John Mann discussing the roles of an executor

Tuesday, 5 March 2019 

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

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 CS       People tend to think that wills are pretty easy matters that once you have written them up that’s it all done. But as we have learnt over the years especially right here, that’s not the case. There are a lot of factors that can change the final division of assets and many stakeholders are involved. If it is written in black and white and signed by a thousand people, that doesn’t make it final. There are disputing parties, there are lawyers, and there is an executor. So what exactly is the role of an executor and what do you need to think about when putting together a will. Well if you have a question about wills and estates whether it is on that line or another line this is where you get some free advice. John Mann is an accredited specialist in wills and estates and also in property law. John is based at their Penrith office but also see clients at the Windsor and Gloucester offices as well. Welcome to the program John once again.

JM      Hello Chris.

CS       Who is an executor of the will and what is their role? 

JM      An executor is a person or persons that you appoint to be your representative even though you are no longer on the earth. The executors tasks are generally firstly to get probate of your will which is the proof that this is your last will and it is made according to law, to pay your debts and then to divide up your estate as you’ve directed in your will. That’s their task. In years gone by before the amendments to the Coroner’s Act, the executor also had the custody of the body and it was his task to organise the funeral.

CS       Right.  Which is the way that it often works.

JM      Indeed yes.

CS       Can we appoint anyone we want to be an executor? Does it have to be a member of the family or not?

JM      No it doesn’t have to be a member of the family at all. It is someone that you know and trust that will carry out your wishes. Generally it is someone in the family but you can have someone completely outside the family. Quite often if you have young children you might appoint someone like an uncle or someone else, not necessarily someone immediately in the family. There are also professional executor trustee companies including the NSW Trustee & Guardian who carry out the same function although in their cases it is for fees.

CS       Right.  If there are two executors of a will and they disagree after someone has passed how things will go whether it is for a funeral or whether they don’t agree on the division of assets, what happens then?

JM      Well actually executors generally have to work together although in law because the executor is a single entity, even though it might comprise of a number of people, the act of one will bind the others so if somebody gets in first and arranges the funeral then the others are stuck with that.

CS       131873 is the telephone number if you have a question for John call on the open line and he will endeavour to answer those questions. So Neil, go right ahead, John’s listening.

C1       Thank you for taking the call, a will has been written and my father in law has written the will, the daughter has been left everything and the grandkids but on the other side the son hasn’t been left with anything, they don’t have any contact with him and haven’t had contact for many years. Would he would be wise to leave him something as a token gesture and say why he hasn’t left them anything?

CS       Good question.

JM      Very good question and indeed the son is eligible to make a claim for family provision and where he has been left nothing he has no difficulty arguing that proper provision has not been made for him. Situations like this, if there are enough resources it is prudent to give them something. It is no good giving him two bob, it needs to be relatively substantial so you need to think twice about whether you are asking for more but he should also and most importantly make a written statement outside the will as to the reasons why he has made the will in that fashion.  That’s vital because that statement could be given in evidence later on if the son happens to bring a claim.

CS       There you go.

C1       They haven’t had any contact and so he is thinking why do I need to leave anything to him.

JM      Well these things happen very commonly and more commonly than you think. What we basically call estrangements in families where someone hasn’t been in contact with the parents for donkey’s years. Now that can be a two edged sword because if the child says well I haven’t contacted my father because of what he did to me, gives him a very good argument as to why later on he shouldn’t get something out of his father’s estate. Whereas if it is the father’s behaviour towards him that has caused the rift then that could be a completely different consideration.

CS       Good to get your call. 131873. Kelvin hi.

C1       Hi John.

JM      G’day

C2       I am 87 years old I have had a will made for many many years and everything is going to be divided, the house will be sold and everything will be divided between my four children equally. However three years ago one of my sons changed his surname and on the will he is in his right name in the will. Do I have to get the will changed? 

JM      Um no. He is still your son.  

C2       I just thought there might have been some legal reasons, he has legally changed his name, there is no problem with that? 

JM      Not really. He might be nice to clarify but it is not vital.

CS       Not vital is the call from John.

C2       Oh well that’s good, I’ve been worrying a bit lately about it.

JM      The thing is too that people make wills and their residential address might change 27 times, the will doesn’t go off in the hot weather and you don’t need to make those sorts of changes.

CS       Thank you very much for your call Kelvin. Christine from Brisbane, go ahead.  

C3       Hi Chris, my question is that my sister and I are estranged now. My mother had a house and by word of mouth my mother said to both of us that when she passed away I get this much and my sister got more because she lived with her but now that my sister and I are estranged and she has bought a unit and everything. If something happens to her, what should I do?

