it to say that some attorney videotapes could be submitted to Candid Camera or the "Dementia Chronicles," if they weren't so sad.
There are many good lawyers that do videotape Will and Trust signings. Those who do it well have systems in place and safeguards that protect privacy and the integrity of the signed documents.
Probate litigators are like emergency room doctors. We only see the injuries or the illnesses. A perfectly videotaped unchallenged Will likely won't be a part of any evidence that I see. We're far more likely to see the deathbed Wills and Trusts that shift a lifetime of estate planning into the hands of a caretaker or child to the exclusion of all other beneficiaries.