John Mann providing Q & A on the 2GB Deborah Knight Afternoon Show discussing Unfair Wills & Estates – 16 March 2021

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

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Read the transcript below:

DK      This time every Tuesday, free legal advice with Turner Freeman Lawyers, this week we’re looking at unfair wills and estates. So if you’ve had trouble with a family member’s will in the past or maybe the problem was that you didn’t have a will, a member didn’t have a will or you haven’t written a will yourself and you’ve got a question, the open line number is 131 873. We’ve got a $100 Westfield voucher as well for the best question in today’s segment. John Mann is with us, special counsel and wills expert from Turner Freeman Lawyers is here to take your calls. 131 873. John, thanks for joining us. We’re hearing a bit about prenups, the agreements that people sign, usually celebrities, you hear about it in the gossip pages about who gets what in a divorce, but with prenups, if someone was to die mid divorce and you had a prenup or another agreement, how would that impact the estate?

JM      Well, it’s an interesting question. It has its complications because under provisions in the Family Provisions, if the prenuptial agreement doesn’t necessarily accord with what the person wants to get from the estate, they can still make an application for family provision. Obviously the deed they sign is a guide of what is right, but in the end, the court says well it’s up to us to decide whether that’s an adequate provision for the person, so the courts don’t like having their jurisdiction taken away from them, so it’s possible even though there’s a prenup, it could still be overturned in that situation.

DK      Hmm. And I think the question a lot of people wonder, if you do pass away and you don’t have a will, what happens then?

JM      Well there’s legislation through the state government that provides what is to happen to your property. It is mandatory, in other words, if certain situations exist, if you have a wife and children, then if they’re yours and the wife’s children, the wife takes everything and the children don’t get anything. If your spouse is not the mother of your children, then your spouse gets part of your estate and the children get the rest. There are a whole series of relatives going down on the scale, right down as far as cousins who could take your estate if you don’t have a will. Now in all circumstances, that might suit you to say “well I don’t need a will because it will all go to my wife” which is well and good, but you might also want to consider making provisions for other people in your life, you might want to vary things or make gifts to your grandchildren, you might want to make gifts to charities, there’s all sorts of things, but they’re not available if you don’t have a will.

DK      Yea, and it’s a very good point to make. 131873 if you’ve got a question for John Mann from Turner Freeman Lawyers. Max has called in, what did you want to know from John today Max?

C1       G’day Deborah and John. I’m just wondering, I’ve got four people in the will and one executor. How do you know that the value, just for arguments sake, the value of the house for sale and the super is worth say $1,000,000, if there’s one executor how do we find out if he’s telling the truth that it’s only X amount in the super and the house was sold for X amount.

JM      Ultimately Max, the executor of a will bears a duty to the beneficiaries. He should, in the ordinary course, account to the beneficiaries for what he’s done in the administration of the estate. If the beneficiaries are not satisfied with that, it’s their right to file a summons in the Supreme Court requiring the executor to file accounts of his administration of the estate. Now, that’s very much a very heavy object to hit somebody with, but nonetheless, that’s available, so that if there are any doubts about what the executor has been up to, then the beneficiaries should consider asking him to file accounts, and if he won’t then file a summons to enforce that to happen.

DK      So there are checks and balances.

JM      Yea, and for the very reason of Max’s questions, that is why that is available.

DK      It’s a good question Max, thank you for asking it. 131 873. Lester, what did you want to know from John Mann today?

C2       It’s actually probably similar to that example there, where my father’s estate, the executor was his financial advisor. He won’t tell us how much is in the estate and you know, where it’s invested or anything. The problem is, to take it to court, all he does is get his solicitors to take his fees out of the estate and we have to pay our own. It’s a catch 22. I know you just said checks and balances, but they cost….

DK      They cost, those checks and balances cost….

C2       I mean it costs $5,000 just to get advice.

DK      Yea, that’s a good point.  John?

JM      That is partly true. But if the executor is required by a summons to file accounts, and he fails to do so, then the cost of that would certainly be borne by the executor personally, not the estate. You see its his obligation to the beneficiaries to do the right thing by them, but that’s obligation so he can’t necessarily say, well I’ll tell you but all my costs have got to come out of the estate. If he refuses to tell you, then it’s a likely consequence that the court would make him pay the costs and not take them out of the estate.

DK      OK, that is good to know, hope that helps you out, Lester. Brendan, what’s your query today?

C3       Hi guys. Love your show Deb, by the way.