JM      To your mum or sister?

C3       My sister, my mum passed away and I didn’t get anything but my sister got all of the house and everything and at that time I was just upset that I didn’t do anything about it. My sister moved on and bought a unit.   

JM      Well if your sister passes away then her estate would devolve either if she has a will in accordance with that will or if she doesn’t have a will in accordance with the laws of what we call intestacy.  

CS       Because it’s hers now. 

JM      It’s her property.  

C3       So I couldn’t contest anything.

JM      Well it would be highly unlikely you could have contested it in the first place but in terms of the amount of time that has gone by. Now you would probably have no right to contest your sister’s will at all or her estate.  

C3       I thought that anyway, yeah. Okay then.

CS       Alright good on you Christine, thank you, gotta take a break. Back with your calls.  John Mann of Turner Freeman and talking wills and estates. 

CS       Aldren, go right ahead.

C4       Hello gentlemen, thank you for taking my call. I’m a single parent divorced from 4 years ago. My question is here is that I have a will in place and I have two children, one is under 18 and one above 18. My question is does the other parent have access to my assets. I have specified in the will that the children do get access to it equally after the age of 25 but I have not put the other parents name at all in it.

JM      What are the circumstances between you and the other parent? You divorced?

C4       One single word, bad. We have divorced finalised so I am just concerned that if anything happens to me before my children are 25 or 18, do I need to modify the will?

JM      I think not. Have you had a property settlement with your former wife?

C4       Yes.

JM      Well she may have a right to make a claim against your estate because the statute gives her that. If there has been a property settlement then her prospects of success are highly unlikely so look the answer to that is no. I think you have made the will the way you want it to be then I would leave it alone. I don’t know why you want to make it 25. Legal age is 18. I suppose it is an argument that we don’t have any brains until we are 54. Where do you draw a line, I don’t know.

C4       The only reason I kept it to 25 I would feel between the age of 18 and 25 they may not use the money correctly so I said okay 25. If anything happens to me before they are 18 will the other parent have access to the money.

JM      As long as they are not appointed as one of the executors of the will or have any control of the will and the answer to that is no, they don’t have any claim in it. Apart from the right which I talked about. I have heard that argument before, my dad didn’t leave me any money until I was 40 because I had no brains but between legal age of 18 and subsequently yes they might go and waste it on a GX falcon or something else but the chance of a lifetime might come up when somebody is 19 and if they haven’t got access to the money that might just slip by too.

CS       Alright Aldren, I got to run. Michael in Bronte go ahead.

C5       Good afternoon Chris and John. My question to John, does disinheriting behaviour affect the outcome of challenging wills.

JM      It is a factor yes. It isn’t an entirely complete decisive point but it is definitely a factor that the Court has to consider.

C5       So that could be used in evidence if a will is challenged in the future.

JM      Well yes that was the point I made earlier that if you are excluding somebody that the law says that you should otherwise consider a child, then it is very important to record the reasons why.

C5       My reason for asking this is basically without going into too many details, the will cannot be changed in terms of the one that I am referring to nor can additional notes be made due to the mental status of the person. But given that if one had the will challenged by someone will that still then be used in evidence against them?

JM      If you don’t have a statement by the person who made the will it is not the end of the story. I mean evidence can still be given in the proceedings as to why the estrangement took place and that evidence can come from various sources not necessarily a statement from the deceased person, it can come from members of the family who are also familiar with what happened. But if the will has gone beyond the point of where the person can make another one, then that is the luck of the draw.

CS       Okay Michael I must go. Last call, Russell go ahead.

C6       Good afternoon gents. My sister had a will which wasn’t signed by her and in her last few days of being on the planet she had a family meeting and said many things that weren’t in the will.

CS       And she is passed away.

C6       Now she is passed away.

JM      You broke up there, I didn’t quite get the full story. Your sister passed away without signing the will?

C6       She did. She had a will but it wasn’t signed by her but in her last few days on the earth here she had a family meeting and was telling everyone what she wanted to do with all of her estate.

CS       Before you answer that John, Russell you got the $100 Westfield voucher. This is a curly one, go ahead.

JM      There is no clear answer to that. To be an informal, in other words one that hasn’t been made according to usual legal procedures, generally speaking it has to be a document. Now a document can take all sorts or forms or shapes so if somebody recorded it on their iphone or something like that that may well be taken as being a document.

CS       That is a difficult one. John I have to leave it there, I’ve run out of time but thank you very much for yours. Turner Freeman.com.au.