John Mann providing Q & A on Wills & Estates – 20 August

Tuesday, 20 August 2019

 

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SP – Steve Price /JM –John Mann /C1,2,3, etc – Callers 

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SP       We are joined by Turner Freeman Lawyers our great sponsors, we are talking wills and estates today and we have on the line John Mann who is an accredited specialist in wills and estates. Afternoon to you John.

JM      G’day Steve.

SP       I’m going to make a confession here and you can get into me, get stuck into me please John, I mean the executor of my mother’s will, I don’t know what that means. 

JM      What it means is that your mum has appointed you as the person to be her representative and to carry out the administration of her estate and to carry out the wishes in her will.

SP       Does that give me great power?

JM      Yes that gives you exclusive control.

SP       Can I remove my brother from getting any of the major estate that’s going to be left to us when she passes?

JM      No, not as such. You basically have to conform with what the will says but you are in control.

SP       Should I have read it by now?

JM      Well if you mum is still alive no.

SP       She’s not, she is yes.

JM      What is in the will is entirely your mum’s affairs. If she wants to give you a copy and let you read it that’s fine but basically your executorship doesn’t pick up until she passes away.

SP       I suspect my nuances in these matters is widely spread. You would come across this all the time.

JM      Ah yes it is a very common question but most people should know that the person that they appoint as their executor, because the executor is your representative and the executor basically is you the will maker but has to get probate of the will then carry out what the will says.

SP       How important is it to have an up to date will?

JM      Well very important because life today and our assets and financial affairs are often quite fluid, for example wills from 20 years ago made no particular notion about superannuation which is now an everyday thing.

SP       Major asset of people.

JM      It is and you have to keep in mind how that should be done whether it is to be paid through your will or through the superannuation fund.  Quite a bit to consider there.  People’s assets change one to the next so it is a good idea to make sure your will is updated, you don’t have to do it on an annual basis or something like that but if you make some significant change in your life it’s a good idea to have a look.

SP       131873 if you have a question for John. You would always, obviously being from a specialist law firm that specialises in this area, suggest people go to a lawyer but do you have to have a lawyer draw up a will? 

JM      No. You can draw up your own, um like anything else, if you want to do your own brain surgery you can but I think from a point of view of recommendation firstly you are getting someone who is a professional to draw your will but secondly if you do your own and you make a mistake well it’s your own fault and you have to live with whatever the consequences of that are, if a lawyer draws it and the lawyer makes a mistake you still have rights as against the lawyer who drew the will because he might not have carried out what you wanted to say in the will in the first place. 

SP       I remind people a $100 Westfield voucher to give away today to our caller who asks the best question in our legal matters segment. We have the expert John Mann from Turner Freeman talking wills and estates. Annette’s online, first caller. How are you Annette? 

C1 –    Thank you. Thanks very much. A pretty simple one for John. I made a will, power of attorney and guardianship, I am a widow. They were drawn up by a solicitor all of the three documents and at the time my daughter, I have one child only, she was not married at the time, she has since married but in the will, power of attorney and guardianship um it is in her maiden name. Does that matter?

JM      No. She is still your daughter and she is still your daughter with the name she was christened with. Her surname might have changed and her address might have changed all sorts of things might have changed but that doesn’t affect the validity of the document. She may need evidence as to what her name now is, like a statutory declaration or something like that but no it doesn’t affect the validity of your document.  It is perfectly okay.

SP       Good simple answer. Thank you Annette. Robyn is online. G’day Robyn how are you?

C2       Good thank you. I wanted to ask, if you are separated but not divorced and you’ve sorted out your financial assets, what happens if one of the partners dies? 

JM      That’s a very interesting question. Now where people part ways there is a provision in the law that says that any part of your will that’s for the benefit of your spouse, becomes void but that’s only after you divorce so if you are in a situation where you are separated but still married, the ordinary rules of inheritance apply. So that if your ex-partner is named in your will and you should happen to pass away before you can change it that is what will happen.

C2       Wills changed.

JM      So the way that you can be assured of changing that is one is to make a new will or two make sure you are divorced. If you don’t divorce you don’t get the benefit of the statutory protection.

