John Mann featured on 2GB discussing Wills & Estates – 16 February 2021

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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      Time now for your free legal advice. Tuesday legal matters all thanks to Turner Freeman Lawyers and the focus today, it’s a popular one, wills and estates. If you’ve got a question about an unfair will, you think you’re been treated badly with the divvying up of an estate, give us a call, 131 873. You might be struggling with your own will, what to put in it. As always we’ve got our $100 Westfield voucher for the best caller during our legal matters segment. John Mann is special counsel and wills expert from Turner Freeman Lawyers and he’s on the line for us now. John, thanks for joining us.

JM      Hi Deborah.

DK      I tell you what, it’s a complicated area, it’s a very confusing area for many people, so I glad you’re here to give us the advice. We’ve already got a few calls. I wanted to talk to you first up about this recent case overseas. A man in PNG died, but he owned valuable property in Brisbane and 8 different groups claimed they should be left the property. How often is property and homes in particular disputed in wills?

JM      That’s the $64 question! That’s a very unusual set of facts, that one. But it’s illustrative of the point that an agreement between a person to leave property to someone else can be enforced in certain circumstances. Now that one, the gentleman who had passed away had promised the village elder that if he could come and live in the village and be looked after that he would leave his estate to him. And that was ultimately the agreement that the court upheld, even though there were other people who claimed that they had lived in his property in Queensland long enough to say that they could claim it. That particular argument was rejected. But there still has to be a consideration for that, so that if somebody says I’m going to leave you my Rolls Royce car if you do something for me during my lifetime, then the courts can uphold agreements like that.

DK      And verbal agreements too?

JM      Well, the trouble with verbal agreements is proof. But if the actions of the parties are such that the underlying truth, even though it was spoken, has been acted out, then that can be enough to convince a court that there is an agreement there, and these people who have acted to their detriments to comply with that agreement, that raises also what might be called an estoppel. An estoppel is basically a shield which says that if we stick to the terms of this agreement, you, the person who made this agreement, or your estate can’t turn around and deny it. And that was basically how that case went.

DK      Yea it was a complicated matter, that is for sure. Richard’s got a question to do with homes left in wills. G’day Richard.

C1       G’day how’re you going? Just a quick one for John. Sorry, I should have said Deborah…

DK      Yea no not at all Richard that’s fine.

C1       Sorry about that. Instead of saying A and B, the producers suggested I use names, so I’ll use Alan and Betty instead of A and B, if a will gives a property to Alan with 50% of the valuation of the property having to go to Betty, and Betty has lived in a house on the property with the recently deceased for more than 20 years, can Betty claim the house notwithstanding the provisions of the will? I’ll leave it at that.

DK      John, do you have a clear-cut answer to that?

JM      Well that was very similar to the argument that was run in that case we’ve just been talking about. That is a different matter, that is what we call ownership by adverse possession. In other words, if you’ve lived there for a certain period of time and there’s been some recent cases at the Supreme Court, you can claim, to put it for instance as squatters rights, and ultimately claim the title. Now the problem in that particular case is that this lady had been living there and was doing so as the resident of the owner, then there is no possibility of there being an adverse possession claim because adverse possession has to be hostile, contrary to the ownership and usually involves such things as going and paying the rates, going around town saying this is my property and so forth, so I think in that particular instance, although it’s not ruling it out, it would be very doubtful in that case she could, therefore the person who owned the property, what they say in their will would be more likely what would happen.

DK      OK, there you go Richard. Phil’s got a query for you John, hi Phil.

C2       Yes, thank you John. I have a will which has been made up by a solicitor that I’m very happy with but I just want to make one change. I’m in a blended family situation and I made the executors one from each side of the family, but one of the ones that I nominated is an executor who has developed some mental health issues and I just wanted to change that one to somebody else from the same side of the family. Now just to change one executor, do I have to go and remake a will or is there some way I can just change it on the existing one?

JM      You can make an amendment to a will which lawyers refer to as a codicil. That is an addendum to a will which might simply say that instead of X I am now appointing Y as one of my executors or my executor. Now it still has to be signed in exactly the same way as a will, but it doesn’t have to disturb the rest of the will, it becomes an addendum.

DK      So a simpler process, a simpler thing to do.

JM      It is yes. But I caution you against getting the will out and scribbling names out and changing it because that takes us off into a different territory altogether.

DK      Yea, get it done correctly and make sure you dot all the i’s and cross all the t’s. Bill’s got a query about changing a will too, hi Bill.

C3       Hi guys. Thanks very much for taking my call. We have had major problems with our daughter. She took out a false intervention order against my wife for a period of two years, denied us access to the two grandchildren, she’s been addicted to Ice and high dose Valium for 4-5 years.  We moved from Canberra to Melbourne to be with them. She hasn’t spoken to us for more than 4 years, so we have had our will modified through a legal guy in Melbourne and we are leaving her portion of the will to the grandchildren, not to her. Can she appeal that and can it be overturned.

JM      Regrettably, the answer to the question is that her rights would remain as a child and to take whatever action is available to her for family provisions under Victorian law. In a situation like that, you must first of all make your will the way you want it, but in conjuction with that, you should make a written statement for the use of your executor, saying why you’ve done that because unfortunately, when the issue arises you won’t be there to tell the court. So if there’s a written statement, your executor can then tender that in the court as to the reasons why you’ve done that.  But in the end, if she brings a claim, whether its successful will depend on what provision has already been made during your lifetime, what she needs, all those other issues, but the conduct of her towards you is, well in NSW, irrelevant in considering what provision might be made. It’s not unusual, unfortunately, to find families where there is an estrangement where children who don’t contact their parents and have nothing to do with them, the main basis on that is to avoid any problem with the child, is that the conduct that resulted in the breach of the relationship comes from the child’s attitude to the parent rather than the other way around. Because, it’s very easy for a child to say, well, my father was a tyrant and that’s why I haven’t spoken to him for 20 years, so again, the written statement should be very clear on issues like that, because it’s not very difficult to put the contrary case saying, well I didn’t talk to my parents because of what they did to me.

DK      Yea, that’s important to have that advice and have that factored in to the equation. There you are Bill. Bill has a question for us, g’day Bill.

C4       Oh g’day Deborah, how are you.

DK      Good thanks.

C4       Fantastic program, thank you very much for the opportunity to speak with John. My question may be a very simple one. I’ve got a friend that, I mean, I don’t have a will personally, but I have a friend who has a will and it’s exactly the type of will that I want. If I was to transpose that will, like re-write it …

DK      With your own details, yep…

C4       Yea with my own details, and it splits the property as I would want it split between the children, what’s the process of getting that registered so that it becomes a legal will. Is there a government department, do I have to go to a solicitor? How does that work please John.

JM      Wills, although I understand there is a registry still in existence, wills are not registered, wills are a personal document. Now, there are legal tests with the validity of a will. If you want to write out your own will, whatever wording you choose to use, whether you copy your mate’s text or something for yourself, as long as it’s executed properly, there’s no reason why that doesn’t constitute your legal, valid will.

DK      So it can be done and can be done effectively which is good news for Bill.

JM      It certainly can be. There is nothing that says you have to use a lawyer to have your will prepared, but for most of us, we have our tax done we go to an accountant, we have brain surgery we see a doctor….

DK      Yes! So a lawyer is a good starting point for wills. John we are out of time, thank you so much for joining us, it’s always a popular segment. We’ll have to take it up with you again and we will do that.