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John Mann discussing intestacy rules when no will

John Mann providing Q & A on the 2GB Chris Smith Afternoon Show discussing Wills & Estates – 24 October 2017

Tuesday, 24 October 2017 


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



CS       We are talking wills and estates in our legal matters segment. Turner Freeman Lawyers of course provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, wills and estate and property law. The accredited specialist in wills and estates and also in property law is John Mann, he is in the studio. Welcome.

JM      G’day Chris.

CS       The Reg Grundy case before we take calls, I wanted to ask you about this, it has come as a bit of a shock this week and you know we’ve got a long lost daughter that is challenging his will, Reg passed away in May last year leaving his wife Joy absolutely everything that they have and they had a lot. None of the Grundy family’s close friends claim to know this long lost daughter although her lawyers have confirmed her identity. How is this going to play out? 

JM      Well it’s a bit premature I think at the moment Chris, my point of view, I don’t even know whether Reg’s estate is in NSW or QLD or where it is or what his will’s got to say. I’m assuming that he probably does leave everything to his widow. In NSW if she is his daughter whether biological or adopted then subject to compliance with the terms of the Family Provision Act she is entitled to make a claim.

CS       So how would she prove that? Maybe her birth certificate doesn’t name Reg Grundy as her father, how would she prove that and he is not around to get DNA from?

JM      Well that’s going to be extremely difficulty because she would have to satisfy the court that she was in fact his biological child.

CS       And then if she was his biological daughter what right does she have?

JM      Yes every right under the Family Provision Act, a child is eligible to make a claim against a parent’s estate as a matter of right.

CS       Alright we will see how that plays out. Shock from the news this week. Robyn go right ahead. John is listening.

C1       Hi I wonder if you can help me here. I lost my sister three months ago. At the time of my sister’s passing away my niece was my sister’s carer, there was no will or power of attorney. With regards to my sisters funeral and passing because my niece has nominated herself as the next of kin or she was down as the next of kin, any funeral arrangements which have been and passed are now – my sisters ashes, we have no, we are trying to access and find a time for my sisters ashes to be in her prepaid plot that she purchased prior to her passing. Can you tell me any other family members….I’m nervous…..

CS       You are doing very very well, all fine.

C1       I don’t feel I am…….

JM      That’s quite ok. The entitlement to the body or what remains of it belongs to her next of kin and that would be if she has a spouse.

C1       Well her next of kin being one of her children, I mean I was down as next of kin in the hospital too and in the hospital I actually put my nieces name down because my late mother was down as next of kin so legally on any legal documents there is no next of kin to my knowledge but as I said when my sister was in hospital prior to her passing my late mum was next of kin and at the hospital I put my nieces name down firstly and put my name down as next of kin.

JM      The question of who the next of kin is for a deceased person is regulated by the government in the Succession Act. What that means is that if a person dies without a will leaving children, the children are the legal next of kin. They are the ones that inherit her estate and they are the ones that have the right to deal with it, to the exclusion of all others.

C1       Okay so when you are saying it’s actually my sister’s ashes so estate is including her…..

JM      Unfortunately yes that would be the situation and it would only be the next of kin who would have the legal right to say what is and isn’t to happen with the ashes. That is not to say that you can’t make some hopefully amicable arrangements in the family but if not that is where the legal power rests.

CS       Seems a bit odd doesn’t it Robyn. 

C1       It does doesn’t it. Well it’s the question I’ve had answered. Okay then…. 

CS       Hey Robyn, I’ve got a $100 Westfield voucher for you. It was your first call to a talk back station right? 

C1       It was, could you tell? Did I sound that nervous?

CS       No you fessed up, you gave yourself up. You did very well and it’s an issue that you have to deal with and you’ve been very brave to come on and do that. A $100 Westfield voucher goes to your hot hands.

JM      You did well.

C1       Thank you very very much. 

CS       It’s interesting when you say that, like there is almost a principal at stake for Robyn here, it’s not a monetary question she’s asking but it’s a principal at stake and she wondered why the niece has a role in these decisions.

JM      The niece is the daughter of the deceased. It’s her legal right. 

CS       Next of kin. 

JM      Yes that’s right.  

CS       Generally speaking the next of kin wins out over the extended family obviously but what about the husband and the wife? When I go back to the Grundy case John, Joy Chambers was given everything by Reg, the next of kin is the daughter.

JM      Well if Reg would have died without a will and that daughter is his daughter then his wife would take all. If it was the daughter of the wife then it might be a slightly different situation but if it is his biological daughter then if he should die without a will then his next of kin is his widow and excluding all others. 

CS       But he left it all to Joy so he had a……..

JM      Yes he had a will, so that’s simply what his will says, now ordinarily how a spouse, not required but obliged to make consideration for provision for their surviving partner.

CS       Okay, um Reg was not young, is there any time limit associated with this estranged daughter that has come onto the scene decades later.

JM      There are all sorts of considerations there. Because she is a biological daughter, if she is a biological daughter then she has a right to bring a claim. The success of that claim is quite a different matter. One of the factors that the court must take into account is the relationship between her and her father, if there has been what we call in the law an estrangement, if they have been separated, the reason for that estrangement, all those sorts of factors are relevant to the final determination of the case.

CS       So how, what sort of court case goes on from here, presumably she challenges, she’s got a lawyer already. Where does the lawyer go to? Does he go to a particular court?

JM      Yes it would be an application for what’s called Family Provision in the Supreme Court.

CS       Supreme Court. Okay so then Joy wants to challenge or counter challenge, she has to wait for the outcome of that case before that extra case goes on or can she or can she be joined in that case?

JM      Well that’s going to depend on who the executor of Reg’s will is because the executor of his will becomes a Defendant. Now presuming that she is the executor….

CS       I think so.

JM      You’d think that she would be the Defendant but she may not be.

CS       But then she would be part of the case anyway.

JM      Of course and her own needs and entitlements etc are also considered by the Court in weighing up what the claim, what success the daughter might have in her claim.

CS       And how often are these cases sorted out on the steps of the court room?

JM      I think, well it is compulsory in these cases before it is allocated a hearing date by the Judge that it goes to mediation. Now I think roughly 60 perhaps slightly more percentage of cases settle at mediation.

CS       Is it a smarter thing to do?

JM      Of course it is. It shortens the case, it finalises the case, it gives everyone a certainty of outcome and it also limits the legal costs.

CS       And for the two lawyers involved in doing the mediation or negotiation, they understand the outcome of how these cases go so they can give a guide rule to their client as to what is expected.

JM      Yes but like any other negotiation when people come together to meet, they all have a particular position. The central element of mediation is compromise so that each side are not going to get their best case but they meet somewhere in the middle but everybody walks away more or less satisfied but with a case at an end.

CS       Right okay. Difficult times and I know a lot of the population will be watching the Reg Grundy case with a lot of interest because you know people are in those positions very quickly. Thank you so much for coming in John.

JM      Thank you Chris.

CS       Great to have you here. John Mann from Turner Freeman.