John Mann discussing Wills & Estates Law on 2GB – 17 October 2017

Tuesday, 17 October 2017

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LG – Luke Grant /JM –John Mann /C1,2,3, etc – Callers 

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LG      Earlier today when I was having a chat to Chris about what we are doing today he told me that he came across an interesting story about a Brisbane man’s will. He said that what was interesting wasn’t what was in the will but how it was presented because it was in a form of a draft, are you ready, text message. The man had written a formal will leaving everything to his ex wife and son but following his death they found a draft text message on his phone leaving everything to his brother and nephew. What do you reckon the courts did? Well the Courts deemed it valid so what does this case tell us about wills and estates? We are going to cover that in our legal matters segment today and thanks to Turner Freeman lawyers and the legal matters segment we have a $100 Westfield voucher to give away to a caller who asks an interesting/relevant question. John Mann is an accredited specialist in wills and estates and property law. He is based at Turner Freeman’s Penrith office but he also sees clients at Windsor and Gloucester and he is on the line. G’day John.

JM      G’day how are you going?

LG      Well, nice to talk to you. That case that I briefly mentioned about the draft text what was the courts reason for upholding that text as the man’s will, it is amazing.  

JM      It is an interesting point. Without referring necessarily to QLD law, a document that is not necessarily signed and witnessed by two witnesses can still be a will but that depends on what the person who made it intends. A document does not have to be a piece of paper it can be an audio tape, it can be on a computer, it can be all sorts of images and as long as it is then a document that contains the testamentary wishes of the person and when they make it they intend that to actually be their will, then the Court can say it is their will.

LG      Right.

JM      It is the same in NSW but obviously there are fairly strict levels of proof with something like that and for example if a person making a will writes to their solicitor and says I want you to make a will saying this this and this, that is not eligible to be called a will because it is not the document they intend to be their will.

LG      It is amazing because for many years we have seen advertised these will kits and part of the advertising of them is being that you need to have something quite official, something quite formal otherwise it just doesn’t cut it. But here we have an example of where that is actually not the case a draft text. Just again so that we understand this, what would make it or what makes it a will or a draft text in the form of a will valid?

JM      Ordinarily a will has to be signed by the person who made it in the presence of two witnesses that are present at the same time and subscribe their names to the will. Now that was the law up until a few years ago when there was some recognition given to less formal documents but it still has to be proved if it is not in that form with the maker and the two witnesses but firstly it is a document but secondly it contains the testamentary wishes of the person and thirdly that the person intends that document to be their will without reference to anything else. Now that is the law in NSW but the level of proof of that is quite strict.

LG      Alright 131873 we’ve got Malcolm on the line for a chat.

Caller 1 

C1       Hi gents how are you today?

JM      Good

LG      Good, go ahead

C1       Just a quick question, I’ve got a formal will with a solicitor and a Power of Attorney and Enduring Guardian, I just wish to make a very minor change to those documents but in relation to people I have nominated to do the various things, have I got access by law to a soft copy of that document with the solicitor.

JM      I don’t see why not, it’s your document. The solicitor has no particular right in relation to your document except most solicitors retain them for their clients in safe custody but if you want your documents they’re yours and you just ask your solicitor for them.

C1       Ok, I did ask for them and they said they would consider my request. When you consider that you’ve paid a lot of money for it and you only want to now just change the people who maybe acting, add an extra child, you turn around and go well wait on this is a bit rich asking you for three quarters of the price again. Ok I’ve got the right.

JM      Can I warn you about this, if you made a will and you want to make alterations to it you have to be very careful doing that because unless it is done by way of what they call republishing the will, you amend it, initial and sign it again, it may not work.

LG      Ok, righto thank you very much.

JM      Be very careful about making amendments to the will.

LG      That’s interesting and also that point about they being your documents. So we all expect to be able to receive from our solicitor our documents and not be charged.

JM      Yes, there are solicitors practice rules relating to custody of clients documents. The general rule is that they are your documents and you are entitled to have them. I mean suppose you want copies and technically if someone wants to charge you 20c a page to copy them then I suppose that’s not out of reach but ordinarily they are your documents.

LG      Alright, thanks again for the call Malcolm. G’day Paul.

Caller 2 

C2       G’day how are you going?

LG      Good mate, what was your question? 

