John Mann accredited specialist on 2GB discussing Wills & Estates

Tuesday, 16 October 2018 

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CS – Chris Smith /JM –John Mann /C1,2,3, etc – Callers 

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CS       Well contesting a loved one’s Will can air a lot of dirty laundry in a very public setting and when the case involves a well known Australian, it can draw a huge amount of attention to family matters that everyone would rather keep private. Now Broncos star Darius Boyd recently made headlines after his grandmother made him the sole beneficiary of a substantial Estate and his own mother contested the Will. Rochelle Boyd didn’t receive any share of Darius’s $600,000 windfall. She decided to take the matter to Brisbane District Court last month. She asked her son’s lawyers for a significant slice of his inheritance, which Darius agreed to – leaving her with $100,000. But what if Darius had refused, what would have happened then? Now, if any of you are facing a similar situation to Darius or perhaps you are in his mother’s shoes, how about we talk about it and maybe even find a solution for you. 131 873 is the telephone number – because we’d love to hear any of your questions on Wills and Estates courtesy of Turner Freeman Lawyers and as I say, I’ve got a $100 Westfield voucher to give away once again to one of our callers this afternoon.  Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, Wills and Estates and property law too. They’ve got NSW offices in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong. They’re QLD offices in Brisbane, Logan, North Lakes, Ipswich, Toowoomba. the Gold Coast, the Sunshine Coast and Cairns. John Mann is an accredited specialist in Wills and Estates and property law. He’s based in their Penrith office and I’ve got him online right now. Hi there John.

JM      G’day Chris.

CS       Now in this case, Darius has agreed to pay his mother a slice of his inheritance. Why couldn’t he have done that outside of Court? Why couldn’t have gone over to his mother’s place and said well, mum as you know – I’ve got $600,000, here’s your $100,000 – let’s call it quits?

JM      Of course he could.

CS       And why didn’t they?

JM      I have no idea what motivates these things Chris – but the mother – the daughter of the deceased has rights under the Family Provision and it would be fairly obvious I would have thought that when any competent lawyer in QLD that if the mother’s situation is fairly dire and the son was very well off, that it evitable, she gets something out of the Estate.

CS       Yeah and this is something that Family…… well families need to understand that when they put their Will together, if they start saying that particular close relative of mine, namely my daughter is getting nothing – you can bet its heading to Court right?

JM      Very likely yes. Because the Government statutes give them the right to make that claim.

CS       And it also depends on their status – their income status – like Darius – sizeable pay cheque through the Brisbane Broncos – but his mother living a share house on a Disability Pension. This was always going to be part of the Courts – Will – that she should receive some of her mother’s money.

JM      Well Chris unless there was some very compelling reason – which I am not aware – almost certainly she would get some part of the Estate – the quite substantial part of it I expect.

CS       Yes  – exactly. We’ll come back to that case in just a second. Let’s try and get to as many callers as we can. 131 873.  John Mann is from Turner Freeman – 16 minutes away from news time. Graham in Brisbane – go right ahead.

Caller 1 – Graham

Graham          Hi Chris and John. Look I’ve always been mixed up between Executor and Trustee – what’s the difference – or are they the same thing please?

JM      That’s a good question. Because very often in our Wills we say “point X” is my Executor and my Trustee ” .

Graham         Yes.

JM                  Now they’re two separate things – the Executor’s duties is to get Probate of the Will – to pay the deceased’s debts and distribute the Estate according to the terms of the Will. However, there might be parts of the Will that are given to other people – for example children who are under age – once the Administration part is complete the Executor more or less metamorphoses into a Trustee and then he holds the assets on trust for those children until they come of age. It’s a fairly abstruse legal concept. But it is possible also in your Will to have one person as your Executor and another as your Trustee.

Graham         Oh. Yeah. So you say – you could have separate ones like you have one Executor and one Trustee?

JM      Yes indeed.

Graham          Oh  okay. Oh – that’s great. All right – thanks…

CS       All right Graham – thank you very much for that.  Mark in Liverpool – go right ahead – John is listening.

Caller 2 – Mark

Mark              Yeah –  Hi John. Just wondering whether myself and my siblings would have any entitlement to my grandmother’s Estate – she passed away recently but my father passed away 12 months ago – he passed away before his mum.

JM                              Did she have a Will?

Mark                          We don’t know. Everyone is being very tight lipped about it. I believe she did but one of his surviving – one of my surviving – his surviving siblings said there is – but no-one has heard any more.

JM      Well, I think that’s the first thing you’ve got to find out if there is a Will because sometimes Wills provide that if a gift to a person fails because they die before the testator, now then the gift they would have got is then distributed amongst their children. There are also some provisions for that in the Succession Act, but you’d need to know what the Will said first.

