John Mann discussing Wills and Estates on 2GB – 21 July 2020

Tuesday, 21 July 2020 

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

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

************************ 

DK      Yes as we do every Tuesday, we talk Legal Matters with Turner Freeman Lawyers and this week it’s Wills and Estates – so if you’ve got a question – now’s the time.  131 873. Maybe you’ve had trouble with a family member’s Will in the past and you’re not sure how to avoid it in the future. Maybe you’re worried about someone changing your own Will without your consent – without your approval – and how often should you refresh your Will? If you remarried or if you have another child – do you need to refresh your current Will? Give us a call – the open line number 131 873 and as always, we’ve got a $100 Westfield voucher for the best question during our Legal Matters segment. John Mann is Special Counsel at Turner Freeman and he specialises in Wills and Estates. He’s on the line for us now. G’day John.

JM      G’day Deb – how are you?

DK      Yeah – good – good – good to talk to you on this Tuesday. Now, before we get to the calls – there’s a few through already – we saw this story about an adopted son who felt he was given a raw deal by his biological dad because he was told ultimately that you get what you’re given ,but generally what rights would an adopted child have to their biological parents’ property in a Will? Do they have rights when it comes to adoption?

JM      No – well no they don’t. You see once you are adopted, it’s for all intense and purposes, you are the biological child of the adoptive parent and that’s what the point that the Court upheld in that particular case. Now there are provisions in the Adoption Act where you are entitled to know who your birth parents were, but it gives you no right to succession in their Estates once an adoption Order is made – you become a child of the adoptive parents.

DK      That’s an interesting one isn’t it? You might have a similar question – 131 873.  Let’s kick it off with Chris who’s got a first question for us.  G’day Chris.

Caller 1 – Chris

C1       G’day Deb. How are you?

DK      Yeah good.

C1       Just wondering. My father passed away recently and my step-mother – they’d been married for 20 years and I’m just wondering, do I have access to her Estate as well? She’s passed away as well.

DK      All right, we’ll see if John can help us out.

JM      The answer is not necessarily – if she left you some provision in the past, you may have a right to see her Will but unless you were brought up by her or given financial support when you lived in the same place as her, your rights against her Estate could be very limited with it all.

DK      All right, you might need to get some further advice on that Chris. Thank you for the call on that. Elizabeth – what was your question for John?

Caller 2 – Elizabeth

C2       My first question is – I’ve left a lot of my Will to charities and like there would be about 15 different charities that I’ve sought and I’m just wondering, is that – are solicitors reliable enough to do that? To – all those charities?

DK      So you are just concerned that it won’t go to where you want it to go?

C2       Yeah.

DK      John?

JM      Of course. The most important thing is when you’re making your Will that the charity is properly defined. Some charities are companies, some are trusts, trustees. They take all forms and shapes. But provided they are correctly described in your Will, there is no reason why they couldn’t benefit.

C2       So, it’s up to the solicitor to make sure that that happens and you can trust them to do that?

JM      Exactly so. I mean I do many of these and I usually check with the charities themselves as to how the description is to be of the……. so to make sure that the benefit goes to them.

C2       Okay and can I have one quick one.

JM      Yes.

C2       What happens if the solicitor dies? What happens with the Will? I mean there got things on their tables…….

JM      Ah – if the solicitors already made the Will, then there’s no effect at all. If the solicitor hasn’t made the Will, then it’s a matter for you to make sure you find a solicitor who can make it for you and not pass away beforehand.

DK      It will still stay within that solicitor’s office obviously.

JM      Oh yes.  Once it’s made, it’s a different matter. You should always ask your solicitor when you’ve signed your Will, if that solicitor is going to keep the document and where they’re kept. But the Law Society also keep very close records of solicitor’s practices for the reason that solicitors like all other mortals die and retire and everything else and their practices passed to other people and you can find out through the Law Society who now holds the records of a particular practice of a solicitor who is no longer practising.

DK      All right. That’s a good response. Hope that helps you out Elizabeth. Thank you for that. Margaret. How about you? What’s your question today?

