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John Mann on 2GB discussing Estates Law – 15 May 2018

John Mann providing Q & A on the 2GB Chris Smith Afternoon Show discussing Wills & Estates – 15 May 2018

Tuesday, 15 May 2018 

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

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CS       Well in exactly a week’s time there will be a very ugly court battle going on over the estate of acclaimed author Dr Colleen McCulloch. The author passed away you may recall in 2015 but just 12 days prior she signed a new will which made her husband of 30 years Rick Robinson the sole beneficiary. The couple had no children so you’d think this wouldn’t be too much of a problem but as it turns out this last will completely revoked an earlier will which gave everything to the University of Oklahoma Foundation and her friend and executor Selwa Anthony her agent is claiming that Rick Robinson manipulated his ill wife’s will to secure her fortune. It is an interesting situation but one that I think many people may have feared their family has also been involved with and you know when it comes to wills and it comes to money at the end of a life all sorts of dastardly behaviour can go on. That will make up a couple of interesting points when I speak with John Mann shortly in our legal matters segment and don’t forget I have a $100 Westfield voucher to give away to a caller with the best question of the afternoon I’d say. If you’ve got a question, do you want some free legal advice? This is your opportunity in legal matters courtesy of Turner Freeman. Give us a call right now 131873. Don’t leave it too late in this half hour segment because usually people miss out when they do that.  John Mann is an accredited specialist in wills and estate and property law. He is based at the Penrith office of Turner Freeman and also sees clients at Windsor and Gloucester.  He is in the studio with me right now. John thank you very much for coming in.

JM      G’day Chris.

CS       Colleen McCulloch, a very successful author, I imagine she would have a quite substantial estate.  

JM      I would expect so.

CS       And in a case like that where there is no children either. Um would the estate ordinarily be left to the widower?

JM      You would normally expect that to be the case, it is very interesting because we don’t quite know what the facts of all this are. There could be a number of different allegations by the executor of the prior will as to the circumstances of the new one but at the moment that is yet to be determined by the Court and we haven’t heard what the evidence is.

CS       So far we understand that Dr McCulloch signed off on her new will just 12 days before her passing, now is there any sort of time limit per se on when a will needs to be signed off for it to be considered legitimate. Can it be a day before?

JM      It could be 5 minutes before you pass.

CS       Right, it can be 5 minutes before. Now Dr McCulloch’s executor claims that she was manipulated by her widower. Um legally speaking, what is considered manipulation?

JM      Well that’s a very interesting question because it raises different angles of how a will might be impeached or challenged. The will itself could be complete forgery, it could be a situation where at her end Dr McCulloch didn’t have the necessary capacity to make a will or it could be in circumstances where she did have capacity to make a will but didn’t know or understand what the content of the will was that she was signing.

CS       And it wouldn’t necessarily be the case that this widower has a will that was set up tabled and counter signed by a legal representative. It might be just a piece of paper and her wishes written down on that paper.

JM      It could well be and we don’t know until it becomes public at all out of the case, um as I understand from the report in the media it was done without legal representation or advice so that may make it a little bit more suspicious, hard to know.

CS       Hard to know, it will be an interesting case and it will occur in just a week’s time from now. Simon in Waterloo you’ve got a question for John, go right ahead.

Caller 1

I have a question please, I have been receiving for about 10 years now, the interest on a bulk of money that my mother left me. Now my question is she left it in the will that I only get the interest on this bulk because I have a terminal illness. Now my terminal illness is getting really bad, maybe 12 months left to go and I’m just wondering whether I have any chance of trying to claim even a portion of that main bulk of the money because of my illness.

JM      Good question, generally speaking pardon me the time to make claim to all of the provisions of the will has long gone, that’s not to say that can’t be brought out of time but that is what you would probably need to do in those circumstances because that’s the way the will has been written, you’d also need to look at the terms of the will, it may have somewhere where it has a power of advancement which might authorise the trustee of the will to pay part of the capital to you. Often those things are discretionary but I’d need to see the will before I could tell you anything further about that.

CS       You need to see the will. Simon on stay on the line if you want to partake with the services offered by Turner Freeman. It’s best that we take your number and John can contact you if it works out that way. 131873. David go ahead.

Caller 2

Good afternoon Chris how are you?

CS       Good thank you.  

C2       Just a quick question regarding wills, children falling out of the family, you changed your will to unfortunately eliminate them out of the will.  How is it possible that they can challenge and then get back into the will? 

JM      Because our political masters have given us legislation that says they can.  

C2       That makes me feel good.

