Kyle McCabe discussing unfair wills and will disputes

Tuesday, 25 February 2020

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DK – Debra Knight/KM – Kyle McCabe /C1,2,3, etc – Callers

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DK        It’s a segment we do at this time every Tuesday. It’s always popular – so if you’ve got a question, give us a call now – 131 873 is the number. We are talking Wills and I wanted to talk about because I saw a really interesting article and it was talking about Wills and the need to get them up to date but it also talked about things like an unsent SMS – an unsent texted message, a message on a tractor and even a poem and really the days of a legal document on paper it seems are long gone because in this modern digital age, there are many more options when creating a Will and it can cause headaches in the Courts and for lawyers but in terms of documentation, there are unusual ways you can do it. So we thought we would include that in our chat today – our Legal Matters Segment and you might have also seen in the news, Hollywood legend Kurt Douglas – he was snubbed – he snubbed his son Michael in his Will and he is sending the bulk of his $92 million dollar fortune elsewhere. The majority of it isn’t going to his family or his son, it is going to charities. Michael himself is worth a pretty penny. He’s worth about $450 million dollars in his own right, but as always I guess it makes you wonder, can you challenge Wills? And what sort of rights do you have? We’ve got a $100 Westfield voucher to give away as we do every Tuesday to the person who asks the best question in our Legal matters Segment and Turner Freeman Lawyers is the firm to turn to when you’ve got questions – Kyle McCabe specialises in Wills and Estates law and property law and is based in Turner Freeman’s Penrith office and he’s with me now in the studio. Kyle – Hi – welcome.

KM        Hi Deb – thanks.

DK        It is one of those things isn’t it with Wills that people do put it off – put it off – but you’ve got to get it right.

KM        That’s certainly the case. And then you don’t want to leave it too late and to a point where you may not understand what you are doing and comprehending things.

DK        So what are the classic mistakes that you see all the time when it comes to Wills?

KM        One of the common mistakes or I suppose errors that someone might make is if they buy a home-made Will kit…..

DK        And you can get them from the post office can’t you?

KM        Yes – newsagents, post office all of that and then they write things out and that might be fine if it’s a simple case of husband/wife with a couple of kids, but if things are more complicated and there’s de facto spouses and children of previous marriages, there can be all the manner of problems.

DK        And is it true that you would need to update your Will if you have children or if you re-marry, you need to update your document?

KM        Generally that is advisable. If you marry and you’ve already got a previous Will – the marriage revokes the previous Will and then if you get divorced – that revokes part of the Will, but it’s always a good idea to have a think about things.

DK        Yeah. You’ve got to get that stuff right. And tell me about this stuff that I did read of people who are using a texted message or a voicemail or even a poem and that is considered a legal document – a legal Will – Is that true?

KM        It can be. It can be in certain circumstances. It is always advisable to go to probably go to a solicitor and have it put down in you know the usual way or common practice way but I suppose these days where you can record things quite easily or make videos – in certain circumstances, Court’s do approve those as being valid Wills although it can result in additional cost to the Estate.

DK        And also a challenge down the line I’d image too.

KM        Yes – Exactly right.

DK        Yes – 131 873 is the number to call – you might have a question for Kyle, now’s the time to call – Stewart is with us first off in Glenhaven – with a question for Kyle. Hi Stewart.

Caller No 1 – Stewart

Stewart            G’day – thanks for taking my call. We have – my wife and I have got a Will – we haven’t updated it for a little while. We have been married for 20 years. We have 3 foster children which have had from a very young age and they are all siblings. We are just staring the adoption process with them all. We are just not sure – we are just worried that they are not included in the Will or to be looked after – do we look at trying to do something now or do we wait for the adoption to go through as it’s too complicated? Or……

DK        Yes – good question Stewart – the timing of that with adoption – what’s the answer?

KM        So Stewart, foster children aren’t considered to be children of a person – of course they’re dependent but it’s not until the adoption is formalised that they become or they are considered under law as your child – so it might be a good idea to re-visit that just pending the finalisation of the adoption proceedings.

DK        Yes all right – great advice – Graham on the Sunshine Coast.

Caller No 2 – Graham

DK        Gee – Wills do bring up all sorts of conflicts in families but what’s happened in your situation Graham?

Graham           Oh hi Deb. Look – my question is about my brother – he was excluded from the Will about 30 years ago and the Will has been written since my dad passed on and my mother has been put into care. Now, my sister and myself are the only ones who are included in the Will and I’m just wondering whether here is a claim available – a process for my brother to claim?

DK        So that brother has been excluded – good question Graham.

KM        Graham – may I ask are you referring to your mum’s Will who is in the home now?

Graham  Yes – Mum’s Will.

KM        At such time in the future that mum passes away, as a child, your brother would be automatically eligible to make a claim, but of course there’s a whole range of other factors, the size of the Estate – your brother’s financial need and circumstances and so it’s very much at the time of making the claim – all of those factors are looked at by the Court.

Graham  Right – and would his behaviour be taken into account because he has been incredibly abusive over the years.

KM        Most certainly it would be – that’s an important factor and you see a lot of cases where there’s not only estrangement between child and parent but there has been hostile behaviour from the child to the parent which of course has a significant effect of the Court’s determination.

DK        Yes – it’s a good point to make. Paul – you’ve got a good question too for Kyle – Hi – How are you?

