John Mann discussing Unfair Wills & Estates on 2GB – 17 November 2020

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

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Listen to the podcast

Read the transcript below:

DK      Now this is always a popular topic.  Will and Estates and I’m chatting with John Mann. Special Counsel at Turner Freeman Lawyers.  If you’ve got a question, 131873.  We’ve also got a $100 Westfield voucher for the lucky caller who asks the best question for us today.  John.  G’day to you.

JM      G’day Deb, how are you?

DK      Very well. Very well.  We’ve got some calls coming through.  I’ll get to them in a moment.  But I wanted to start with this case in Sydney.  This couple from Birchgrove.  Now they struck this agreement – a verbal agreement with their neighbour of her property.  How common are verbal agreements when it comes to Wills and Estates and how easily are they to enforce?

JM      Well, by their nature, they’re very rarely in writing – the promise is using base of one to the other verbally.  They do have some considerable difficulties of proof, because very often the person who’s made the promise to do something is dead and unable to speak.  So that those matters do create forensic difficulties with sorts of cases.  Obviously in this one, the Judge was satisfied that there was an agreement and that was the terms of the agreement and has enforced it.  It isn’t unusual for someone to say to their eldest daughter “well if you stay at home and look after me, I’ll give you the house”.  But it’s not always in writing. It might be in writing but the cover it would be a Will – it was consistent with the promise – well in this particular case the Will was totally inconsistent with the agreement that had supposedly been reached.   

DK      Yeah – because it was an interesting one – the woman left her Estate to her brother and sister equally – neither of them expected or ask for the properties and in the end, when it was all done and dusted, the woman’s lawyer and both her siblings had all passed away and the Judge decided to award the properties to the couple because that verbal agreement to say they would look after her and that would be the agreement in exchange. I mean – I guess it’s a tough one as you say – it’s their word against yours.

JM      That’s precisely it.  As I say – the questions in proof in those sorts of cases make it quite difficult.

DK      Alright – you might have a question. 131 873.  John Mann is with us from Turner Freeman Lawyers.  That $100 Westfield Voucher for the best call. Rita’s first up.

DK      Rita – have you got a question for John?

C1       Yes I have.  We would like to know, can you get a copy of the person’s Will if they have passed away?

JM      The answer is that you usually can, provided that you can fit into a certain category.  If you are the next of kin and I mean the legal next of kin of the person; If you are a beneficiary of their Will; if you are a person whose entitled to share their Estate if they don’t have a Will; if you’ve been named in a previous Will, those sorts of situations, you are entitled to ask whoever is holding the Will – this may or may not be the person themselves – I think you see a solicitor – to produce a copy – you’re entitled to have a copy.

DK      Alright Rita.

JM      It also applies if you are bringing a case against the Estate that you could also require a copy of a Will.

DK      Alright – I hope that answers your question.  On the email too, a question from Craig; he’s saying “My mum passed away six weeks ago.  How long after should a Probate Notice be listed in the newspaper and should beneficiaries be advised when this is listed?  He’s also asking about the Power of Attorney.  Does that cease upon death?

JM      The answer is “yes”.  The Power of Attorney ceases on death unless it is a very special one – which is very rare.  The advertisement for Probate should be made pretty much soon after you’ve got the Death Certificate available. The only reason the advertising is required these days, is that it calls for any persons who might claim to be a creditor the Estate.  It’s all done online today too rather than published in the local paper.  But that’s the sort of time – it doesn’t matter – if the application is not filed until some time after that – but it requires a 14 days advertising before the application can be made – so you – generally speaking as soon as the Death Certificate is available would be a good time to do it.

DK      Okay. Tony, what was your question for John today?

C1       Oh hi.  I’ve got a bit of a weird one.  I was adopted or illegally adopted by my natural uncle overseas, brought here when I was 7 – did not find out until I was close to 20 that I was adopted and he died.  His wife is – we’re not on talking terms at the moment and she says I don’t have any right to any of his Estate. Do I have a case?

JM      It’s very difficult for me to comment on that because that sounds like it’s going to involve English Law.  In Australia, an adopted child is treated exactly the same way as a biological child and has the same rights to make claims against Wills and those sorts of things.  Whether that applies in the UK, I’m sorry I can’t tell you that because I just simply don’t practice in that part of the world.

