John Mann discussing Wills & Estates– 20 November 2018

Tuesday 20 November 2018 

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

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CS       Sometimes Wills are awfully confusing aren’t they? And the laws that are attached to Wills – people find them difficult to understand because on one hand we are told that we need to leave a Will, but on the other hand we hear time and time again stories about people challenging a deceased’s relative’s Will and I get this from a lot of listeners. Why bother? Why bother? Earlier this month a Sydney man was awarded $75,000.00 from his mother’s Estate – even though she had explicitly stated in her Will that he should receive nothing. The man had been estranged from his family for years – in fact his father had made similar statements in his Will as well. And although the money he’s been given is significantly less than the $450,000 he’d asked for, it does beg the question – What’s the point of having a Will if the Court’s don’t uphold them anyway. Now thanks to Turner Freeman Lawyers, we’re here to take your calls on Wills and Estates, we’ve got a $100 Westfield voucher to give away once again. If you want to be in the running, ask one of the most relevant questions of the afternoon and you’ll win the $100 Westfield voucher. Pretty simple. Turner Freeman Lawyers provide a range of specialist legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, Wills and Estate and property law. Their NSW offices are in Sydney, Parramatta, Campbelltown, Penrith, Newcastle, the Gong. In Queensland, Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cains. John Mann is back with us today. He’s an accredited specialist in Wills and Estates. He’s based at Turner Freeman’s Penrith office – he also sees clients at Windsor and Gosford and all about. He’s on the line with us right now. G’day there John.

JM      G’day Chris.

CS       What’s the point of spending time and money writing up a Will – even with the support of a solicitor or legal counsellor to write it effectively and accurately which reflects your assets – when people are going to challenge the damn thing anyway?

JM      Well Chris – pardon me – it’s a question that I get answered – I get asked quite a lot – there’s no particular complete answer to it – but from my point of view, if you want your Will to say a certain thing – then you’ve got to say so. It’s no good saying if I make it this way – it’s going to be challenged. It might – it might not – the challenge might or might not succeed if it comes – but if you don’t say what you want in the first instance, then – and you don’t have a Will – the law just simply provides as to how your Estate is to be distributed without you having any further say in it.

CS       Are people not as specific as they should be? Is that what you are suggesting there?

JM      Not necessarily.  the example that you gave illustrates the complexity of these cases and they all depending on their own particular facts –

CS       But if the mother turns around and explicitly says “I’ve had nothing to do with him – this is the reason why I’m changing my Will – he’s had nothing to do with me – I don’t want him to get anything”. How can he possibly turn up to a Court and you know spend money on challenging that and then being successful at the same time? What sort of law is that?

JM      Well, the situation is that in families, quite commonly we have what is called an “estrangement” and that’s exactly what this situation is where the son had little or no contact with his parents for many years. The Court’s entitled to look behind the circumstances in that estrangement.  It’s quite possible that a child has not spoken to their parent for reasons of heart back to the behaviour of the parent towards the child rather than the opposite. Now, from what I’ve seen briefly of this recent decision, that is a factor that the Judge couldn’t make his mind up or not.

CS       Yeah – the man had been seeing a therapist for alleged sexual abuse from his mother – he claims – his older brother denied that – the Judge said he wasn’t convinced either way – but you just wander whether this would play a role in the decision?

JM      It would – it certainly would but the other thing is that the son is eligible – he’s eligible to bring a claim that he was not provided for and remembering that provision is not about fairness, it’s about whether a proper and adequate provision has been made. In this case he was able to demonstrate that he had a need and that was I think to help pay off his mortgage and whatever other things he had – but in that situation, the Judge was prepared to allow him a modest amount of the Estate…..

CS       So do you think it’s probably the best advice to say to someone – if you want to keep someone out of your Will, bear in mind there is a possibility that they could challenge – so you may as well leave them something.

JM      That is often very sound advice because to some extent they might be gambling with their own money if they bring a claim against the Will.  But that is one way of being defensive and the other is of course if you’re excluding the person, you should leave a record or a document of some sort setting out explicitly why this estrangement’s taken place and addressing the issue of how the estrangement came about because that’s a significant part – estrangements is a fact people don’t get on – but the underlying reason as to why that happened is quite relevant in these sorts of cases.

CS       Okay – I want to take a break and we’ll go straight to our callers – we’ve got a few on the board right now – you can also go the website – turnerfreeman.com.au – their number 13 43 63 – 13 43 63 – John Mann answering your calls on Wills and Estates right after the break.  131 873 – telephone number – Rebecca – you’ve got a question for John Mann who is ready and waiting to go – go for your life.

Caller 1 – Rebecca

Rebecca          Hi Chris and John.

CS                   Hi.

Rebecca          Last year my father passed away and we weren’t told until this year in February – he passed away 7 months earlier. He had – he appointed an Executor who was not a member of the family – she was a girl that he met at church and he was separated from my mother – but we have lost all control – her name is on the gravestone – we haven’t had any access to any documentation – I paid $60 for a Death Certificate and it was all wrong. She’s walked away with a lot of money – that she’s entitled to some – but there is an awful lot of money that’s missing – he was a property developer – we’ve been to solicitors and they’ve said “Well – you’re not the Executor – you don’t have any rights whatsoever”. And yet we were members of his family. How does that work?

