John Mann discusses estate litigation matters on 2GB

Monday, 21 April 2020 

***********************

DK – Deborah Knight / JM – John Mann–   C1,2,3, etc – Callers 

************************

DK      As we do every day, we look at legal matters with Turner Freeman, and with so many concerns about Coronavirus, a lot of people are looking at their wills and making changes, and all the restrictions too I’m gathering means that many law firms are having to get creative, and lawyers are having to sign up client’s wills, sign them over the back of fences, through car windows, and even through the windows of houses because of social distancing. In some cases the witnesses have even gone online. So if you’ve got a question regarding wills specifically today, or any legal question, give us a call on 131873, and as always there’s the $100 Westfield voucher to give away to the caller who asks the best question in our legal matters segment.

John Mann is a partner in the Turner Freeman Parramatta office, he specialises in unfair wills and he’s on the line for us today. Hi John.

JM      G’day, how’re you going?

DK      Yea good. Have you had to get creative with wills now that everyone is social distancing?

JM      The social distancing is causing a great deal of difficulty. To be a valid will in a strict legal sense, the document has to be signed by the person making it, and at the same time in the presence of two witnesses who also have to sign and certify that they were there at the same time and saw the signatory at the same time. So, effectively you’ve got a group of three.

DK      So how are you doing it?

JM      Well, that’s contrary to the social distancing requirements at the present moment. Now the law has a recognition of a document that may not have complied with the formal legal requirements, but nonetheless can be construed as a will. This is section 8 of the Succession Act, which is the legislation that currently covers the situation. Now, the court can recognise a document. The document can be a piece of paper, it can be a tape recording, it can be a disc, it can be a computer record of what a person’s intentions are in their will and provided the rule that is to be adjudicated by the court, it must be a document, it must contain the testamentary intentions of the person making it, it other words it must be what they want to happen to their property when they die, and the third requirement is that that particular document is their will, without reference to anything else.  It’s not a shopping list saying what I’m going to say to my lawyer when I go and see them, or whatever else, that is my will and that’s how the court will then recognise that as being a valid will with those three elements.

DK      And what about older people who might want to change the will, you know, they can’t leave the house, can they do virtual witnessing? Is that allowed?

JM      No. Well not under the current legislation. We’re told that there is going to be some amendments to the law, but what precisely those will be, I don’t know. Now at this moment, the best thing I can recommend to a client is if they cannot get two witnesses, if they can only get one or can’t get any, nonetheless they sign the document and endorse on it words to the effect that until such time as they make a further and formal document, that particular one now signed by them is intended to be and constitutes their will.

DK      So it will cover them until these amendments are made?

JM      Well it would cover them in any circumstances actually, whether amendments are made or not, because particularly in situations like this where people may be isolated completed because they’re either infected or recuperating or whatever else, they can then make a will and that will be recognised in the circumstances, I’m sure, as being a will. Even though it doesn’t comply with the full legal requirements.

DK      Alright, well that’s a good interim that people can do, that’s fantastic advice. Now Gordon’s on the line, let’s get to some of these calls that have come through. Gordon is with us in Kingsgrove with a question for you. Hi Gordon.

C1       Good afternoon Deb, John.

JM      G’day.

C1       A strange one for you, and I think I know the answer, but I’ll give you the details. My mother passed away a few months back now and my youngest two brothers were named executors. They duly sent out a copy of her will to all of the grandchildren, now predominately the grandchildren were nominated as beneficiaries, my mother looking after their future, and I was somewhat surprised to then learn that there was a second will, undated, unsigned but it named two more people to be beneficiaires, and then my brothers said, oh look that’s no problem, that’s what mum really wanted but she didn’t have a chance to change her will before she left this world. We’ve approached all the grandchildren and they’re all prepared to take a percentage less so we can fit in these other two people.

JM      yes…

C1       I just find it strange that an unsigned, undated will from my mother and on my two younger brothers’ say so, and I must say at this point John I am not a beneficiary in any way, shape or form, it’s the grandchildren who I’m concerned that they are all being asked to give up a percentage of their inheritance to take in these other two people who are not grandchildren, in fact one is the wife of one of the executors, and the other….

DK      Is that something that can be challenged then John?

JM      It takes us to exactly what I was saying prior to the call. And that is, whether the court will give recognition to that unsigned, undated document as constituting either her will or an amendment to her will. Now that requires evidence, and the court has to be satisfied that all persons who are effected by the recognition of that informal document have a right to say or be heard, and considering that whatever evidence comes from that, the court will then declare whether or not that document is a will or an amendment to the existing will.

DK      Alright, I hope that helps you out Gordon. We’ve got a few more calls to come through so we might take a quick break John and we’ll be back with more right after this.

