John Mann providing Q & A about Wills & Estates – 23 April 2019

Tuesday, 23 April 2019 

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

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CS       Well there’s been a very interesting case in the Queensland Courts recently regarding a deceased man’s Will and what makes it interesting is the fact that it was recorded on his IPhone four years before his passing, he’d recorded a video saying he wanted everything to go to his wife of 20 years.  Now while the Court said it technically doesn’t meet the formal requirements of a Will, the Judge accepted it as an informal Will and upheld it.  So we’ll talk about that with John Mann in just a second.  If you’ve got a question about Wills and Estates, you can call 131 873 – get in early though – like I mean right now – and I’ve got a $100 Westfield Voucher to give away to one of our listeners courtesy of Turner Freeman Lawyers.  Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims and Wills and Estates – they’ve got NSW offices in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and the Gong and in Queensland in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.  John Mann is an accredited specialist in Wills and Estates and also property law – he’s on the line right now. Hi there John.

JM      G’day Chris.

CS       Have you ever in your experience come across a case where someone has recorded their Will on the IPhone or another device? 

JM      Chris, it’s not as uncommon as you’d think. For probably about the last 15 years, the Courts have been able to give recognition to documents that are informal as far as the legal requirements are concerned but non-the-less fill few criteria which in that situation the Court can say well that does constitute the person’s Will. Now with this case with the IPhone, there are also cases with video tapes, with audio tapes – all these sorts of things because the law classifies them as being documents.

CS       But I guess too – if you can see someone and it’s a video I mean – If you can see someone – you can also determine their state of mind and their determination to see the Will carried out the way in which they dictate.

JM      Possibly, but more importantly the criteria that the Court has to apply where the Will doesn’t comply with the usual formal requirements of signature and the two witnesses on a piece of paper.

CS       Yeah

JM      …………… is it firstly the person recognises of what they are doing is making a Will; secondly, that it is document and thirdly, that that particular document is in their mind to constitute their Will, not their intentions about their Will, but the Will itself. And that must have been the evidence that was presented to the Queensland Court for the Court to be able to accept that.

CS       Fascinating case but as you say, it happens a little bit more than what we might think. Let’s go to some of our callers. 131 873 – Bob – Go right ahead. John is listening.

Caller 1 – Bob 

Bob     Hello.  In my Will I did have my grandchildren in there and I’m thinking of taking them out. Can they contest the Will if I take them out of my Will?

JM      The rights of a grandchild to contest is very limited. If they have at any time been dependent on you for financial support and lived with you, rather like the case where you might have brought them up, that might give them some rights to claim provision from your Will, but otherwise no.

Bob     They disowned me back in 2011 and have never spoken to me or nothing and they know where live and everything and have never worried about me and never sent me cards or nothing. 

JM      Well if they haven’t been dependent on you, then I think you can go right ahead and cut them out. 

Bob     Okay then. It’s just when my daughter died, well I thought you know – I’ll leave the money –I was going to leave my daughter and the grandchildren – it seems they have just disowned me – I thought well what’s good in leaving them money if they are not going to talk to me. 

JM      Well that’s a decision you have to make but I suggest if your daughter has passed away, that you make sure you have got your Will in place to cover the situation that has happened.

CS       Does it mean John Mann that those grandchildren have a greater right to parts of the Will given the fact that their mother has passed away?  

JM      Well if there’s some failure in the part of the Will – what we call a partial intestacy or if there is no Will at all, those grandchildren stand in their mother’s place.

CS       Right okay

JM      So you want to make….. he wants to make sure that he’s got the situation all covered just in case – that’s if the occasion might arise.

CS       Okay – Alright – thank you Bob – thank you for your call – It has just been announced in Queensland that the Premier Annastacia Palaszczuk has announced the Katarina Carrol is to be Queensland’s new Police Commissioner. The current Fire & Emergency Services Commissioner takes on her new role in July.  I should say that Commissioner Carrol started her career in general duties before rising to Detective and then leadership roles in the Drug Squad, Crime Operations and Ethical Standards. She was a Superintendent in 2007 and Assistant Commissioner in 2010. So she started from the ground up. Katarina Carrol and now takes the top cop role in the State of Queensland. That news just through. Ken in Cronulla. Go right ahead. John’s listening.