JM      I’m sorry but it’s as simple as that.

C2       Really.

JM      As long as they are your children. 

CS       So the situation with you is David someone who hasn’t participated in the life of the person that passed has decided now to go to court to seek more than what they were allocated in the will? 

C2       No, not necessarily Chris. What the situation is we are in the process of changing the will to, there’s been an upheaval in the family to make it easy so we have come long and hard and decided that this is the action that we want to take but then after the recent news stories on TV last night for arguments sake, it just makes us wonder why go through all the bother if it is not going to change anything.

CS       All is fair in love and war and wills by the sounds of it John Mann. 

JM      Pretty much. 

C2       It does sound that way. 

CS       Alright David thank you very much 131873 we will take a quick break. 

CS       We are talking wills and estates with John Mann. You have a fair few questions on the board today. You are highly sought after. Rani go ahead John is listening.

C3       Hi John, just wanted to ask you my dad passed away last year and the will which I don’t really understand is written where everything is left to one of my brother’s daughter and the will was written in 2010 and he died when he was 99. A little bit confused how come everything was left to her, it is written there gifted to her and what about us and my mum and everybody else.

JM      So she’s the granddaughter 

C3       Yes 

JM      Well this takes us back to the previous caller as to the rights of other people to make a claim for provision if they can establish in a court that they are an eligible person which obviously those people would be and they have some financial need. Now that situation if the person has left all of their estate to someone in this case a grandchild, leaving children and a spouse then the rest of the family the spouse and the other children would certainly have rights to bring proceedings for family provision. Now that has to be brought within 12 months of the date of death.  

CS       12 months from the date of death.      

JM      Yes. 

C3       That was done in Melbourne so how do I do it from NSW.

JM      Well then you will need to talk to lawyers in Melbourne. There is different laws in different states but I don’t think it would change eligibility of a spouse or children but the mechanics of it you would need to get advice from a Melbourne lawyer.

CS       Jimmy go right ahead.

C4       Hi guys, just thinking about longevity with who can make a claim on your estate.  So I am divorced nearly 20 years, we had a property settlement sold the house sold everything walked away. Ex is remarried and I have recently remarried which is why I am thinking about getting my will updated and I live in Penrith so I can come and see you. My question is if anything happens to me, 20 years down the track I’ve bought and sold houses since then, does my ex from 20 years ago have a right to come out of the woodwork?

CS       Good question.

JM      Good question and it is something that a lot of people are not aware of that it is in the legislation that a former spouse can bring a claim even though those sorts of times and spans have gone by. Now those do of course depend very largely on their circumstances whether there has been property settlements, those sort of considerations but nonetheless the possibility of a claim is still there. Very recently the Court of Appeal considered a claim by a former spouse, they were fairly critical of it and it didn’t succeed but in the end it still got to Court and still can be an issue.

CS       Hey Jimmy, you got a $100 voucher from Westfield’s and Turner Freeman mate.

C4       Thank you very very much, I really appreciate it.

CS       Good stuff, good question. Jimmy stay on the line we will put you through to Hansel. Susan go for your life.

C5       Oh hello Chris, hello John, thank you for taking my call. John my parents died last June, mum died on the 3rd of June and Dad died on the 14th of June and I have a couple of questions. I haven’t taken their will to probate yet because it has just been too awful and I’ve now decided to go to a lawyer and have it done. But I have a couple of questions about that. How long do I have before I have to have the will processed and will it just be dad or mum and dad or considering that mum died 11 days before dad?

JM      That would depend on how the assets were owned between your parents. If they owned them jointly it’s quite likely that the one that died first all of their estate would pass to the other which may not need probate. It would need some legal work but it may not need probate but you would certainly need probate for the one that died second.

CS       And how long has she got to do that?

JM      In the end if it’s all for your own benefit you can do it whenever you please.

CS       That’s the answer to the question. I’ve run out of time but I’ll tell you what we will do John. I’ve still got a full board of calls with some really good calls. How about we get back straight after the news. I am here to please and when we have had demand like we’ve had during a legal matters segment as we have had today I am here to extend it for you. So many people have wanted to ask questions related to wills and estates today and so John Mann has kindly agreed to stay back and we will take a few more calls before we move on. If you are in NSW you can contact Turner Freeman by phoning this number, 1300 237 112 or in QLD 13 4363. Kylie go right ahead John is listening.

Caller 5

            Thank you for taking my call

CS       That’s ok.

C5       My question is my husband and I are in our early 40s and we have been talking about doing a will for so long, my question is what would be the benefit of going to a company such as yourself or to do one online or by ourselves.