DK      12 to 2 and we’re talking wills with John Mann from Turner Freeman Lawyers, if you’ve got a legal question, 131 873 is the number. Steve is on the line in Russell Lea, hi Steve. No, we don’t have Steve? Ok, let’s go to Steve in Campbelltown, what’s your question Steve?

C2       Look, I’ve just got a general question about where our wills are lodged, simply my wife and myself are in our 60’s, we’re retired now and back in 95 when our children were first born our parents advised us that we should get a will, so we trotted off to the local public trustee office and just filled out a basic will leaving everything to each other or our two children. That’s still valid and we’re happy with that, and as far as I know the Public Trustee are classed as executor and trustee of our will. But we’ve had people advising us lately that, you know, we really should have our wills done properly through a firm of solicitors and that if we leave it with the Public Trustee that its harder for our children to get that will executed, and there’s a lot of fees involved.  So I’m just wondering, should we have it with a lawyer or is it ok to keep it with the Public Trustee.

JM      Well that’s purely a personal choice for you to make. The Public Trustee, now the NSW Trustee & Guardian, will be the executor appointed in your will. It would mean also that your children would have no particular control in the administration of the estate when the survivor of you passed away. If you were not unhappy with the content of your will, you can make a codicil, which is an amendment to the will, which appoints one or all of your children as executors, or somebody else, its entirely your free choice. If you do those through a solicitor, the solicitor will generally retain the documents for you free of charge. If you do it again with the Trustee & Guardian, well they would obviously retain your documents. It’s a personal matter.

DK      There you go, so we’ll try the other Steve now in Russel Lea, have we got you there now Steve?

C3       Yes thank you. Good afternoon Deb and John, thanks for taking my call. I have a question about preparing a will for an immediate relative, say for example a parent, and if you are a beneficiary under the will, can you actually prepare the will? I’ve heard that its called a thing of undue pressure, or influence, or collusion.

DK      Alright John, can a beneficiary under a will prepare it.

JM      There’s no particular prohibition on that, but as you say, there is a presumption in family situations like that of what we call undue influence. So to do that would need great care and to make sure that there is no repercussions from that, it would be best if everybody stood at arm’s length.

DK      Hmm ok. We’ll try and punch through some more of these questions if we can get to them.  We’ve got almost a full board here and we’re running out of time quickly. Leticia, have you got a quick question for us?

C4       Hi, yes hello. I’m ringing in regards to my parents’ will. I know that when they pass away it goes to each other, and then when they are both gone it goes to me and my brother or our children. My brother has actually passed away now, and we really have nothing to do with his wife and he has not children. So what happens with that? Plus they’ve moved.

JM      Well that of course would depend on the context of the will. The answer is, depending on how the will was drafted, it would either go to his wife, depending again on how its drafted, but otherwise if there are no children, it would go to the survivor, so in other words, to yourself. I’d need to see the will in order to verify that.

DK      Hopefully that’s a starting point for you Leticia. John’s got a question for us too, hi John.

C5       Yes, is a will made using a will kit legal?

JM      Yes. Provided the formal requirements are met as to signature and execution, then yes.

DK      There you go, that’s a perennial question you always face John, isn’t it? And I’ll give you Wanda’s question, she’s asking do you need one or two witnesses for a will.

JM      Two. But if we’re going to do it on this informal basis in this present situation, if there is one that is better than none.

DK      There you go. And Pam’s always asking a question, if we’ve got a quick one from you Pam, if you can give us that question from Canberra, hi Pam.

C6       Thank you, I’m a bit old and slow. Look I’ve only just realised, I don’t know how its happened, that I don’t have enduring power of attorney and I’m very unwell and isolated, I’m 80, and I’m just wondering is there any way it can be done without my having to go to a solicitor?

DK      Oh, is there any help there John?

JM      If it’s to be an enduring power of attorney then its difficult because a legal practitioner has to endorse a certificate on the document that you are explained the nature and effect of the document and understood that when you signed it.

DK      Hmm. You know what we might do. We might get Pam’s details for you John because we are out of time unfortunately, and see if you can get an answer for her separately as well, so if Pam can stay on the line and we’ll see if John can help you out separately. As for our $100 voucher, I reckon Leticia, do you think we can give that to her John.

JM      Yes, by all means.

DK      Alright, we’ll give Leticia the $100 Westfield voucher as we do every week for the best caller for our legal matters segment. Good on you John, thank you so much for calling in. Oh, he’s gone already, he’s so busy. If you want to get in contact with Turner Freeman Lawyers, the website is turnerfreeman.com.au or call 13 43 63.