No Win No Fee on all compensation claims

John Mann providing Q & A on 6 October 2015

The estate of Richie Benaud

Tuesday, 6 October 2015 


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


 CS       Yeah, if listeners want to make additional comments to the subjects that we have been discussing already today, quite happy to return to that after 2 o’clock this afternoon, but for now, thanks to Turner Freeman, we’ve got our Legal Matters segment and today it’s Wills and Estates and in particular off the back of what we discovered last week is going on with the estate of Richie Benaud. It’s a fascinating time to have the topic covered today. Last week we saw Ritchie’s first wife, Marcia ………. take legal action over Benaud’s Will and everyone that I’ve spoken to about this keeps saying, hang on, he’s been with…. he was with his wife, Daphne for 50 years. How can you possibly have any access to someone’s Estate when you haven’t been near them for 50 years? It’s an interesting question I’ll ask John Mann in just a second. But, as usual each week we give away $100 Westfield voucher and I’ll do that again for the call of the afternoon between now and 2 o’clock. 131873 is the telephone number, if you’ve got a question for John Man from Turner Freeman and you can also follow the Legal Matters column in your local newspaper as well because it usually goes in co-ordination with what we do on the program here every Tuesday and whether it’s compensation law or wills and estates or family law or medical law, you’ll have it covered there in your local paper courtesy of Turner Freeman, so get hold of the local paper and follow that column but also that $100 voucher up for grabs for one of our callers this afternoon. So, John Mann good afternoon to you.

JM      G’day Chris.

CS       I was about to say something else. I was about to ask a question before I even welcomed you to the program but I’m really intrigued by what went on with Richie Benaud. Now, you’re not the instructing solicitor so you’re not involved in the case, let’s get that straight and you’re not privy to some of the paperwork etc, but as a concept, how does an ex-wife have any right to make an application to access any of the estate of someone they haven’t been with for 50 years?

JM      The time is not really an element. The legislation, the Succession Act, 2006 which is the modern legislation following the Family Provision Act, incorporates a provision that a former wife is eligible to claim a deceased’s person’s estate. Now there are some elements ……..

CS       Even if things may have been amicable 50 years ago.

JM      Quite so.

CS       Wow. 

JM      Now the former spouses prospects of success are not necessarily easy because she has to show what’s called factors warranting. Now factors warranting is a nebulous legal concept. It says why should they be allowed some provision out of the estate ahead of other people for whom the deceased’s person has made provision or should of made provision. Now they have to show that and if when they parted ways there was a party settlement with the former wife, her prospects of success are greatly reduced.

CS       Hmmm.

JM      But nonetheless she has a statutory right to make a claim.

CS       And does that mean that a son has a statutory right to make a claim as well?

JM      Children are always children. Children have a right no matter what marriage they are from or wherever from. But wives, former wives do have a right to apply but there are more restrictions on them than they are, say with children.

CS       Wow that leads obviously that many people that are listening asking a question relating to their own situation. 131873. Jump on now and John Mann will endeavour to answer your question. 131873. Katie go right ahead John is listening.

Caller 1:  Katie

Katie   Yes, good afternoon John. Just on a matter of a Power of Attorney and Enduring Guardianship, where there are three attorneys the same people and guardian’s names and they are appointed jointly to be my guardians, my question is what is the responsibility or obligation of the respective guardians if there is three and there are only two acting, to the third …… guardian or attorney. Is there an obligation to communicate with them as to what is happening, if there is anything may take place….

JM      Strictly speaking, let’s get this clear that in your Power of Attorney and Guardianship you have three people appointed and any two to act.  Is that how it operates?

Katie     That’s how it reads. This is in the…. and this is in particular to a health issue currently that I’m doing it… but yes there is…..the same to both and it says on the enduring guardianship :” I appoint any two of the appointees jointly to be my guardians”….. so that…. I’m not sure if there is anything else that would be relevant……  in……. yes that’s what it says. So there’s three people saying if one doesn’t have the same agreement or feels that the other two are not….. is not in the person’s interest, what is the situation? Or should they be informed firstly, should they be informed by say the two guardians that are acting – the third?

JM      The real issue is how the things are to be exercised.

CS       It’s an odd format isn’t it? 

JM      Well it is in the sense that it’s asking for trouble if two don’t get on with one….

Katie   That’s right.

CS       Because the usual format is one is a guardian for a particular person right?

JM      Yes that’s so. Yes. Very often……..

Katie   The children have been made the guardians and attorneys. The three children.

JM      Yes. Well the overall position is that they have got to act in the best interests of the person who appoints them. It’s not sort of a side show with the attorneys and the guardians fighting amongst themselves. Now if one of them feels that the other two are not doing what is right by the person who appointed them, they all have to make an application to [ENCAT] in the Guardian Division either for appointment of somebody else for re-arrangement for the guardianship arrangements so the person’s interests are best served. 

Katie   Just to wrap it up ……… yes there’s a surgical procedure that has been deemed to take place. It needs to be…. I won’t go into much detail – that has been booked for an elderly parent. I am medically trained and this is done without any of my knowledge. It has to be attended but we can do it in a gentler way. I do not think that my parent will get through the anaesthetic because of their state, I need to stop it because I don’t think it will to be their demise and…..