Mark              Yep. Assuming if there was nothing in the Will – is there something that we should pursue or not worry?

JM      Well possibly, but grandchildren are not necessarily eligible to claim automatically. They have to prove that not only are the grandchildren but at some time they’ve been dependant on the deceased person for financial support and part of their household. In other words if you have been brought up by your grandparents, that would mean that you could be eligible to claim, but this is just an ordinary arrangement where you know – you see your grandparents from time to time ……when they get their Christmas presents – that’s not enough. It’s got to be a financial dependence.

Mark              Yeah – no – just an ordinary arrangement – we – were just thinking of what would have been dad’s entitlements – what happens with that – that was all.

JM      But certainly – you are entitled to a copy of the Will if you know who’s got it and then you can ask for one.

Mark              Okay.

CS       Good on you Mark – thank you very much for the call. Now if you want to contact Turner Freeman directly, you can in NSW 1300 237 112 or in QLD 13 43 63 – Back with John Mann and your calls right after this –

Back with John Mann from Turner Freeman – 8 minutes away from news time. Betty go right ahead.

Caller 3 – Betty

Betty   Oh hello

CS       Hi Betty.

Betty   It’s regarding a Will – if one of the beneficiary has passed away, is it automatic that the remaining beneficiaries would have that divided between them – that share? Without having to go to a solicitor again to re-do the Will or out of codicil?

JM      Well – this is after the person who made the Will has died?

Betty   No – one of the beneficiaries named in the Will – one of the beneficiaries has passed away. Would that share of that one that has passed away, would that automatically go to the remaining beneficiaries divided between them?

JM      Yes – but is the person who made the Will alive or dead?

Betty   Yes – that’s me.

JM      That’s you – you’re alive.

Betty   Yes.

JM      Well you can make whatever change you like – but it also depends on what your Will says if example your Will can say, I want my Estate divided up amongst so many of these 5 people who survive me – in which case…..

Betty  Yes.

JM      In which case then if someone’s died – the others would take their share – but if there ……

CS       But Betty I get the feeling that you don’t want to pay a penny more to the solicitors.

Betty   But – well I’m wondering if I have to. Is it covered by not doing that?

JM      Well I couldn’t really tell you much without seeing your Will.

Betty   Yes I can see now what you mean – it depends on the wording….

JM      That’s exactly right.

Betty   Oh I get you – yes. All right then – That’s I…….

JM      Betty – if one of your beneficiaries has died – I suggest that you review your Will.

Betty   Yes And not just trust your luck that it will be okay..

JM      No – I’d get some advice.

Betty   All right…..

CS       That’s good advice – and it won’t cost you too much Betty – thank you very much for your call. Brian – go right ahead.

Caller 4 – Brian

Brian     Hi Chris. Hi John

CS       Hi.

Brian  A question – my father passed away last – 2 months – my sister and I were made Executors of this Will. I found out recently while I was doing the tidy up of the Will and everything – there is a substantial amount of money – around about $25,000 taken from his account and taken actually by my sister – around about a month and a half before he died – he died of cancer. I’ve been told – not by a legal person – that it doesn’t matter – what was done prior to his death – the actual Will can only cover those items that he held at his time of death – so my question is, is do I have any recourse? There’s no proof that this was gifted– he was terminally ill and basically incapable of anything – yet this money has been withdrawn from his account via the internet and……

CS       This would be a common problem John – would it not?

JM      It certainly is. Now – it depends entirely on the circumstances in which the money was taken. If you’ve got evidence that it was wrongly taken, then as an Executor it would probably be your duty to try and recover it from the person who took it. When a person dies, it’s the totality of their assets that forms their Estate – that can be monies owing to the deceased or it could be something like this where somebody has wrongfully taken the money and it’s subsequently recovered. It becomes and asset of the Estate.

CS       So how does he go about doing that? I’ve only got about 30 seconds John – how does he go about doing that?

JM      Well – he’s got to investigate the circumstances in which the money was taken in the first place – very often it’s taken by the Attorney under a Power of Attorney and the Attorney says – oh no no – he gave it to me – or it was authorised or whatever else – they can be really difficult to prove.

Brian  But – she said it was being gifted to her – but we have no evidence that that is the case  – Dad changed his Will at a later stage to overcome this very problem.

JM      Yes – well.

CS       A tough one.

JM      It is – it is. And it all depends on the circumstances of how the money has disappeared.

CS       And Brian – I’ll give you a $100 Westfield voucher – you are our last caller this afternoon – but thank you very much for calling in – a tough situation to be in. John Mann from Turner Freeman – always helpful mate – Thank you very much for coming in.

JM      No problem at all mate.

CS       John Mann – Turner Freeman.