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John Mann providing Q & A on the 2GB Afternoon Show discussing Wills & Estates

John Mann providing Q & A on the 2GB Afternoon Show discussing Wills & Estates - 24 March 2020

Tuesday, 24 March 2020

DK – Debra Knight /JM –John Mann /C1,2,3, etc – Callers


DK      And we are trying to bring some normality to you as well in the midst of all of this and our regulars – they’re here. And we’ve got Turner Freeman Lawyers, Legal Matters that we do every Tuesday and last week that we spoke about the last time – we spoke about unfair Wills and disputes – we got such a huge response from you, we’d thought we’d do it again. So many calls – people wanting to know how to exclude others from Wills – how to stop someone from fighting a Will and all the other formal issues that come with Wills. So, this topic it is a big issue for a lot of us – what are the rights and the duties of an executor when it comes to a Will? If you’ve got a legal question, give us a call – 131 873 – and as always we’ve got our $100 Westfield Voucher to give away to the caller with the best question in our Legal Matters segment. Turner Freeman Lawyers – they provide a range of specialised legal services and John Mann – Partner with Turner Freeman’s Parramatta office – he is working from home and he is on the line for us now – G’day John.

JM      G’day.

DK      Glad that you can join us and we’ve already got quite a few calls through on this one – but just first off when it comes to an executor, what is the role – what are the duties of an executor of a Will?

JM      Look, the executor is the person or persons that you appoint. Basically to represent you – in other words, it is sometimes referred to as your legal personal representatives – to some extent, your executor becomes you – they then have to carry out what your wishes are of your Will. You will get Probate of your Will, pay your debts and will distribute your Estate according to what you’ve said in your Will. Now, it’s an old custom – it’s not an custom – it is ancient law – the executor has custody of the body of the person who’s passed away, therefore the arrangements for funerals generally are the responsibility of the executor even though in this day and age, families are largely involved and as executors is not necessarily one of the family. So that was one of the old general legal principles – the executor had control of the body of the deceased,

DK      And can you get – you know a couple of questions I’ve got – (a) Can you get out of being an executor? Because some people perhaps don’t want to do that – don’t want to have that responsibility and do you get paid?

JM      To answer those in 2 – and the answer is “no” – you don’t have to be a person’s executor and I generally say to people who are making a Will appointing somebody would both consult this person first to make sure they are willing to do the task. Just because you are nominated, they’re someone’s executor – doesn’t mean to say you have to do it and in fact you can – what’s call “renounced” – in other words step back and say I will not be the executor of this Estate – and there’s no penalties or anything else for doing so. You know – there’s someone that could put your arm behind your back and say that you have to do it. Now in terms of the second question. Sometimes people can leave gifts to the executor in the Will to say – if you are my executor and look after my Estate, I give you an amount of $10,000/$20,000 or whatever figure they see appropriate or if not under the general legal principals, an executor is entitled to the commission. Now commission is an amount of their pay to their and pain and trouble in looking after the Estate – that’s usually a percentage of the value of the assets of the Estate or the income that comes into the Estate.

DK      All right – so they can be entitled to something. Pam’s actually got a good question, which I’ll let her ask – I was going to ask her – but Pam you fire away –

Caller 1 –  Pam

Pam    Oh hello John. I just wanted to know whether you would actually nominate a solicitor to be your executor rather than actually naming someone?

JM      Yes you can. Generally speaking, people don’t do that but sometimes in life there is no-one else to take that task on or they want someone who is totally independent of family to do it. Yes – you can do so. The executor would usually advise you that you will need to say something in your Will would be the executor as a solicitor is entitled to charge his professional fees if he ordinarily would in this situation like this and whether or not you are going to say you can also apply for a commission. But yes, you can do that.

DK    Alright – there you go. So you can nominate a solicitor as an executor. Good question Pam. Thank you. KB is on the line in Brisbane. Hi KB.

Caller 2 – KB

KB      Hi guys. How are we?   

DK      Good.

JM      Good thank you.

