John Mann providing Q & A on 2GB discussing Unfair Wills & Estates - 24 August 2021

 ***********************

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

Listen to the podcast

Read the transcript below:

DK      Yes, that’s right it is time to talk all things law with John Mann from Turner Freeman Lawyers. This week we are talking wills and estates, isn’t that a can of worms. Give us a call on the open line 131 873 if you have any questions around a will that you think is unfair, you think you should have gotten more than you did. It happened in my family I have to say, my great-uncle departed this mortal coil after living in our backyard, not in the yard, in a bungalow in the backyard, my mum cooked for him, fed him all his meals, gave him obviously all the board and then when he died he left all his money to the catholic church. Anyway, give us a call, 131 873 if that’s happened to you, do you think you’ve been unfairly excluded, do you think you should be in on a will. We have someone who is going to answer all your questions and of course we have a $100 Westfield voucher to give away to whoever asks the best question. As I said our guest is John Mann, he’s special counsel and wills expert from Turner Freeman and he joins me now on the line. G’day John., how are you?

JM      I’m good how are you?

DK      Very well, thank you sir. Now we’re used to the idea that a will is designed to lost someone’s belongings and decide who gets them, it’s pretty obvious it’s their last will and testament but what happens if someone’s just kind of left something off the list?

JM      Well it depends of course, first if they have a will how it’s expressed, because some people do have a will but they forget to put things in and other people just simply don’t have a will at all and in those situations we have what’s called an intestacy or partial intestacy, that means that there are certain laws that lay down who is to inherit another person’s property if they should die without a will. Those are fairly logical categories and as much use it is, husband, they take all unless there’s children from a previous relationship. If there’s no spouse it goes to children and then grandchildren of deceased children and so forth. It basically swallows I suppose mediaeval concept of bloodline and that’s what happens to your property if you don’t have a will saying how you want to dispose of your property.

DK      And does the same thing happen if you do have a will but you’ve forgotten to put something on it, like maybe you’ve had some assets that you might not know, someone might have shares they’d forgotten about or some kind of property that they’d forgotten they had or didn’t include on the document, would that default to the mediaeval bloodline as you say or would they look at the existing will and say well he gave something similar to this person, maybe he obviously expected them to have that too.

JM      That’s precisely how it is dealt with. That usually arises in a situation where somebody said I’m leaving my car to so and so and my house to something in the bank to something, and then they forgot to say what’s to happen to the shares that they’ve got. So that the house and the others would go according to the will, the shares would be distributed on their intestacy unless there is a general clause in there called a residue clause saying that whatever else I’ve got gets divided up this way. That regrettably happens sometimes with home-made wills where people just forget to do these things and consequently there’s partly the will determines their estate and partly intestacy.

DK      And what, and I love this question, what if they have a secret asset. We’ve heard about sort of husbands and wives who have secret bank accounts that the other one doesn’t know about, whether it’s so they can do a bit of extra shopping or something more sinister if they think they might need to be able to escape or whatever, what if a deceased has a property the family doesn’t know about because they’ve promised it to say, I don’t know their secret lover.

JM      If they’ve got a will they better let the executor know cause the executor is the one who has to deal with the assets of the deceased person. If the executor doesn’t know they’ve got a secret stash somewhere, it might just quietly disappear into the distance like unclaimed money in bank accounts and so forth.

DK      Can you say to the executor hey shh, don’t tell anyone else but I want Bubbles to het the car.

JM      Well if you’re going to get it by will you’ve really got to say in your will I want Bubbles to get the car otherwise Bubbles may miss out.

DK      What happens if you do divide an estate but then you later find out there was an asset that no one knew about, can you then renegotiate.

JM      They can be dealt with subsequently, it does happen bank accounts turn up, other things turn up, those can be dealt with under the will they are. Sometime bits turn up years later and the estate has to be sort of revived in order to get that dealt with.

DK      And is there a way to challenge a will or to negotiate the terms of a will without taking it to Court?

JM      Well yes, where everybody in the will is in an adult and under no disability, if they all agree they can enter into a deed which says instead of Red getting the shares, Joe gets the shares. There can be stamp duty consequences and things like that but yes, in that situation where everybody is in agreement and they’re all adults and under no disability, yes they can agree to change the terms of the will.

DK      There you go. And one quite common scenario I’m imagining is people who maybe get divorced later in life and then one party dies, the husband dies say and then leaves all his assets to the children, but cuts his former wife out of it, does that happen often and can the former partner then challenge that?

JM      Well, there are special rules for divorce. When I say divorce it means not that you’ve just parted ways but you have formally had your marriage terminated by what they call a Decree Nisi. Now where you are divorced in the full sense, any part of a will that you may have that benefits your former spouse is void. So that the whole will could be missed out, but where these things do cause difficulty is where people have been separated for many years but haven’t divorced as such but nonetheless the last thing in the will is they want their ex to get their estate but nonetheless that is what happens because it then falls back to the rules of intestacy if they don’t have a will at all.

DK      There you go. So if you want the money don’t sign the divorce papers. I love it. We’ve got plenty of calls coming in as I’m sure you can imagine, John. Joy from Tweed Heads has called in on this very subject. Joy what would you like to ask John?

