John Mann discussing Unfair Wills & Estates on the 2GB Deborah Knight Afternoon Show - 30 March 2021
John Mann discussing Unfair Wills & Estates on the 2GB Deborah Knight Afternoon Show - 30 March 2021
DK – Deborah Knight / JM – John Mann – C1,2,3, etc – Callers
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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.
JM G’day Deb.
DK Lots of calls coming through already, we’ll to them in just a moment but the story in the news recently about the death of a Chinese businessman who was living in South Australia, he died without a will, now if the average Australian was to die without a will, what’s the normal process?
JM Well, if I could just go into a little bit about that case because it illustrates a very important point. The forum or the jurisdiction of the Court to deal with a person’s property depends upon where it is, now any property which we call immovable, rather like land, is dealt with according to the law of the land where it is, other things, property, banks, money, those things immovable are dealt with by the law of domicile of the person.
DK What does that mean?
JM Domicile means basically the country in which you live and intend to remain.
DK Because this is it, he had $50 million in assets both in Australia and in China.
JM Yes, this is a very interesting question this, and as I say with the real property, if it’s in Australia, then the Australian law, the New South Wales law if it’s in New South Wales would apply to that particular asset and that would be distributed according to the laws of intestacy in that State. However, the p[art that is, if he’s domicile was Chinese, in other words, even though if he lived here he may of still retained the wish to be a Chinese person, then it would be dealt with, the other property would be dealt with in accordance with the law of China.
DK Because his mother who’s from China, she wants Chinese law to handle the assets, meaning basically that it all go to her.
JM That’s right and it’s a very distinct case in as much as part of the estate might be dealt with by the jurisdiction in Australia and part in China, this depends on the question of factors to his domicile, that’s something the courts gonna have to decide, but the point of it is this, today Australia is very much multicultural, there are a lot of people with origins outside this country and a lot of people with properties outside Australia, it’s very important to know if you have property in another part of the world, Europe or whatever, that you know and understand how that country deals with that land, because that is how the law will be applied, so that if you have property in France for example, the law provides that you have to give your family a certain percentage of it, if you don’t the law compels it, but you have to also, in some countries do not recognise Australian wills or how Australian wills are made, so that if you have property in some foreign part of the world, maybe in a country in Africa, you might have to make a second will in relation to that property in accordance with the laws of the country that it’s in.
DK Which is why it’s very complicated and why it’s so important to seek legal advice and to make sure you’ve got a will written in the first place and that’s where people like you come in, John, so it’s such a crucial thing. We’ve got lots of calls coming through, let’s get to them. Graham has got a question for you. Hi Graham.
Caller No 1: Graham
C1 Yes, I’m here, yes the question to the lawyer is that in a will there’s been a lot of money left to young teenage children and the six figure sum each and the parents, which they can have it 21 years of age, the parents have decided that they are going to use the money in the meantime and I’m concerned that if anything should happens to the parents, the children are left with nothing. What is the legal position?
JM Are the parents the trustees named in the Will?
C1 Well yes they would be.
JM Then they wold be obliged to invest funds on behalf of the children and in such a way if they’re trustees that they don’t obtain any financial benefit from it. Trustees are what the lawyers call fiduciaries and a general part of the law with fiduciaries are that they are not to make any benefit or take any benefit from the estate personally. So they wold need to be very careful in that situation that if they are going to use the money that they don’t use it for their own benefit because later when the children come of age and in entitlement they can hold them to account.
DK That’s good important advice, I hope that’s helpful for you. Jim’s got a query, hi Jim.
Caller No 2: Jim
C2 Oh hi Deborah, hell, how are you?
DK Very well thank you.
C2 Good, look I’m the sole executor of the estate of my late father, previously my sister and I were executors but since then she has been deceased herself…
JM I can’t hear you.
DK Yeah, it is a little bit of a difficult line, we might try and get Jim back on in the interim and get a bit of a clearer line there Jim, in the meantime Sharon is with us now, hi Sharon.
Caller No 3 Sharon
C3 Hi, thank you for taking my call, look I just wondered, my dad passed away in February and my brother and I are executors of the will and I was wondering if it’s possible to do the probate myself?
JM Yes, there’s no reason why you can’t, as executor you’re perfectly entitled to make your own application. I take the view that if I want to have my books done I go to an accountant or feel sick I see a doctor, and you if you want to make a will you see a lawyer, but that’s purely a lawyers’ point of view, but yes you can make your own application.
DK Alright there you are Sharron. We are talking wills and estates with John Mann from Turner Freeman Lawyers and we’ve got a $100 voucher to give away to the best call to the segment. Now Jim’s phone, we’ve given up and so we’ve actually found out what he wanted to know, John, he wanted to ask how does an estate executor go about claiming the executor’s fee?