KB      My question is when you’ve start up your superannuation and initially you fill out a binding beneficiary and on that you might have person A okay and then maybe your situation changes and you haven’t changed that, does the Will supersede the binding beneficiary that you initially or have on your superannuation?

DK      Scratchy line there KB. But did you get that question John?

JM      I had trouble hearing that I’m sorry.

DK      Yes – effectively can you direct where your super goes?

JM      Yes you can. That depends on the rules of the funds. Most funds will allow you to make what’s called a binding nomination which nominates generally speaking a dependent as to who’s to receive the benefit of your superannuation. Now that is actually paid to that nominated person outside the Will. That doesn’t come through the Estate. But you can also so that I want my superannuation benefit payable to my legal personal representative who is my executor and that then it can be distributed under the terms of the Will. That also depends upon what the funds whether they accept binding nominations or not, whether that binding nomination is one that is enduring or one that has to be renewed – there’s quite a lot of dimensions in that. But yes – yes – you can direct payment of your super in a fund that accepts binding nominations. Yes.

DK      All right. That’s good. Good answer. Now Wendy. This is a question that I think I am going to know the answer to but fire away. 

Caller 3 – Wendy

Wendy            Yes I think I know the answer too. John. I’ve got a Will. I desperately need to change it at the moment, but I’ve been unwell not with COVID-19 but I do have this cough and all of that and I don’t want to go near anybody and can I temporarily to perceive my own Will by writing one to change this important detail I want to change or not? Until I can get to my solicitor.

JM      Yes…. ah. I can’t blame you for wanting to step away from solicitors at the best of times… but in an ordinary situations where a Will is prepared, it’s signed by the person who makes it and in the presence of 2 witnesses. Now in more recent times the law relating to strict compliance with that has been relaxed to some extent so that it is in the circumstances you are in, possible to make a Will by simply you writing another one, I would strongly suggest that if you did so, you sign it and put a date in it and then have to put a statement on it – something like “Unless and until I make another Will which fulfills legal requirements, I intend that this document without reference to anything else constitutes my Will”. That’s the best way of getting this as an informal Will through Probate. Still have to get an Order of the Court to get it through but in a situation like that and bearing in mind your circumstances, I think that would probably be sufficient.

DK      Yes – we are in interesting times so it’s a very relevant question from Wendy there. Good on you – thank you – We’ve got a board full of calls here John. I knew this would happen – it was such a popular segment last time. We’ll take a quick break and get back to more of your calls right after this.

And at 12 to 2 – 12 to 1 in Queensland, we are talking legal matters with John Mann from Turner Freeman Lawyers focusing on Wills and Estates – it’s a popular one – we’ve got a board full of calls – let’s go to Barry who has been waiting very patiently on the line. G’day Barry.

Caller 4 – Barry

Barry  G’day there. I’m the first time caller.

DK      Oh thank you for calling.

Barry  Okay darling. Yes – I’m in my early 80s and many years ago I was enticed to making out a Will and here I am still single but looking for Miss Right.

DK      Oh – good on you.

Barry  Thank you. Anyway, my hair scratcher is – if I do eventually find Miss Right, pop the question to her and she agrees, okay – we became husband and wife. Will I have the right to completely delete the Will I was enticed to making many many years ago and make out a fresh Will in favour of my wife?

DK      Good question Barry. Geeze Look at you. You are sprightly at 80 – you do – on the lookout. I love it.

JM      Two things. If you do marry – whatever Will you have, good, bad or indifferent will be cancelled or revoked by that marriage – that’s plain and simple. But you could also bear in mind that even if particularly if you say you were duped or induced into making this Will in the past, you can always change it – you can do that whenever you like. You can always make a new Will – you can make a new Will every day right up to the day that you pass away as long as you have got the capacity to do so. There’s no reason to sit back saying – oh dear I was duped into this and the way it will be. Why don’t you just go and change it or cancel it. That’s quite simple.

Barry  Good mate. The ………….. solicitor?

JM      Beg your pardon?

Barry  Does your tip for me to go to a solicitor?

JM      I think that’s – that is probably the better advice – I mean if you are sick you go to a doctor – if you want your tax done you go to a accountant etc – I think it is better to consult professional help – yes.