Caller No 1     Joy

C1       We’ve gone through a separation for 5 years, we’ve had our binding financial agreement done through solicitors but we’re not actually divorced. Now what happens with each other’s estates?

JM      Do you have wills?

C1       Well yes and it’s still got each other as the sole beneficiary but we haven’t changed it, which I need to do.

JM      You certainly do need to do that because otherwise that remains your last will and should anything happen, whatever that will says is where your estate would go, so if you’re separated then it’s a very sensible idea to make a new will as to what you want to happen if something happens to you.

DK      There you go, I think Joy’s just ducked off to the printer now. Don’t go anywhere we’ve got plenty more calls coming through, Thanks John, stay on the line and we’ll be talking more about last wills and testaments right after this.

DK      Welcome back to afternoons, plenty of calls coming in to get through. John from Orange, you’ve got a question for John Mann of course from Turner Freeman who’s answering all your questions regarding wills. What would you like to ask?

Caller No 2     John

C2       I was in a relationship for 15 years and there was a property involved and I had some children and we were told that the property was going to be left to my partner and I and we separated a few years ago and I found out that the father had been dead for 6 years and Probate hadn’t been done, so I’ve got no way of finding out if I am in the will or am I not or my children, are they in it.

DK      So your partner’s father died and was going to leave the property to you and the kids or her and the kids and you don’t know what’s happened.

C2       We since separated and the executor would have been the mother and as far as I can find out after 6 or more years probate still hadn’t been done.

DK      Right, John what happens in that situation?

JM      That’s a very complex questions because it also depends upon what the ownership of the house was, if it was just the father then there would have to have been probate of his will if it hasn’t been, there still can be, but if it was him and his wife and that was held in what lawyers refer to as joint tenancy, that property would have automatically gone to her in full so that it may be in her name only and the fate of that house depended on what her will then says. I would strongly suggest the first thing you could do wold be to get a search of the title to see whose name it is in and depending on what that tells us, will then determine whether or not, first or whether there is any entitlement to probate if it’s just in his name but then if no one’s applied for probate well nothing can happen about the house until someone does if it’s just in his name.

DK      There you go, so quite a complex one, sorry about that John, good luck. Paul has called in, g’day Paul, this is a very tragic situation.

Caller No 3     Paul

C3       What it is John, I had two sons, both of them had two children each, unfortunately one son died in a car accident and we didn’t really get along with the daughter-in-;law that well over the years and I’m just wondering what the position is now if we left, if I left all my money to my remaining son would the daughter-in-law be entitled to any?

JM      Not on what you tell me, but there is nothing to stop you leaving whatever share of your estate you wish to your grandchildren. Now as they’re little that can be held in trust for them until they come of age and you could give that to a trustee who had control of the money which puts it beyond the reach of those children’s mother. Otherwise if you leave that all to your other son then you got to take it on trust that he will do the right thing by looking after his nieces or nephews whatever the case may be. But you can certainly make a gift in your will direct to your grandchildren.

DK      There you go Paul, sound pretty straightforward. This question has come through, absolutely fascinating, Michael has written in and he says can a soldier in a battle scenario make a verbal will, in other words can a person make a verbal will under extreme circumstances if witnesses are present to attest to it?

JM      There was a special part of the law which really cam e about in the first world war when there was such mass slaughter of young men that they could make a will in their, basically done in their pay book to say what would happen to their estate if they were killed in the war. They were recognised as being valid wills, I’m not so certain today whether those provisions still apply because the question, I haven’t come across that question in years, but certainly in that situation a verbal will is no good, it has to a document. A document could be just a piece of paper, it can be a video tape, it can be a recoding tape, it can be a number of other things, if that contains the testamentary wishes of the person and they can’t make a will because they are stuck out in the middle of a battlefield somewhere, I’m sure that will be recognised by the Courts as being a valid will.

DK      Isn’t that fascinating.

JM      Go back and look at the books to see whether the military…..

DK      I’m pretty sure soldiers these days all have mobile phones on them and they’d be able to actually record their will on the mobile phone, Anyway we get a lot of questions I’ve never heard before which is why I love these guys. Henry from Gosford has called in, he’s got another very interesting question. Fire away Henry.

Caller No 4     Henry

C4       Okay just a question, I’m re-doing my will cause things have changed and I haven’t done one for many years. I have two boys, both in their early 30’s. One is a god-send the other one is now a drug addict, we haven’t spoken to for 5 years, and I took out an order to keep him away from our house. He’s heavily dependent on drugs. Now I’ve spent a fortune, halve my super trying to keep him out of jail through an assault.

DK      Henry I gather you want  a way to stop him from being able to access your money in your will after you go and spending it on drugs. John, is there anything Henry can do?

JM      Yes, first of all to exclude him entirely would be nothing more than to invite a claim because he’s your son, the law says he’s your son you’ve got to consider his call on you when you pass away, but it is quite in order for you to set up some of your estate or whatever proportion you consider appropriate in a trust which is to be held for his benefit.

DK      Got you, John. We are running out of time of course if you want to get in touch with any of the lawyers a Turner Freeman visit www.turnerfreeman.com.au or call 13 43 63 and Henry we’re going to give you that $100 Westfield voucher.