John Mann discussing Unfair Wills & Estates on the 2GB Deborah Knight Afternoon Show - 27 April 2021

 ***********************

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

Listen to the podcast

Read the transcript below:

DK      And this week it is unfair wills, have you been trying to write your will but you’re not sure what to do, maybe someone close to you has passed and they didn’t have a will, get in touch 131 873, we’ve got our $100 Westfield voucher for the caller who asks the best question in our segment and John Mann, special Counsel and wills expert from Turner Freeman is on the line for us now, John thank you so much for joining us.

DK      Time for legal matters and it is a great segment to give some free legal advice for your Tuesday, 131 873 if you’ve got a question and it’s always a popular topic, wills and estates, maybe you’ve had trouble with a family member’s will, maybe you’re not sure how to best divide your estate or your assets, 131 873. We’ve got out $100 Westfield voucher for the caller who asks the best question in the segment and John Mann, special Counsel and wills expert from Turner Freeman Lawyers is on the line to answer your calls. John, good afternoon, I want to ask about estates and dividing estates before we do get to the calls because we are getting a few through already, don’t leave it to the last minute, 131 873. I guess the question with estates is how do people normally divide up their belongings, is there a general rule?

JM      Well, no I imagine from my experience most people say well look I’ve got a spouse, everything goes to them or if I’ve got no spouse but I have three children, the children get it in equal shares, but that’s not a hard fast rule at all and in fact the way trends are these days with a lot of claims being made against the provisions in wills, people making them might have to give some more careful thought to the call on them for say each of their children, so if they have two children that are well off financially and one that’s not, there would be no harm in favouring the one who’s at a disadvantage, but at the expense of the others, those are sort of considerations but otherwise in Australia we do have one thing and that is testamentary freedom, we can make our will as we see fit. European countries for example dictate that a certain percentage of the estate must go to a certain member of the family no matter what. Here we can deal with our whole estate as we wish.

DK      And people I know we often get calls on this, are often confused about the involvement of a executor, how many executors can a will have and what is your view is the ideal number?

JM      There’s no limit on the number of executors you can have, you can have twenty in you want them, but you’ve got to be practical in the sense that they have to administer the estate, there’s quite a lot of paperwork that they have to do and if you’ve got around upper half a  battalion to sign for them that’s going to be a major administrative problem.

DK      Can you sign though remotely now under covid, that change has been brought in hasn’t it?

JM      Well yes that’s true, but it’s still open to a person to choose who is to be their executor and how many they want. Ideally two I suppose in the sense that if something happens to one and they can’t do the task and the other is still here to do it, but obviously you wouldn’t choose two that don’t get on together or are likely to cause problems. But aside that, the choices are wide as it’s long.

DK      And the executor can also be a beneficiary can’t they?

JM      Yes they can, the one of the golden rules in estates is that they can’t be, is a beneficiary under a will can’t be a witness.

DK      Can’t be a witness?

JM      Yeah, that’s right, to the will, but that’s often to choose with the executor being a beneficiary but an executor can be a beneficiary, no problem about that.

DK      Alright let’s get to some of your questions, 131 873 if you’ve got one, call in now, a few calls are coming through already, don’t miss out. Susan what was your question for John Mann today?

Caller No 1     Susan

C1       Oh hi Deb, my question is I have a house that I own in my name and I’ve married again, I have two children, now if I make a will can I make it so the house is left to the children but my husband or present husband can stay there until he dies?

JM      Yes indeed you can, often in your situation you would create what we call a life estate for the new partner who can live in the house as long as they wish, it’s usually subject to conditions such as paying the rates, keeping the place insured and in repair, but when they pass away, the estate then moves on to your children as remainder under the life after the life estate, yes so that’s quite possible yes.

DK      Yeah and that’s a question that I have heard people ask before, Susan stay on the line I want to send you our $100 Westfield voucher because you’ve summed up what I think a lot of people do have queries about quite well today, so well done Susan, I’ll send you the $100 Westfield voucher, thank you for your call and we’ll get those details, send that out to you. Eric what was your question today?

Caller No 2     Eric

C2       Hello, my question was about wills, I have three brothers and one sister, and there are two brothers that I don’t want to leave anything to, and I’m just asking do I have to make a codicil to the will to explain why I don’t want them to get anything or can I just leave them out of the will and the second question was I’ve got a nephew who is on the drugs and I wanted to make his share of my estate subject to a drug test and if he doesn’t go to the drug test or he fails the drug test the money will be held by his mother,  my sister until she determines that he is fit enough to inherit the money rather than spending it on drugs.

DK      It’s interesting because conditions are tricky for wills aren’t they John?