DK      Yes good one Barry and good luck in finding Ms Right. She’s out there for you I’m sure. Wonderful. Thank you. Good on you for calling in.  Yvonne’s got a good question too in Kings Langley regarding leaving things to the kids Yvonne?

Caller 5 – Yvonne

Yvonne           Yes. I have a standard Will – husband leaves everything to the wife and the wife leaves everything to the husband, but I choose to leave my half to my two children instead of my spouse. Can I do that and what are the repercussions?

JM      Well that’s a complicated issue particularly without knowing what the structure of the present assets are because if assets are jointly owned, there might be some difficulty in saying where my share goes because your share might automatically go to your husband depending on how that ownership is set up.

Yvonne           Yes – we only – we just have the house in joint names – we don’t have.

JM      Yes well – if that is what the law – is called a joint tenancy – you’ll need to look at your Deeds to see – check that. Then if you pass away, you’re husband automatically owns the entirety of the house – there’s nothing to leave in your Will to your children because the joint tenancy takes your share away to any surviving joint tenants. So the answer to your question is – yes you can do that but you will need to make sure that your assets are set up in such a way that you have distinct and separate one half shares of all your property and you can say what I have goes to my children. Now…….. I’d also caution……..

DK      I reckon that means Yvonne should probably should come and have a chat like yourself John.

JM      Oh you definitely need to seek professional help on that one. Because also hanging over that you have your husband’s possible rights or claims under Family Provision whereby he might say – well I’m your spouse and I think you should make provision to me before you make provisions to the children. Again, I think you need some professional advice in regards to that matter.

DK      All right good on you Yvonne. Thank you for the call. Steve’s got a good question as well in Box Hill. Hi Steve.

Caller 6 – Steve

Steve   Yeah hi. Quickly, my father died some years ago. Everything went to his second wife. It was understood that when she died everything would be split between me and my two brothers and her two daughters. I’ve lost contact with her. She has since moved and sold the house that they lived in and I’ve got no idea if she is alive or dead or what her intentions are if any. So…. I don’t know what to do.

JM      Yes unfortunately you are in a very difficult position there because unless your father married her when you were young when you were brought up as part of her household, you are not eligible to make any claim to her Estate if she passed away unless she has made a Will which gives you some part of it. That’s very difficult to know without finding her and then asking her what the situation is because.

Steve   I’m pretty sure I’d know the answer to that one.

DK      It’s a curly one.

JM      Incredibly, these things don’t always go the way people say they might. Although I can’t say that he would strongly, but you’ve got to remember that the situation like this is bloods thicker than water and sometimes people do or don’t do what they say they would but you’d need to find out first of all that by checking to see if she’s alive – you’d check with Registry of Birth, Deaths and Marriages whether she’s passed away or not. But then you’d need to find out where and if she had a Will – was there Probate of the Estate – there’s – again quite a few dimensions in that and again without necessarily advertising to the legal profession, I think professional help would be of some assistance there too.

DK      Yes.  All right – good on you Steve with that question. I think we’re pretty much out of time here – I will see – David’s got a quick one which I will ask for him – whether or not an executor is legally liable?

JM      Yes – the executor can be legally liable – in a situation for example where the Estate has earned income and the executor fails to lodge a tax return, the executor can be personally liable for the taxation issues. It doesn’t apply to taxes the deceased person owed before they died, but anything that comes after that – it can be the responsibility of the executor. They bear a personal responsibility that’s right.

DK      Okay. All right. John. We are going to have to do it again and again we have got lots of calls we couldn’t get to. Lots…… very popular subject – I reckon we should give our $100 Westfield voucher to Barry – what do you reckon? Looking for Miss Right?

JM      I think so – yes. Yes. Yes.

DK      All right. We’ll get Barry’s details and send him out that $100 Westfield Voucher and we will revisit this with John Mann. John. Good on you. Thank you so much. He is of course a partner with Turner Freeman at their Parramatta office. If you need any legal advice, they’re terrific. and you can call 13 43 63 as well.