Caller 2 –Ken

Ken                 Oh G’day Chris. G’day John. My mum’s funeral was last Thursday unfortunately.

CS       Sorry to hear about that mate.

Ken     No that’s alright mate. Listen – Just coming from a layman’s sort of point of view – how do things work from here on in? With her Will – I’m not really sure about it….. 

JM      Does she have a Will?

Ken     Yes she had a Will – yeah – yeah.

JM      Do you know who the executor that is named in the Will?

Ken     The executor is the solicitor.

JM      I see. Generally speaking once the funeral has been completed, the Death Certificate will arrive perhaps a week or 2 weeks later. Now that’s part of the process of dealing with the Estate – but also the executor then also has to then establish the nature of the assets if the Estate and then makes an application for probate of the Will which authorises him to deal with it. Now, if it’s relatively simple, the process there might take say 8 to 10 weeks that sort of thing but it depends on the complexity of the assets and the Estate.  It isn’t always the solicitor is the executor, but in this case he’s the man who will have control of the Estate.

Ken     Right. Okay. Because she had several you know different term deposits and that. So who looks after all the financial side of things?

JM      It all falls to the executor – it’s his responsibility.

Ken     Okay great – okay – alright – thank you very much.

CS       Alright Ken – before you go, Ken I’ve got the $100 Westfield voucher to give away – you may as well take it and you’ve got a few things to deal with at the moment – a small consolation but thank you for calling in.  Stay right there if you may. Good on you – Ken’s got the $100 Westfield voucher. 11 to 2.

Back with John Mann after this. We’re going to have a chat about ANZAC biscuits after the news at 2:00 o’clock. 131 873. Stephen at Gymea – go right ahead – John Mann is listening.

Caller 3 –Stephen 

Stephen          Oh yes – the question is – Can a relative of the deceased obtain a copy of the deceased’s Will prior to probate being granted?

JM      The answer to that question – the short answer is yes, provided that they can fulfil a certain requirement – in other words if they are a member of the deceased’s family, if they have been named in a previous Will of the deceased person – there is a whole number of circumstances of where they can actually require a copy of the Will from the person who holds it or holds a copy of it.

Stephen          Well the Will would be in the hands of the deceased’s executor. The executor was the deceased’s solicitor.

JM      Who’s looking for a copy?

Stephen          I am.

JM      Do you know if you are a beneficiary?

Stephen          I would like to think so.

JM      Well in which case – I mean it is a question of fact whether you are or you aren’t but certainly if you are, or have been a beneficiary in a prior Will, you can apply to that solicitor for a copy of the Will and he has to give it to you.

CS       Yes – he has to give it to you. Steve –I’ve got to move on. Thank you for that. Betty has a question about this videoing of informal Wills or making an informal Will that way. Betty. You’ve got an idea?

Caller 4 – Betty 

Betty   Yes. Well no. I just wanted to ask and hello to both of you – I’m a blind lady and I met a lot of blind people around Australia, Brisbane wherever. When you were talking about video taking or audio taping a Will, I think that sounds a very good idea because blind people can’t write and some people are like too busy to help or there may be no-one to go to and I think that would be good for a blind person.

JM      Perhaps so. Generally speaking where the person making a Will has a disability, some people can’t write, some people can’t read for various reasons. The Will can be executed in circumstances where, for example if you can’t read. Somebody else just reads the Will over to you and that you indicate when its read saying yes that’s what I want, and if you can’t sign, you can also authorise another person to sign on your behalf. So a formal Will can still quite properly be constructed without the necessity of a video tape. But the video tape might be very appropriate in the situation where there is no possibility of being able to get proper legal advice or that sort of thing.

CS       Very true. I’ve got to leave it there John. I’ve got Rob from Lidcombe. Rob. I’ve got 15 seconds. Can you ask a quick question of John?

Caller 5 – Rob 

Rob     Yes very quick. I had a parent who died recently last year. I just found out they went through NSW Trustee and Guardian instead of an executor like a solicitor. I found it that – is that quite more expensive? They want like a big percentage or you know they have their way of doing things – is that normal?

CS       Yes – so what’s more expensive? The Trustee or a private solicitor John? I’ve got 10 seconds.

JM      Generally speaking the Trustee but both can charge a commission.

CS       Okay – a commission as well.

JM      Yes.

CS       Mate – thank you very much for your time this afternoon.

JM      Thanks.