JM      They can be but you’ve got a number of different questions there. Now firstly, it is unlikely although not impossible that your brothers would be able to claim in your estate at all. There are certain rules to eligibility of people who can claim against your estate, brother is not necessarily being one, if you’re concerned that there might be a claim in that direction, do not put it in the will, but make a separate document to go with your will that sets out the reasons why you’ve excluded your brothers. The reason why it’s a separate document is any statement you make as regards your will is admissible in evidence in there is a family provision claim. Now that means if the brothers bring a claim then your executor can produce that letter to the Court and the Court has to consider its weight, but it also means that is for whatever reason that document is not necessary or inaccurate, the executor doesn’t have to show it to the Court unless it is absolutely necessary, so I would think on balance you probably don’t even need to say why you left your brothers out because unless you have special circumstances you probably don’t owe them a duty to provide for them in the first place. The second question is in relation to your nephew, there is no reason why you can’t create a trust in your will which will put some money aside for his benefit and controlled by his mother or some other trustee which will say that the money is there for his benefit if he needs anything that can be bought out of the trust funds and held for him in trust. But what it does mean also that he doesn’t get control of the money unless he can prove to the satisfaction of your executor that he has given up the drugs and is on the path to being a citizen again and that situation then, the trust could be terminated and the money passed onto him.

DK      So you can put those sort of conditions in your Will?

JM      Yes, you can.

DK      Okay, well Eric…

JM      It’s done very commonly where people, not just drug addicts but people who may be vulnerable to financial exploitation or have disabilities, there are all sorts of things, trusts are more common than you  think.

DK      Alright that’s a far reaching answer for you Eric and that’s why we get John Mann on for this segment, if you’ve got a question 131 873, free legal advice, you can’t beat it, 131 873. We’ll take a quick break and more right after this.

DK      We’re on standby for a press conference from the Prime Minister Scott Morrison in the wake of this morning’s national cabinet meeting, we’re expecting to get confirmation that commercial flights from India have been suspended with some repatriation flights still occurring flying direct to Howard Springs at Darwin in the top end, the press conference was meant to happen 50 minutes ago but I’ll bring you the news from that as soon as we do hear from the Prime Minister but we are talking legal matters with John Mann from Turner Freeman Lawyers and Mary has a will question, G’day Mary.

Caller No 3     Mary

C3       Hello, look I’d like to know where can I get hold of a probate, it was my father’s who died 50 years ago. I just want to know because, I know it’s a long time ago but, it is possible to get hold of the probate? It’s 50 years old.

JM      Probates are a matter of public record, you can apply to the Supreme Court for a copy of a person’s probate. You probably need to know, let them know why, they will give you a copy of the probate, and a copy of the will itself, they won’t give you details of the assets of the estate unless you have some particular reason like litigation, but you can make an application, there is a fee and there’s a bit of a wait, but that’s where you’d get it from.

DK      Okay Mary, there is your answer from John Mann. Jen what was your query?

Caller No 4     Jen

C4       Yes, good afternoon Deb and John, I have a question for you, my mother drafted her will, she has four surviving children, three to one father and one to another father, she drew her will the way she did and left a small amount of cash to one of the children because she stands to inherit 100% of her father’s estate, that is equivalent to her share of the estate which is going to be shared by three other siblings. How successful would she be in contesting based on the fact that she is going to walk away with 100% of her father’s estate but she also wants a quarter of her  mother’s estate?

DK      John, have you got an answer for Jen? Sorry to cut you off Jen, we’ve just got a number of other callers wanting to get through.

JM      It is a bit difficult to give you a concise answer on that because it depends on her finances or circumstances at the time her mother passes away, but those things are all relevant in the consideration of a claim by her because if she says I want provision out of both estates then the question is whether that provision is in the first place adequate or provision at all and I considering that, all the relevant certain financial details including the possibility of inheritance from somebody else will need to be considered.

DK      So that will all be taken into account. Alright, thank you for that. Helen, self-managed super fund question.

Caller No 5     Helen

C5       Oh hi.

DK      Yes Helen, what did you want to know from John today?

C5       Yes, hi.

JM      Hello.

DK      We might, Helen I’ll just put you on hold we’ve just got a problem there with your phone line, we’ll go to Deborah in the meantime. Hi Deborah, what was your question for John?

Caller No 6     Deborah

C6       Hi John, I’ve been married I’ve had two children and was divorced, my husband re-married had another two children and he subsequently has passed away at the age of 73, everything goes to the current wife which I understand, when she passes, does the children from the step-marriage have any claim over the estate that was his that became hers or does it automatically became what she wants to happen to it?

JM      Well if the children are his and hers, the answer is yes they do, but if they’re only his children and were not brought up by the new wife the answer is they have very little prospect of making a claim because they were never been part of the same household as the deceased person and never been dependent on her for financial support, so that can become an issue, yes.

DK      Okay and Anthony we’ll try and squeeze you in with a quick question before time gets against us. What was your query for John today?

Caller No 7     Anthony

C7       Yeah, very quickly, I have a testamentary trust within my will in the scenario that is I was to pass away that my house can’t be sold to, if my wife was to remarry, I’m also coming into a significant sum shortly with my mother passing and I want to also protect that for her paternal grandchildren, can I put that as an addendum into the testamentary trust on my current property within the will?

DK      A quick answer John?

JM      Well a testamentary trust doesn’t come in to existence until you pass away, so the answer there might be somewhat difficult.

DK      Look what we ,might do is, if it’s a bit more complicated, we’ll put Anthony on hold and if you could help him off line for us that might be useful because we are out of time. Good on you John, thank you it’s always a popular segment, as I said we’ll chat again soon, John Mann there from Turner Freeman Lawyers. You stay on the line Anthony and he’ll fix your problems right up but you can search turnerfreeman.com.au or call 13 43 63.