C2       My question is we are in the position of looking after a young 12 year old boy who has lost both of his parents sadly and it has been brought to my attention that he actually has an inheritance going to him when he turns 25. Now I have been told that I have got to protect my children and their claim on my will and saying that he potentially has a claim on mine, on our estate. Would that be right?

JM      So he is part of your household. 

C2       Well we are looking after him at the minute and it looks like we might have to have him permanently, we are not sure yet. 

JM      There is a provision in family provision law where a person who is part of your household and at anytime dependent on you for financial support can be eligible for making a family provision claim but that depends on the nature and the duration of it, it commonly happens where grandparents raise grandchildren basically raised them as their own children provide them with all their creature comforts and everything else that they need to live. That really promotes the grandchild to eligible to make a claim within the grandparent’s estate. Ordinarily that is not possible and it doesn’t include such things as Christmas presents and small things like that, they have to be a very close dependent.

C2       He has an inheritance coming when he turns 25 and I daresay he will get an inheritance off his grandparents. It’s just that, how do I protect myself?

JM      Well that’s a separate matter. If he comes into a substantial inheritance himself, that’s irrelevant consideration in a claim against your estate because these claims are not necessarily based on entitlement. They are also based on who needs what and how much. So if he comes into a substantial amount despite the fact that he might be eligible to make a claim he might not be entitled in the sense that he already has sufficient provision.  

LG      Alright leave it there. I hope that was helpful Paul, appreciate your call. John don’t go anywhere we will take a break. Let’s go to Sue on line 1, G’day Sue

Caller 3

C3       G’day gentlemen. I’m just wondering when I pass away can my daughters ex partner have any claim on my house. 

JM      That’s highly doubtful, has the ex partner ever been part of your household? 

C3       No not my household.

JM      Or dependent on you for financial support.

C3       No no no and he has two children with her but she has the children.

JM      Yes but as far as her ex is concerned on those facts it is highly unlikely that he would be able to make a claim on your estate.

C3       Thank you, that’s what I thought but someone said that no that is not right and he would have a claim.

JM      Well of course if your daughter inherits from you and he has a family law settlement or something like that, that is a different matter.

LG      Sue we will leave it there, you got some advice and we have got a time problem developing here. Colwin you are next.

Caller 4

C4       Hi gentlemen, I am just ringing up, my brother died three years ago and it was a bit of a shock to find out that he had a will but he died intestate because he wasn’t divorced from his wife, they were split but they weren’t divorced so he died intestate. I got over the shock of that but how long does it take for those solicitors to finalise this will because as I said it is three years and I am still getting letters from his bank and all the other places, I don’t get a lot of money from it but I paid for his funeral and I want that money back but how long does it take for these other solicitors to finalise this thing, it’s just awful that all this mail keeps coming in brother’s name and I just want to put him to rest.

JM      I appreciate that. I’m a bit puzzled about your comment that he died intestate. Intestate means he didn’t have a will or left a will that had no living beneficiary in it.

LG      Is that the case Colwin? 

C4       He had a will where he left everything to our mother and she is still alive but on the death certificate it had next of kin and it had his wife. They were separated but they weren’t divorced. 

JM      Well that means that she is still is his next of kin. 

LG      Yes that’s what my solicitor said so I’ve reeled from that and cried buckets of tears but anyway but how long does it take for these solicitors on her side to finalise everything? 

JM      That’s a difficult question, it’s a piece of string that one. Depends on how complicated the estate is, it depends on how diligent the executor is, all those sorts of issues. I can’t give you any guidance because some estates can be completed quite quickly in a matter of a couple of months others take years, it depends on the nature of the estate. 

LG      Alright Colwin, I’m very sorry you went through that but and this is of no great relief but thanks to Turner Freeman lawyers and their legal matters segment, we have chosen you as our question of the day so there is a $100 Westfield voucher coming your way if you stay there we will make sure we get the rest of the information and again it doesn’t make up for what you are going through but thank you very much for listening and we appreciate your call and I hope we have been able to help you. 

LG      Should we be and I’ve only got 30 seconds John, but how regularly should someone update their will? 

JM      I take the view whenever there is some relative major event in your life such as getting married, a child, grandchildren, people leaving home, those sorts of issues in our life where things are starting to change, that is when we have to review it. 

LG      Ok, thank you very much John, good to talk to you. That’s out legal matters segment and thanks to Turner Freeman and Smithy will do that again next week of course at this time.