Caller 3 – Margaret

C3       Oh yes – I was wondering. Can a Will be made completely water tight? I don’t want my daughter to have anything at all. Because she’s had everything before this.

JM      That’s a very difficult question to give you a clear answer but the general answer is, in the light of New South Wales State Legislation, the answer is no because the law says if there is a person in your life to whom you might have an obligation to consider when making a Will – if you don’t make provision for them, then they have a right to make an application to the Court to have the Will re-written to give them something from it. Now that doesn’t necessarily mean they will be successful because if you’ve already made sufficient provision for that person during their life, then the Court might say from well you’ve already had your share, you are not going to get any more. There are also – is a procedure where if you have given a child provision during your life, you can apply to the Court to say I want an Order that this child can no longer apply for more provisions for themselves because they’ve already got their share during my lifetime. But the general answer is it’s difficult to prevent a person who is a child who are claiming against the Estate if you leave them nothing. There is a very good – well, recommendation that if you are going to do that, you give a written statement, not in the Will but in a separate document as to why you are not making provision for them so the Court can consider your reasons why you’ve left them out.

DK      All right. Thanks for – make it clear and ensure there’s little doubt as possible. It’s a good question Margaret and a lot of people have that same nagging issue that they want resolved, so I hope that helps you out. Thank you John. Joan’s got a good one for us too. Hi Joan.

Hi Joan are you there – No – we’ll try and get back to Joan. Bill – what was your question?

Caller 4 – Bill

C4       Yes – Hi. My question relates to a Will being changed. If somebody is elderly for example and they write up a Will. A couple of years later they become not mentally capable to look after themselves anymore they are placed in the care of the Trustee and Guardian. Can the Trustee and Guardian change that person’s Will?

JM      No. They can’t – the only person who can change it is the person who makes it. And to do that, that person must have the capacity to do so.  There are legal tests as to whether a person has capacity to make or change a Will. But that cannot be changed by the Public Trustee without the express instructions of a capable person.

DK      All right. A clear answer there. Joan’s back for us. Hi Joan

Caller 5 – Joan

C5       Hello.

DK      Hi Joan. What was your question for John?

C5       What I want to find out is if I ring the Public Trustee, can I cancel the Will that I have got there?

JM      Ah, yes you can, but it’s a very good idea to make it clear that you do so in writing because there are certain requirements about what we call a revocation of a Will and generally a Will when it’s revoked is usually revoked by another one and if you sign the – when you signed you’re Will, it probably would have started off by saying “I revoke all prior Wills…….”. You can revoke your current Will or you can ask the Public Trustee to send it to you or you can tear it up. Even revoke it that way or you can give them a written letter properly witnessed saying that you are revoking your Will but it’s not something I’d do lightly.

DK      Okay – there you are Joan. There’s your response. We’ll take a quick break.  131 873 is the number to call. We are talking Wills and Estates.  Always a popular segment. Lots of calls already through on the board. If you’ve got a question, now’s the time to call. 131 873. We’ll have more right after this.

11 minutes to 2 – let’s get to some more calls. We’re talking Wills and Estates on Legal Matters with John Mann from Turner Freeman Lawyers.  Lots of calls – the board is full John. So let’s get to them if we can. Lucas has got a question for us.  Hi Lucas.

Caller 6 – Lucas

C6       G’day guys. How are you?

DK      Yeah – good.

JM      Good thank you.

C6       So, in 2018 my father passed away. He was estranged from his wife – not divorced – and my mother – they hadn’t spoken for about 3 years prior. After his death, we found a Will that was from 95 which had left everything to her. He had some specific instructions that he had told my sister and [I] about his house, in particular that he wanted the grandchildren to have that house. Through the process, my mother sort of agreed with all of that. But ow that it is signed, sealed and delivered and she has the property, she’s decided that she doesn’t want to do that anymore.

DK      So you are wondering whether you can challenge it?

C6       Yeah – is it too late? Basically that’s the question.

