John Mann providing Q & A on 2GB discussing Unfair Wills & Estates - 21 September 2021

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JH – Joe Hildebrand / JM – John Mann – C1,2,3, etc – Callers

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Read the transcript below:

JH       Yes indeed it is time for legal matters here on afternoons  131873 is the number. Give us a call because we are talking about Wills and Estates and it is something that obviously most of us if not all of us will go through at some point so give us a bell 131873 or if you’d like to text us your question 0460 873 873 is the number and we have a $100 Westfield Voucher to give away to the caller who asks the best questions in the segment today. That is $100 in your hand in the form of a voucher to give away to the caller who asks the best question so you know your inheritance is going to go up by a hundred bucks no matter what the outcome of your question so give us a bell 131873 or shoot us a text 0460 873 873 and John Mann Special Counsel and Wills Expert from Turner Freeman joins me on the line. G’day John how are you?

JM      G’day Joe I am very well thanks, yourself?

JH       Excellent Sir. Lovely to speak to you. I am well thank you. Um someone who’s not as well is Prince Philip in fact he’s

JM      No he’s rather ill.

JH       He’s very ill he’s no longer on this mortal coil now his Will has basically been locked up for 90 years and I don’t think we’re ever going to be able to actually find out its contents are we?

JM      No um it’s something I wasn’t really terribly aware of myself but um the Royal Family has some special privileges everybody knows one of which is we’re not entitled to see the Wills on any of the prominent members of the Royal Family which apparently are retained by the Courts in England for a period of approximately 90 years.

JH       Wow.

JM      Um and of course that also means that access to knowing what they said in their Will or what they had is not going to get into the public domain.  I think that’s just a privilege that the Royal Family enjoy.

JH       Right.

JM      In this Country where we make a Will and that Will goes to what’s called Probate, Probate is a document of public record so that anyone can look at another person’s Will they will not be able to see what their assets were unless there are particularly special reasons why the Court releases that, but as far as your Will is concerned a Probate is a public document.

JH       Right.

JM      It’s apparently not for the Royal Family.

JH       That doesn’t seem very fair does it to um so an Australian um Citizen or someone in Australia who dies can they is there any laws that would enable them to have secret parts of the Will could you leave you know if you had for example you know kids from two different partners or two different families could you secretly give one family something without the other one knowing or could you you know if you had it you know the old one if you were having an affair with someone could you leave them a piece of jewellery or something special without the rest of the family knowing?

JM      It’s very difficult to do something like that because the Will itself the document becomes public record so that if you had something in your record that you were leaving the grand piano to your nephew or something like that would show in the document. Either that or people can make private gifts themselves before they die um cause the piano might have been given to somebody else.

JH       Yep.

JM      But when it comes to the Will if it’s referred to in the Will then it can come into the public domain yes.

JH       There you go and how how is what if you do say something to someone before if you make an agreement with someone um before you die say it’s a written agreement um and then the Will says otherwise which which document overrides the other is it is it the deal you made in life or in death?

JM      Well if if the agreement that you made before you died that you said because you’d been a very good son and you’ve done all these things to my house and everything else I’m going to leave you the piano and you don’t in your Will the Courts will enforce that agreement so that the promises you make during your life provided that they come past certain legal tests will be enforced if they’re not actually included in the Will.

JH       Yeah right there you go. Um Matthew from Bribie Island has called in ah Matthew you’ve got a question for John?

C1       Yes ah John I was just wondering how often a Will should be updated, under what sort of circumstances might it be appropriate and whether it’s a good idea to give copies to all of the beneficiaries or just leave it with the Solicitor?

JM      Ah to answer the first bit um you need to review your Will from time to time but particularly in various events in your life you obviously when things like marriage and so forth children coming along, grandchildren they represent times when it might be a good idea to have a look but it’s not a bad idea to review the situation from time to time. Whether or not you want to disclose what’s in your Will to the beneficiaries is a matter for yourself. Some people like to play their cards very close to their chest ah and not say anything. Others like to say well I’m sitting down the family here’s my Will this is who gets what and just simply tell everybody, but the most important thing you can do is whoever you appoint as your Executor or Executors that they know that you’ve appointed them and that they have a knowledge as to where you Will might be they’re the most important things.

JH       And are there how do you determine if a Will is not fair I mean we hear this all the time but how we know you can sort of contest a Will ah in the Court and it’s something my ah my family my mum had to do when our great uncle Alfonsis died and left all his money to the I think it was the Catholic Church where is when we’d given him sort of room and board for years of his life right up until his death um but is there anything in a Will that can be sort of manifestly unfair and contestable or will a Will prevail unless there is some extreme extenuating circumstances?  How do how do you sort of how do Court’s determine that? 

JM      Well time doesn’t permit for a full dissertation on that but the general proposition is in this country you have what we call complete testamentary freedom you can make your Will however you like because in many European countries they have a code where you have to leave part of your Estate to various people.