JM Depending on who the beneficiaries are, if it’s not himself of course, then he make an application to the Court for the assessment of a commission depending on the work that he’s done and the assets that he’s realised. That I could say can be qualified by the fact that he can actually agree with the beneficiaries what that might be if they are all happy to agree to it.
DK And so he can avoid that court process if that’s the case
JM Yes, but otherwise if you can’t or someone objects to it then he has to make the application to the court, he has to file accounts, full accounts of what he’s done, he has to what’s called vouch those accounts , in other words he’s got to produce all the receipts and other dockets for what’s been done, the court will then pass those accounts and then depending on the amounts of the accounts and what they’re derived from, whether real estate or whatever else, will decide what rate of commission to pay him for each of the assets of the estate.
DK Okay, alright, there you go Jim. So hopefully that’s simpler than us trying to get through on the phone, so we’ve persevered but there’s the answer from John Mann. Millie has got a question for us too. Hello Millie.
Caller No 4 Millie
C4 Hello, how are you?
DK Very well.
C4 That’s good, I just wanted to ask can I actually challenge a will, my husband was executor of his step-father’s will which actually, when my mother-in-law passed away, he said to us that we’re okay, so she wanted to leave everything she owned to her second husband,, which is my father-in-law, stepfather-in-law, but my husband passed away, and I couldn’t find the will but stated that now the family of my stepfather-in-law basically, because he’s a bit senile now he’s getting really old, and they actually changed the will to get everything to them.
DK That is such a fraught situation, Millie, we’ll see if John has an answer for you, I think a lot of people would wonder the same thing.
JM It’s very difficult to give you any precise answer there, because it’s very hard to know what is actually happening, who is claiming what. The categories of people who can challenge a will, putting aside what we call family provision, is very limited, you have to have what’s known as plaintiff’s interest, in other words, you have to have an interest in the outcome of the case, but I couldn’t really give you an indication that whether that was there or not without knowing further about the facts.
DK We might get you to stay on the line, Millie and we’ll put you in touch with John separately because I think that’s something you can investigate with him, so Millie if you can stay on the line. Just on that too, on the text line John, someone’s wondering is there protection to prevent someone influencing an elderly person to change their will to benefit them when proving senility or duress because it’s very difficult isn’t it?
JM It is extremely difficult and it’s unfortunately an increasing problem where people are living much longer and suffering unfortunately mental difficulties where they become very vulnerable to be exploited, these things do happen, I don’t say they happen very often but they do happen and detection of them can be quite difficult, because it’s very easy for somebody to say well mum said you could have all that money and go but yourself a new car, it’s very hard for the others to prove that was not the case and mental issues are not necessarily 100% clear or straight forward as to whether a person understood what that meant or not, it’s a very fraught area.
DK It is indeed. Kate has a question for us today. Hello, Kate.
Caller No 5 Kate
DK Hi, what was your query for John Mann today?
C5 I was just wondering if there are time limits after a married person is separated to claim on an estate if there’s no will?
JM If you’re still married, there is no time limit because if you are the legal spouse then the law makes no distinction between whether you are together or not, if you are still married then you are potentially a beneficiary depending on what the family arrangement was. If you’re divorced then you have no rights at all if a person has no will except that you might be able to bring a family provision claim as a former spouse, but that becomes a much harder task to prove.
DK Alright, and Annette what was your question for John today?
Caller No 6 Annette
C6 Hi, my mum remarried about 30 years ago and the guy, my step-dad had a house at the time, they sold that, bought another one where they lived in until he passed away about 5 years ago, my mum since has sold that house and bought her own house. Now he has seven kids and the three of us from mum’s side, just wondering my mum’s worried about whether they could contest her will if it’s only us three kids in her will and not the other seven.
DK Whether the family with step children, John what’s the…
JM Step-children basically are ineligible to claim in the step-parents estate. There has to be some blood tie in that. However, if in an earlier time the other children were part of the household of which your mother was a member or were like brought up by her, then that might give them some rights in family provision but otherwise in terms of inheritance, step-children no, they’d have no claim.
DK Alright, Annette that’s an answer there and as I predicted John, we are out of time, it’s always a very popular segment but we’ll revisit it again soon. Thank you so much for joining us.
JM Thank you Deb.
DK John Mann there from Turner Freeman Lawyers and they provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, wills and estates and property law, so you can get in touch with them directly turnerfreeman.com.au or give them a call 13 43 63. Our $100 Westfield voucher today will go to Millie who had a very good question and I know it is difficult because a lot of you did have questions we didn’t get to but we will revisit the topic, it’s always a popular one in a couple of weeks here on afternoons with Deborah Knight.