JM      It is – if it’s her property outright. That is a very very difficult task for somebody to force her to leave it to the grandchildren. That’s not to say that these things are not possible because the law recognises what we call testamentary promises where somebody says if you do something for me, I’ll leave you my property, but just simply on a voluntary basis, I bet that may be difficult. Look, it’s a very very technical area. It would depend on what the circumstances were when the Will was made. Whether there [was] agreements at the same time – what those agreements were and so forth are very very tricky questions.

DK      It would be worth following up though Lucas. If there’s – it’s not a definitive …..

C6       Thanks a lot guys.

DK      ….. no….. so it might be worth exploring a little bit further. Nick’s with us too in Rhodes. Hi Nick.

Caller 7 – Nick

C7       Oh hi Deb. Thanks for taking my call John.

JM      Yes. G’day.

C7       G’day. Um. I just want to know if whilst currently going through a marriage separation, I just want to know – I have altered my Will to take my ex-wife or future ex-wife out of the Will, but I’m not yet divorced so if something happens to me and you’re not divorced, would she still be able to contest it?

JM      As long as you’ve changed your Will to exclude her, then that is your last Will – that’s fine.

DK      So it doesn’t matter if the divorce is gone through or not?

JM      No – but where people – where a couple is divorced, the divorce would automatically cancel(s) any benefit there might have been for a former spouse – but there has to be a divorce to do that – but if you have actually physically changed your Will to something else, yeah that’s okay.

DK      All right there you are. That’s a good – that’s an important one on timing which I wasn’t aware of that a divorce automatically cancels that Will out – so that’s good to know. Graham – let’s keep going powering through lots of calls coming through on this one. Graham, what was yours?

Caller 8 – Graham

C8       Thanks John. My – I’m getting an inheritance in the next couple of years I would imagine and as soon as that money hits my bank account, does my de facto spouse have claim to that?

JM      Ah, hahahaha – that’s a bit of an area that’s outside my province – that’s – you need to talk to a family lawyer about that particular one. But the answer is possibly – it may not be viewed as an asset between you and her but it could be viewed as a source of finance for a settlement. And I suggest you speak to a family law expert on that rather than myself I’m sorry.

DK      All right – outside of the field of expertise in that regard. It’s complicated isn’t it?

JM      Yes it is.

DK      John, how about you – John’s in Queensland for us today.

Caller 9 – John

C9       G’day John and Debs. I’m power of attorney for my 96 year old mother. Also an executor of her Will when that takes effect. There is my brother, sister and myself who are equal beneficiaries of the Will when it’s executed. My brother needed some money some time ago so we draw up a document through a solicitor lending him $100,000 repayable on probate. He’s subsequently requested another $20,000 which my sister and I have agreed to and we paid him, then he refuses to acknowledge the fact that he’s received that money. How do I handle that?

JM      Hahahaha –

DK      That is complicated.

JM      Very delicately I would say.

C9       No – not necessarily.

JM      No – The thing is that you as the attorney bear responsibility to your mother for her property and her assets. So that, I’m assuming you would have got some sort of receipt from your brother, the additional funds or ………….

C9       Well I’ve got confirmation through the bank accounts that it has been transferred and received into their bank account.  I’ve got correspondence between my sister, brother and I confirming that the money is being lent to him. But he hasn’t confirmed that.

JM      Ah yes well – it’s a pity it wasn’t documented but I mean I suppose that’s how things are. Look – I guess in that situation, the better course might be if you are going to be the executor, to treat that $20,000 as your brother’s debt to your mother’s Estate and then just see how that reacts.  In the absence of – I mean unfortunately this is an object lesson to people who are attorneys even though it’s within the family, that all these things should be carefully recorded because……

DK      Absolutely – have documentation – have it in writing

JM      Yes that’s right…. when the person passes away, that’s when all the different arguments come up, so ………

DK      All right we’ll leave it there John – we are out of time. Thank you so much. We’ll give our $100 voucher – Westfield voucher to Nick from Rhodes. So some great calls coming through – we’ll do it again shortly on Wills and Estates on Legal Matters. But thanks again to Turner Freeman Lawyers and to John Mann as we do every Tuesday, talking Legal Matters.