SP       But you would definitely go and get your will changed right John.

JM      Oh yes absolutely.

SP       Do that Robyn, that’s good advice. More calls for John straight after this.

SP       Boy do we get some good legal advice here on Tuesday afternoon every week. John Mann is talking wills for us this afternoon. Nick is in Dural. G’day Nick.

C3       G’day Steve. Um John my wife and I had our wills done about 35 years ago and it’s been gathering dust at the lawyers office for all that time. It is the usual thing that if I cark it she gets everything, if she carks it I get everything and if we both cark it together the four kids get everything, now our executor is getting a bit way too old to be our executor and we want to, well my wife wants to change it to the four kids, the four executors. We don’t need to go and pay $300 or $400 to have the name change of the executor? Can we just get the will off the lawyer and do something with it ourselves, how does it work? 

JM      You have to be very careful, these rules are probably made up by lawyers anyway but where you make an alteration to a will, where you’ve got the will that you signed 30 years ago and start scribbling on it and making changes, they may or may not be effective. The sensible course is to make a new one or to make what we call a codicil to the will which is a formal amendment but it is made in exactly the same way as an original will. Many things can happen for example the executor you’ve appointed in your original will may not want to take on the task in which case your children, if your wife had passed away as well, your children would be appointed administrators of the estate in any event but the other thing you might want to consider, I’m assuming your kids are all probably grown up by now.

C3       Yep.

JM      If you might want to consider making another will and you might want to make some provisions for your grandchildren which case is probably wise to make another one. I can’t say you can’t do these things but I don’t recommend that you do.

SP       Probably after 30 years probably worth having another crack Nick.

C3       Probably all faded all the printing has probably faded off by now.

JM      Well they don’t go off in the hot weather, they are all pretty well sound proof.

SP       I would be going to see the local lawyer if I was you.

JM      I suggest that is the appropriate course.

SP       Good on you Nick. Thanks for the call, Cheryl is in Brisbane, hi Cheryl.

C3       Hi.  Good afternoon. Um I’ve got two young daughters and we made the will out and we’ve got a guardian for them in case anything happens together or one of us. Now the eldest one is 17, she will be 18 in a few weeks. Will we have to change the will or if anything happens to us can she look after her youngest sister, she is 15.

JM      The answer rests in what your will says, now first of all the girl that’s gone past 16 does not need a guardian, she can apply for passports and all those sorts of things in her own right. To act as a guardian of her younger sister, she would have to be in some way appointed, at the moment you’ve got someone appointed in your will, you would have to change your will to put your elder daughter in as that guardian.

SP       That’s very good advice John, thank you. Do that Cheryl. Peter’s on the line in Brisbane also. Hello Peter.

C4       G’day gentleman and John. My ex’s mother in law died several months ago and the executor is her brother and they had a falling out big time and he just refuses to reply to any correspondence with regard of the estate, how can we get the executor to comply and to just bring information forward?

JM      Well first of all you need to persist on a formal basis for a request for information, request should be made in writing so that you have got some proof or some trail seeking the information. I’m assuming your ex is a beneficiary in the will?

C4       Yes that’s right. The executor is administering the will which is under the family trust.

JM      Because ultimately if the executor won’t carry out their duty to administer the estate she can apply to the court to have another executor or another administrator appointed to run the estate. That is done and that is obviously an extreme step but where probate has been granted, the court can revoke a grant of probate and appoint a new administrator if the one that is appointed by the will doesn’t….

C4       She doesn’t even know if he’s got probate.

JM      Well then it may well be, in Brisbane of course you will have to make an application through the Supreme Court in QLD, but nonetheless there are also procedures if the executor hasn’t got probate where a beneficiary can actually take proceedings to force the executor to either take probate or to drop out.

SP       So you’ve got to go to Court.

JM      So you may have to go to Court but I would get some legal advice from a QLD lawyer on that situation.

C4       So there is nothing we can do without engaging a lawyer.

JM      Not in that situation no.

SP       Go and do it Peter, it will be well worth your while I would think. Nigel is in Brisbane too, hello Nigel.