JH       Right.

JM      That said if a Will fails to make a provision for what’s called an eligible person that being a spouse a former spouse or a child or someone that we brought up then if no provision is made for them or no adequate provision a claim can be made through the Courts for a share of the Estate in other words the Court can rewrite the Will.

JH       Yep.

JM      But it’s ………. in about very much in advertising saying have you been left out of a Will but the scope for claims against Wills is quite limited and you need to look very carefully at what the surrounding situation is the relationship with the deceased person before you can say that someone can make a claim against a Will.

JH       On that subject a listener has written in obviously has withheld the name but it said can I please ask my mother passed about 6 months ago. Does her Will have to be finalised in any specific time? I am entitled to something but don’t want to cause issues and make a big deal. Obviously they presumably could use could use the money but don’t want to cause a fight.

JM      Is that in New South Wales?

JH       I believe so yes.

JM      Ok look there is there is a custom or a recognised time which is not in any way laid down on stone tablets but generally speaking an Executor has a year from the date of death to get Probate and distribute the Estate.

JH       Right.

JM      Um but the Executor’s year can be all sorts of times your some Estates are very long difficult some of them have people claiming against a Will.

JH       Yep sure.

JM      Which obviously extends time.

JH       Generally speaking the convention is a year so there you go.

JM      That’s the convention but the Estates where people have you know a house and a bank account and some shares things like that they can be wound up much earlier than that.

JH       Right Mark from Balmain’s on the line. What’s your question for John Mark?

C2       Ah hi gentlemen ah look I am aware of this but um I think a lot of people aren’t aware John what happens if they don’t have a beneficiary on their super? Would their nearest relatives still get it or who gets hold of it who could possibly get hold of it?

JM      There’ there’s the superannuation is paid out in two ways um generally you can depending your fund make a binding nomination which directs the Trustees of the fund where to pay the benefit. That can only go to dependents. You can also put a note with your superannuation saying it’s my preference that if I should die I want my super to go to these people but the ultimate decision there is the Trustees of the super fund. If the Trustees can’t decide or there’s no binding nomination then the super benefit is paid to the Estate and distributed by the Executor of the Estate in accordance with the Will.

JH       There you go and hope that makes it clear for people. Jeff from Brisbane is on the line. What’s your question mate?

C3       Hi a friend of mine has a Will an original and a photocopy. If he loses the original is the photocopy a valid Will?

JM      Ah it it can be it’s but it’s very difficult to get Probate of a copy unless you have absolutely conclusive proof that it has been lost because there is a presumption in the law that if a person who made the Will as the last person to have it in their possession and it can’t be found their deemed to have destroyed it and therefore the copy Will would not be able to probate it so the advice here is do not lose the original and put it somewhere safe.

JH       Hold onto that Will hold onto that Will. Thank you Jeff. Rhonda from Cabramatta’s on the line. Go ahead Rhonda?

C4       Hi how are you?

JH       Good thanks.

C4       I’m just wondering is there such a thing as both right are all the children that are born in the marriage entitled to something?

JM      Well not necessarily. Again as I said earlier that um you can you’re perfectly entitled to make your Will the way you want and regrettably there are a lot of situations where there are estrangements in families and people say well I haven’t spoken to my eldest daughter for 25 years she doesn’t talk to me therefore I’m not going to leave anything to her in my Will. That’s where a family provision claim can arise but the conduct of the child or its parent or whatever else can be relevant when a claim comes because the person who made the Will said well because of the way you treated me I’m not going to leave you anything so there’s no compulsion that says that you must leave something to your children but the general opinion of the Court is that they’re your children you should consider them and make some provision for them.

JH       There you go. Thanks Rhonda. Ah Gordon from Kingsgrove um what’s your question for John mate?

C5       Um John a strange a bit of a strange one I’m a I’m a part of a Will which was distributed by the Executors to all the people involved in that Will and then um a few weeks later they said oh no there’s a second document which is unsigned undated like the original Will and we’re going to action that one and it involved two more people being recipients.  I just wondered

JH       That sounds fishy to me.

C5       The real question is when’s a Will a Will?

JM      Yes good question um the ah law gives recognition to informal documents provided that there are documents and that they contain the testamentary wishes of the person who made it ah they don’t necessarily comply with the legal requirements for a Will as far as witnessing or whatever else is concerned and they are treated by that person as being either their Will or an amendment to their Will so that it possible.  The Executors in that situation depending on how they’ve administered the Estate um might be in a difficult spot because they might have to play go fetch and get the money they’ve distributed back from the people they gave it to which might be very difficult.

JH       Yeah that sounds like an absolute mine field and of course if you are having any issues with Will and inheritances Turner Freeman Lawyers provides a range of specialised legal services including compensation, negligence law, asbestos litigation, superannuation and disability claims, employment law and of course Wills and Estates and property law. John Mann thank you very much for joining us on afternoons.

JM      A pleasure Joe.