DK      Thank you.

C3       The question I have is, if I have children to a previous marriage and those children have disowned me and wanted to do with me for the last 20 years, can they still contest my will even though I’ve stated in my will that I want them to get nothing.

JM      I’m afraid Brendon, the answer is yes they can. They have a statutory right under the legislation because they are your children and the general attitude of the court is, whatever you’ve been through in life, they are your children and its your obligation to consider them when you make your will.  Whether they get a successful claim, bearing in mind they haven’t spoken to you for 20 years is another matter, but we can’t take away their right to bring a claim if they choose to do it.

DK      Alright, there you go Brendan, straight answer as you always get from John Mann. We’ll take a quick break then more of your questions, 131 873 here on Afternoons with Deborah Knight.

DK      Ten minutes till the top of the hour, we’re talking legal matters, wills and estates with John Mann from Turner Freeman Lawyers, let’s get to some of your calls. Chris, what did you want to know from John today?

C4       Is it a common practice or an ethical practice for the solicitor of a person to have the solicitor’s wife as a co-executor of the will?

DK      The solicitor’s wife? John?

JM      Um. No, I don’t think that would be common at all. I’d be quite surprised why, I mean the choice of executor is up to the person making the will, they can have whoever they want as their executor. I just find that a bit bizarre.

DK      Yea, is there a particular reason Chris why that’s occurred?

C4       Well the solicitor, the old guy asked my wife to be an executor or co-executor but the solicitor was really ticked off and wanted his wife to be the executor, and I thought it sounds a bit dodgy to me.

DK      Yes it does, and John’s backed you up, so maybe you might need to call a couple of other lawyers, might be a good way to go about that one, Chris, good on you for raising that.  Cal, what did you want to know from John?

C5       Good afternoon. Quick question. I have 2 children and I have made them joint beneficiary equally 50:50 in my will. Could I also make them both joint executors of the will?

DK      John?

JM      Of course you can yes. No problems at all.

DK      No problem at all. There you go. Great, we’ve got some more calls to get through so this is good. Barbara, how about you, what did you want to know?

C6       Well I think the previous man just answered my question. I have 3 adult children and I have made them executors of my will and I just wanted to know if that was a good idea.

DK      Is it a good idea, John, though to have 3 people as executors or does that complicate matters?

JM      Well it just means there’s a bit more administration to be done and sometimes if people are spatially separated, rounding them up to do documents and things like that can be a bit of an issue, but no, again it’s your entitlement, if you want all your kids to be executors, by all means do it.

DK      OK, Barbara, there you are. Chris, what’s your query?

C7       Hello. I just basically, I’m an executor of my dad’s will, my little brother and myself. My dad left 75% to me and 25% to my little brother.  He’s got an adult guardian through the Public Trustee and he’s got like issues in jail and that sort of thing. What’s the likelihood of a family provision claim being successful?

JM      Is he under financial management from the Public Trustee.

C7       That’s correct, yea.

JM      Well, if he’s under statutory financial management then whatever benefit he gets under the will should have been left in trust for him by that, otherwise, yes he can bring a claim if he is capable of it, or if he considers its not adequate then a claim can be brought on his behalf by the financial manager.

DK      OK, there you are Chris, hope that’s helpful. Peter, what was your query in regards to your will?

C8       Yea, a previous caller asked about his children that didn’t want anything to do with him and were they entitled to anything out of his will.  It’s my understanding that if you leave them maybe $10 each, it proves beyond a shadow of doubt that you have thought of them.

DK      Is that true John?

JM      Not so. If you’re going to make provisions for them, the law says the provision needs to be in all the circumstances, proper and adequate.  You cannot escape by saying I’m going to leave 2 bob to each of them and that settles their claim, it does not. If you’re leaving them nothing, then the better advice is to make sure you make your will they way you want it, but to leave written reasons with proper and accurate facts as to why you’re doing it. That’s the most efficient way of defeating their claim.

DK      And that’s why you need to get the good legal advice from someone like yourself John.  We are out of time, I knew it would be a popular segment, it always is.  We will revisit it again soon.  Thanks so much for joining us.

JM      Thank you Deb.

DK      John Mann there.  And if you need help, Turner Freeman Lawyers they provide a range of specialised legal services, compensation negligence law, asbestos litigation, superannuation and disability claims, employment law and of course wills and estates and property law. You can contact them directly on turnerfreeman.com.au or give them a bell, 13 43 63 and we’ll give our $100 Westfield voucher to Max.