C5       How are you doing? John I just want to find out if there is a way that you can put a non-contestable clause in a will.

JM      No and Ill tell you why. The rights to challenge the will or by way of family provision order whatever you are doing, is a right that is given through the legislation and given to the courts, there is a policy in the law that you cannot agree to exclude the law where the law applies in other words, you cannot take away the jurisdiction of the court so if you say in your will I don’t want my younger son to get a share of the estate and he can’t contest my will, the fact is that he can because he has that statutory right to do so and the courts have the final say so putting that in your will won’t prevent a claim being made. Putting something down in writing not necessarily in your will may minimise a claim by saying I haven’t made any provision for my son because he hasn’t spoken to me for 20 years or he has done dreadful things to me or whatever else. That’s a separate matter.

SP       There you go Nigel. That’s great advice from our great sponsors Turner Freeman. We have John Mann on line with us today, Adam is on the Gold Coast, hello Adam.

C6       Yeh good afternoon. John I’m just interested to know, I’m an executor for a will for a friend of mine that passed away and he has 4 children listed as his beneficiaries. He unfortunately did owe some money and the bank automatically upon letting them know that this fellow deceased, they automatically took money out of his account and applied it to his personal loan. I’m interested to know with the superannuation amount is the bank first in line to get that money or are his beneficiaries first in line with the superannuation fund.

SP       Great question.

JM      To some extent superannuation is protected from the payment of debt um generally speaking the banks would have taken something from one of the bank accounts I assume which they are probably entitled to do under the arrangement with the loan. But with super it depends on whether it is paid to the estate or paid directly to the beneficiaries. These days it is possible to make a nomination to say that if I should die my superannuation goes directly to my children, it doesn’t go through my estate and it doesn’t form part of my estate.

SP       You can do that?

JM      Yes you can do that as long as you direct it that way and that your superannuation will accept a binding nomination to allow that. In a situation like that then of course your superannuation doesn’t even become an asset in the estate and is not available for the payment of debts.

SP       Great advice as well. Mark is in Liverpool. Thank you for the call Adam. Mark’s in Liverpool, G’day.

C7       G’day Steve, John. Just a question, if you can do your own will, can you also do a video recording about your keepsakes and possessions and who you want in the family to have.

JM      Well look yes you can, um it was quite common in days gone by where somebody had a will and they would say in the will I want you to divide up my furniture according to the labels that I’ve stuck on it. Who gets which bits.

SP       I can see people making videos here Mark going that V8 holden ute I’ve got in the shed that I haven’t driven for 5 years that goes to my son Fred, I mean really.

C7       I’m starting up a business and that is going to include videoing people’s bequeaths and requests.

SP       Clever. Don’t tell too many people about it Mark.

C7       People argue about possessions.

JM      What I’m going to say is, what you are doing I think is not so much saying who gets what but identifying what somebody gets. Is that the purpose of the video?

C7       That’s right. So there is no family disputes.

JM      That’s right so what you would do then, you would say to your executor I want my son to have the 650 fiat or whatever it happens to be and there is a picture of it here and that is what it looks like and that’s what he is going to get. Rather than, the video is not the means by which you give things away, that’s the will but what you are doing is saying that what I am referring to in the will is what’s shown in that video or photographs.  This commonly where ladies have very big collections of expensive jewellery and you photograph each item.

SP       You might have a bit of art on the wall.

JM      Well that’s right and this is the one that goes to my eldest daughter and this is the one that goes to my niece and so forth.

SP       Mark, it sounds like you’ve got a business opportunity on your hands there.

C7       I’m going to video funerals as well.

SP       You are going to make a fortune mate. Stop telling people these great ideas of yours, someone will steal them.

C7       There’s plenty of work out there let me tell you.

SP       Righto Mark, thank you for the call, that’s great. Great advice John and wonderful callers, we could take callers for another hour. I think we will give our Westfield voucher to Nick from Dural, thanks to Turner Freeman. John we will talk to you again very shortly.

JM      Okay.

SP       Good on you. Accredited specialist at Turner Freeman wills and estates, the questions today. 131873 is our number.