JM      Sounds more a medical matter than a legal matter frankly.

Katie   Well it’s just that…. yes…. possibly. If a doctor is saying well you’re not…… That I’m not at liberty to act because of the two guardians jointly to be appointed and just dismisses, it could be overturned and I don’t believe that I will have a parent alive after…….

CS       Geez, it’s a very serious situation……

JM      Well it is…. I think that if you feel that way and you have medical evidence to support your view, I would be making an urgent application to the Guardianship of ENCAT to have the whole situation reviewed.

CS       And what we’ll do Katie… what we might do is grab your contact number and try and give you some additional advice maybe after the segment because we need to get to other callers but this is a very serious situation you may need help with, so we’ll put Katie through to Carla and we’ll get her details because we might deal with that a little bit later as well. 131873, we’ll take a break and back with John Mann from Turner Freeman. 


CS       This is our Turner Freeman Legal Matters segment. I want to go back to ½ hour ago on the program when we weren’t doing Legal Matters and someone rang in to say that there were only about I think 1300 churches in Australia and I said that’s not true. He said, oh yes there is.  There’s 13,000 which is probably a little closer to the truth, even 13,000 sounds a little bit basic. But anyway not 1300, he was wrong, closer to 13,000 according to most of the searches we have made. Let’s get back to your calls. Michael go ahead. John Mann is listening.

Caller 2 – Michael 

Michael           Good afternoon, my question is that, I’ve now been divorced for about 8 years. Very Very limited contact with one of my daughters. I’m thinking about my Will and I wanted to put in the Will that on my death, the daughter I’m not having any contact with, in order to earn her share, has to do community service and it has to be independently monitored and she’ll be paid in dribs and drabs, but I was told that I can’t do it. Can you help me?

JM      Well look I think it’s drawing rather along to set up a gift like that in a Will because first of all, who’s going to police it? And secondly who’s going to manage the funds. You’ll have to have a Trustee, you’ll have to run it over a period of time. The Trustee will have to make sure that the daughter’s acted up to what you want. Look, basically you can put most things in your Will, but I would think that would be rather impracticable.

Michael           Yeah. It’s just that I feel somewhat strongly because I’ve tried probably on 20 occasions to have some sort of dialogue with my daughter and there’s been nothing and I suppose I am a little bit bitter about the whole thing and I know that if I’m not careful and I omit her from the Will, she’ll certainly appeal the Will and take the Estate to Court.

JM      What age is she?

Michael           About 24.

JM      You have other children?

Michael           One other.

JM      What age?

Michael           21.

JM      21. So they’re both adults who both.

Michael           Yep.

JM      And you have a wife?

Michael           I have a partner.

JM      A partner….Primarily your duty is to provide for your partner. You can consider making a provision for your daughter and your other child but that does not necessarily have to be any major part of the Estate. But to leave them entirely will probably invite a claim unless there is some very compelling reason why she has no contact with you.

CS       So reading between the lines, his duty is to his new partner and just because they kept them out of the Will, it doesn’t necessarily mean that they have reason to get that estate and therefore maybe there’s a compromise here by giving them something to then move on once he passes away.

JM      Exactly Chris.

CS       Alright. There’s a compromise there. 131873. Andrew go ahead.

Caller 3 – Andrew 

Andrew          Oh hello gentlemen, now are you?

CS       Very well.

Andrew          I have a question. Currently a Will is in progress, a person who lived with my father-in-law is claiming against that Will currently, that person through lawyers, solicitors has also suggested that there were other women going back 10, 8 years ago that also lived with my father-in-law. Not married, not a de facto relationship, but they should also be noted. Sorry notified in regards to their death – although they weren’t married, there wasn’t a de facto relationship. Does that have to occur?

JM      There is a current claim. Is that the situation?

Andrew          There is a claim that currently someone is contesting on the Will currently and that person who’s contesting that Will for whatever reason has decided to also mention that there was previous one or two people who lived with my father-in-law some years ago – 8, 10, 12 years ago and said that they should be notified that he has passed away.

JM      That’s probably…….

Andrew          Do they have to be if they weren’t a de facto and they haven’t contested…..

CS       That’s interesting, off the back of what we discussed with the Benaud situation. So we are talking about an old partner from a previous relationship and whether they have therefore any access to submit to, make a submission to part of that estate.

JM      Well basically where a claim is being made under the Court rules and legislation, anybody who might be eligible to claim must be notified and that’s the duty of the executor. Now they may not have a claim, but remembering also that putting aside the question of being a spouse or de facto spouse, there is another category of people who might have lived in the same household as the deceased person at any time been dependent on them for financial support who can also claim.

CS       Yeah. And so the answer is yes. Andrew I’m going to give you the $100 Westfield voucher because it really is a deeper question off the back of what we discussed earlier about Richie Benaud. Thank you very much for your call. Stay right there mate, we’ll get him the $100 voucher. John Mann. Thank you very much for your time this afternoon.

JM      Thank you Chris.

CS       A very interesting topic today. John Mann from Turner Freeman in Legal Matters.


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