JM      Well, I’m afraid that the advice that you’ve already had is correct. It’s a matter for the person making the Will who they appoint as their Executor.  Whether you might have considered that to be your father’s part to be misguided, nonetheless, that’s what happened and of course the Executor has the full control of the administration of the Estate. And mind you the Executor has to administer the Estate in accordance with the terms of the Will. But there are some constraints on what the Executor can and can’t do in terms of the legal powers that they have. Were you a beneficiary under this Will?

Rebecca          Ah yes – we were. … but……….

JM      Have you received your entitlement?

Rebecca          Sorry?

JM      Have you received your entitlement under the Will?

Rebecca          Some of us received it – and this is you know over 12 months ago – she received hers within the – as soon as the 6 months were up – she took everything that she was entitled to – which I understand, but we didn’t get to go to a funeral. Nothing. We’ve been – and also family heirlooms, photos – everything’s gone – nothing has been left behind for us.

JM      Yes – well I’m afraid there’s little you could do because the appointment that the Executor is a matter for the person making the Will and that’s what he chosen to do.

CS       Okay – Rebecca – can’t help you any further with that one. John – I’ll get to calls in just a second but I’ve got some more breaking news for our listeners. I mentioned a little earlier that one of those three men arrested in those police raids in Melbourne this morning – the 21 year old had been charged with planning a terrorist act following the raids – well now police have charged the brothers – a 26 year old man and a 30 year old man from Campbellfield with planning terrorist attack. No word on when they will appear in Court, but the three arrested have now all been charged. Sarah – John’s listening – go ahead.

Caller 2 – Sarah

Sarah              Oh hello – all this stuff with Wills is so murky isn’t it? It’s horrible.

CS       It sure is.

Sarah              So we had a family dispute a few years ago over another Will and as a result of that and I’ve got brothers who are now estranged from the family and my mum has done sort of what you’ve said and made a provision in her Will – just a small provision for each of them on advice of a solicitor and a financial advisor and so forth. So does that negate their ability then to come and challenge the Will or they still can challenge it?

JM      It doesn’t take away their rights to bring a claim because they’re given under the statute that’s been passed by the politicians. However, the question that the Court has to decide is whether the provisions that are made for them is adequate in all the circumstances. Now, if then they receive – and I should say – it’s pointless giving them 2 bob/$10 or whatever – it has to be relatively substantial amount.

Sarah              Oh no – significant. Yeah. It’s significant.

JM      A significant amount – and if then their financial circumstances are such that they are reasonable comfortable, they go to the Court and say – well I’m getting $100,000 under the Will but I want more. The Judge is inclined to say, well you’ve already got enough – why should you get any more out of the Estate? Therefore it’s a very defensive means of defending a Will.

Sarah              Yes – okay – and if – rights to the history – It’s like – why we are doing this? You know, because there is so much water under the bridge and…… but then I’m inclined to think – oh my God – I would just throw my hands up in the air and say I don’t want to go through that again – so just have it. You know……

JM      I strongly recommend that again that the reasons for the lesser provision for them be recorded – because that can be later presented in evidence in the Court – the person who made the Will can’t give it – but the document they created, that relates to it can be given in evidence.

Sarah              And they just sort of keep that sort of with the Will – Like – that – those little amendments and appendage to the Will – so as to speak.  Yeah.

JM      Yeah – with it not in it.

Sarah              Oh okay –  All right  oh gosh it’s all horrible – it’s…….

JM      It is unfortunately.

CS       Sarah – so many people and I guess John you can back this up – so many people don’t want to go through the angst of this stuff – challenging it or counter challenging it or representing themselves and they just let it go by – others revel in this stuff.

JM      Indeed.  The other sad thing is and I see from the report of that case we discussed earlier – there is some $300,000 in legal fees in that case where the successful award was $75,000 which is way way out of proportion to the amount of the Estate and …….

CS       Wow – you’ve got to make decisions beforehand as to whether you are going to bear that cost for very little gain.

JM      Yes well these cases, before they’re heard by a Judge all go to Mediation – Mediation is compulsory and a great many cases settle at Mediation for the economic reasons of saving legal costs and getting the case over with.

CS       Yes exactly – Now Sarah – getting back to you from Lugarno – You’ve got a $100 Westfield voucher all right.

Sarah              Thank you. Thank you very much. It’s still a murky business. But thank you.

CS       It’s a murky business that not a $100 can help you out with but I understand – Sarah – I’ll put you through to Hansel and we’ll make sure we’ll get that $100 Westfield voucher to you.  John – I’ve only got about a minute – but go right ahead.

Caller 3 – John

John   May one appoint two executors and trustees?

JM      Yes.

John   Right – are they set to be jointly or is there any qualifying words or ……..?

JM      Well no – an Executor is an entity – an Executor could be one person – it could be 6 people, but where you have multiple Executors, one binds the other – so that if one of your Executors makes a decision, the other one’s stuck with it.

John   I see – so they have to agree essentially…..

JM      They do.

John   Right.  Thanks John.

CS       They can also be the same person though John – Can’t they?

JM      Well how do you mean the same person?

CS       The Executor and the trustee?

JM      Oh yes – yes – that’s the common approach yes.

CS       And that’s a very easy way to get them to agree John.

John   But if there’s two people you’d like to appoint as Executors and trustees, that is possible?

JM      Of Course.

John   But one binds the other. They have to agree essentially.

JM      That’s basically right and as trustees, they have to be unanimous – that’s right.

CS       Good stuff – John Mann – I’ve run out of time. Thank you very much for yours this afternoon – We’ll catch up very soon.

JM      Thanks Chris.

CS       Good on you mate – John Mann from Turner Freeman Lawyers.