DK      Alright.

JM      I think you’ll need to speak to a lawyer who has some expertise in British Law.

DK      We might hang on to your details Tony and we’ll see if we can – John might have someone he can recommend to you to explore that a little bit further.  Anthony is wondering John on the email – he says “I’ve got a Will, but my solicitor since retired.  Do I need a new Will?”.

JM      Not necessarily.  The Law Society of NSW keep records of what becomes to solicitor’s practices when they retire or pass away. I would firstly enquire from the Law Society whether the practitioner’s been taken over by other lawyers because if the Will was in the custody of the retired lawyer, then the people who have taken over the firm would probably have it.  I’d start there.

DK      Alright – There you go Anthony – that’s your answer from John. Lynne’s got a query for us.  Hi Lynne.

C2       Oh hi Deb.  John – My mother died in – at the end of June this year – her Will was through the NSW Trustee & Guardian.  I rang up to start procedures happening and I didn’t – this is the first time I’ve had to do something like this – and the woman asked me what was the value of my mother’s Estate?  And I said $1,875 and she hung up.  So I rang again and I got another woman and she asked me all this information and asked me the same question and when I said $1,875 – she said “Oh dear – that’s going to be really measly.  Can’t you find any more bills that you can pay to bring it down to zero?”.  I said “No. I’ve covered everything”.  She said “This is going to be really hard”.

DK      Because the amount was considered too small?

JM      You must also remember and this is a reality – that Public Trustee are a commercial body – they charge fees for the work that they do.

DK      Well it mightn’t be much for them though John, but $1800 might be a fair bit for Lynne.

JM      Oh no, no – I – what I was trying to say is that the response you got doesn’t surprise me.  The percentage that they keep in the Estate would be basically very little left.  But unfortunately, whatever the size of the Estate, the same rules apply.  It is possible if there is money in the bank that the bank will pay that out – provided that there’s a Will – Death Certificate and the person claiming – is a beneficiary under the Will – the bank – what they call an indemnity – some banks will – some banks won’t but I’d make that enquiry first and of course the amount is very small and it will be basically economic to make an application for Probate for an asset of that size.

DK      So go straight to the bank would be your advice to Lynne?

JM      I’d call the bank first – particularly – well most commercial banks would generally try and come to some accommodation for a very small Estate in a situation like this – provided the person who’s claiming is entitled – in other words be the beneficiary under the Will and that they give the bank an indemnity guarantee if someone else comes on claims the money that they will pay it back to the bank.

DK      Alright give that a try Lynne – if you don’t have any luck get in contact and we’ll see what we can do is the next port of call. Maria. What was your query for John ?

C2       Hello.  Good day to you both.  My question is – in 2016, my sister passed away – my brother were the executors of her Will – so we then distributed her assets or superannuation fund or whatever – so six us …….. brothers and sisters.  My question is, what do we do next. Is it mandatory to report the distribution and how the assets/items were distributed to the Court?  The problem is that our lawyer passed away 2 years ago – so we do not have any guidance.

DK      Does Maria need to report that John?  The way it’s been split up?

JM      No – as long as she’s given a report to beneficiaries and everybody’s happy – then that’s fine – occasionally the Supreme Court of Probate would order that an executor file what they call “Accounts” but unless in this case – unless one of the beneficiaries is pressing you, I wouldn’t bother about filing Accounts in the Supreme Court – if any of the beneficiaries ask you to account – of course you’ve got to and you’ve got to account to them – but that would be as far as I would take it at the moment.

DK      Alright – there you are Maria. We are unfortunately out of time but it always happen John – it’s a popular segment – but thank you so much for joining us.

JM      My pleasure.

DK      We’ll talk again soon – John Mann there – one of the lawyers with Turner Freeman and if you want to get in touch with John or any of the other wonderful legal team – Turner Freeman – head to the website – turnerfreeman.com.au or give them a call 13 43 63 and our $100 Westfield Voucher – we’ll give that to Lynne from Willoughby who was having a struggle with the small amount in her mum’s Estate.  Legal Matters again this time next week.