Videotaped will ruled valid by Supreme Court after challenge by estranged wife
A Gold Coast man whose girlfriend demanded he make a will before picking up his new motorcycle — which he crashed the same day — has become the subject of a Supreme Court battle over his estate.
- Jay Schwer’s estranged wife challenged his videotaped will, which left her nothing
- The Supreme Court found the video clearly stated Mr Schwer’s intentions
- It found his failure to fill out the proper forms was due to his head injury
Jay Schwer, who served as a soldier in Iraq with the US armed forces before moving to Australia, did not make a written will, but instead recorded a video.
“It’s Monday the 21st November 2016,” he said in the recording.
“My girlfriend would like me to do a will before I pick up my motorcycle. As I’m too lazy, I’ll just say it. Everything goes to Katrina Pauline Radford if anything was to happen to me.”
Mr Schwer, who went on have a baby girl with his girlfriend, also made provision for $30,000 in education expenses and other assets for his other daughter, born to his estranged wife Nicole White.
But he was adamant about one thing.
“Nothing, I repeat, nothing, will go to my soon-to-be-ex-wife … and yeah, I’ll fill out the damn forms later. But as sound mind and body everything goes to Kat.
“Other than that everything’s good … I don’t plan on dying today, hopefully.”
Just hours later, Mr Schwer crashed his new motorcycle, suffering a significant head injury.
He survived the crash, but died 14 months later after a self-administered overdose of prescribed painkillers following his discharge from hospital after surgery.
There is no suggestion he deliberately took his own life.
A tug of war ensued, with Ms White challenging whether the video constituted a will and taking the fight all the way to the Queensland Supreme Court.
But the court ruled in favour of Ms Radford, with Justice David Jackson saying the video constituted a document and clearly stated Mr Schwer’s testamentary intentions.
“First, at the time of making the video recording, Mr Schwer clearly intended that it was to operate in the event of his death, possibly in the near future from riding his motorcycle,” Justice Jackson said.
“Second, that he stated that he intended to ‘fill out the damn forms’ at some time in the future did not displace his intention that the video recording was to operate as his will in the meantime.
“Third, the delay in Mr Schwer attending to ‘fill out the damn forms’ subsequently is readily explained by his head injury suffered in the motorcycle accident, and associated loss of memory of the day on which he made the video recording.”