JM      Well it’s entirely a matter for your own decision I mean from a general point of view if you want your tax done you see an accountant, if you want surgery done you see a doctor, if you want a legal document you see a lawyer but you are perfectly entitled to do your own. The only other problem you’ve got is that if you get it wrong you’ve got nobody else to blame.

C5       That’s so true.

CS       Get it done professionally then you can get it done and you get it done once maybe you need to make amendments to it down the track but whatever you do you don’t want to leave a drama at the end of your life for someone else to clean up.

C5       That’s so true. Alright no worries well that’s made the decision a bit easier.

CS       Alright Kylie, thank you very much. There is a Penrith office and there is a fellow called John Mann in the Penrith office Kylie. 1300 237 112 is the number for Turner Freeman. Catherine go ahead.

C6       Thank you Chris for taking my call. I just have question regarding my ex-husband who passed away of motor neurone earlier this year. 

CS       Sorry to hear that. 

C6       We have 2 sons together and he had a new partner write out a brand new will just a few weeks before he passed away and in the estate or the will the two boys have not been covered for whatsoever. There was a property involved and also life insurance and superannuation but no provisions whatsoever have been left for the two boys except two watches at the age 25 and I was just wondering whether or not I do have a case at all, is it worth me trying to invest some time and money to see whether I could get something for my two sons that we have together.

JM      What age are the boys?

C6       5 and 7.

JM      Oh look yes they have got a long way to go in life and if you were left by yourself to raise them, I think you should get some legal advice in a case like this because it sounds to me like if nothing has been left for the benefit of his sons that some provision might be made for their education at least or their advancement in life before they become adults. Yes so I strongly suggest you can get some legal advice on that.  

C6       Would they have a leg to stand on though John? I know his new partner wrote everything to herself and she got everything, the property that we had together prior to separating and then any other finances, I just didn’t know whether or not being a single mum I didn’t know whether I will have a leg to stand on regarding challenging.

JM      They have a legal right to make a claim there is absolutely no doubt about that if they are his sons. The question is what is in his estate and whether or not the assets of it are accessible or whether if they have been transposed into other forms at different times. That needs to be investigated but it is certainly children of that age who don’t get anything and there is a substantial estate there is every reason to investigate to consider a claim and if there is anything there they would get at least some portion of it, it may not be a lot but it would be some.  

CS       Alright Catherine, I need to move on. We have got two other callers that I want to get to. Anne hi.

C7       Thank you very much for taking my call.

CS       That’s ok.

C7       Just want to know is there any steps that I can take to prevent, not if but when my child contests my will, that the Judge magistrate or whoever actually goes by what I state in my will? Reason being I have already given my child over 2 million dollars so far in their life, I’ve left my money being left to an executor and they will dish it out to that particular child at $5,000 per month to make sure that they have got money to live on you know and not blow it all in 5 minutes flat like they have done previously.

JM      Yes that’s, do you have any other children?

C7       No I’ve only got the one.

JM      In other words what you are doing is setting up something to control what he might receive and when.

C7       That is exactly right.

JM      Well certainly the fact that they have been given 2 million dollars during your lifetime is very relevant particularly if at the time you pass away they haven’t got any of it.

C7       I’ve got documentation to prove it all, I’ve kept the documentation that relates to it all etc to support what I’m saying and try to support that the reason I have taken these steps is to actually provide for that child after I’m gone.

JM      That I think would be self-evident from the arrangements you have made in other words the child is getting the benefit of what you have during your lifetime but not necessarily having any control of the money.

C7       Trusts of these sorts are set up every day of the week for various circumstances, children with disabilities, children that are gamblers, children that have drug addictions, things like this where rightly the person is saying that they need to make provision for them but I don’t want them to get all the money at once and spend it all at once.

CS       If they are clear intentions clearly enunciated in the will, I would have thought that would be very difficult to challenge.

JM      It would be, particularly with the 2 million dollar provision up to now but the other thing I could suggest is that you make a separate document independently of your will saying why you’ve done it.

C7       I have done that.

JM      You have done that have you? Give that to your executor because that is a document that the executor can use if he brings proceedings.

CS       It happens quite often. Anne I’ve got to leave it there I’ve run out of time. Thank you very much for your call.  John thank you very much for holding on a little longer today.  You are a man in great deal of demand.  Turner Freeman Lawyers. We will return with John Mann in a few weeks’ time and you can call Turner Freeman in NSW 1300 237 112, QLD 134363.

C7       Thank you

JM      My pleasure Chris.