Caller No 3 – Paul

Paul       Yes – good afternoon Debra. The question is, I want to appoint my 15 year old son as an executor but he is not of age to do so at this stage, so what should I do in the interim to have someone oversee – my wishes as written down in my Will – but he’s under age – he’s only 15 and he’s got a 3 year window before he becomes legal to be the executor as such.

KM        Do you have a Will at the moment Sir?

Paul       No – I’m in the process of putting that together at the moment – yes.

KM        All right well – so an executor needs to be over the age of 18 years and have the capacity to act in that role…….

Paul       All right.

KM        I suggest that you probably should consider a trusted friend or family member to step into that role because if anything was to happen to you prior to your son turning 18 years of age, any part of your Estate which you give to your son would need to be held on Trust and managed accordingly for the benefit of your son when he reaches the age of 18 years.

DK        All right – so look for a trusted friend or family member. Good advice. Lots of calls – we’ve got a full board – I want to get to as many as we can. We will take a short break and we will be back with more Legal Matters right after this.

DK        Deborah Knight with you on Afternoons and I tell you what we’ve got a full board of calls for our Tuesday Legal Matters – we are talking Wills and a lot of you are interested in this – so I will try and get to as many calls as quickly as I can. Dorothy is with us in Campbelltown. What’s your question for Kyle Dorothy?

Caller 5 – Dorothy

Dorothy Just wanted to know how often you should change your Will please?

KM        Dorothy – I’d say every time your circumstances change – I mean that is a probably quite a general answer, but if you have children – if you get divorced – if you acquire different sort of property, it’s probably a good idea to revisit it and see if your Will needs updating.

DK        Okay – so whenever your circumstances change, include your Will in that – Michael – this is interesting. What’s your question?

Caller 6 – Michael

Michael  Yes hi – Can you tell me if someone leaves funeral directions in a Will, are they binding and enforceable?

KM        Generally in terms of I suppose disposal of a body when someone passes away if the responsibility of your executor. Quite often if family members will just go ahead and arrange a funeral and things but you’re executor has a responsibility to administer your Estate, which includes making arrangements for funeral or burial or cremation and should always, you know, do their utmost to honour your wishes in your Will. It’s a bit of a complex matter because if you get to a point where the funeral has already been arranged and carried out – it may be at a stage where your Will hasn’t even been looked at. So it’s a good idea to go over those matters with your family and with your executor prior to anything happening.

DK        Yes – get those details right. Good question there. Anne in Heathcote. What did you want to know regarding Wills?

Caller 6 – Anne

Anne      I just want to know if – can you put a footnote at the end of your Will, that whoever contests your Will, will not get anything?

KM        The short answer – well you can put whatever you like in your Will – but the short answer is if the person is eligible to contest the Will or make a claim – say for example a child is automatically eligible, that will be of no legal effect and it won’t affect their rights under the law to make a claim under on your Estate.

Anne      Oh damn………okay thank you.

DK        Thank you Anne for the question. Kathy in Kogarah Bay. What did you want to know?

Caller 7 – Kathy

Kathy    I’d like to know if I can attach a Codicil to my Will and would it be legal to do that instead of changing my Will?

DK        What is a Codicil?

KM        A Codicil is an amendment to your Will – so it’s where there might be a minor change if it’s a change of an executor or if the person you’ve previously appointed has passed away, you need to substitute someone else in there – you can made a Codicil which is generally signed by the Will-maker and witnessed in the same way by two (2) people as the Will itself is/

DK        So updating it rather than re-doing the whole thing?

KM        That’s right – but if there’s significant changes in your Will, then generally a Codicil would be ill-advised – and it’s just better to just make a new Will.

DK        So if you’ve just got some minor tweaks – yes – but big changes no. I hope that helps Kathy.

Kathy    Excellent. Thank you very much. Bye Bye.

DK        All right – Wonderful.  Judy – This is an interesting one too from you in Brisbane –Hi.

DK        Hello Judy – are you there? – Sorry Judy in East Ryde – there you are.

Caller 8 – Judy

Judy       Hello

DK        Hi.

Judy       Hi – okay so when I did my Will, I am not divorced from my ex-partner. It was done by the Public Trustee here in Brisbane and they said to place with my Will a letter which basically states our household has been separated now and it is now 11 years – so, that basically he has no claim on my Estate.

DK        All right. So if you’ve got a letter saying that you separated and you can’t claim.

KM        When you say you’ve got the letter and you’ve made a Will, in that Will is your estranged husband still the primary beneficiary?

Judy       No – no. So the Will was made after – so I did a Will, an Advanced Health Directive and Power of Attorney – all placing my older children as the executors – he was never and never has been any Will with him mentioned.

KM        All right – so I mean that sounds like the correct advice – perhaps you could also write out a statement of all your circumstances, when you were estranged, the history of your relationship because even though you’re still legally married to that man, it is possible that he could bring a claim against your Estate and that Will as your husband.

DK        All right hope that helps Judy – And we will go to the other Judy in East Ryde – are you there Judy?

Caller 9 – Judy

Judy       Yes – yes. Hi Deb. What was your question? The two witnesses to my Will – one is dead and one’s moved interstate and I was just wondering do I have to make another Will?

KM        The short answer is “no” you don’t. It is still a valid Will as long as those two persons were alive and with you in the same room when you signed the Will – it is a valid Will.

Judy       Yes – Yes – oh good – thank you very much.

DK        Thank you Judy and thank you to all of your calls – we might revisit this topic again – it’s a popular one – lots of you are calling in with questions on Wills and of course if you want information – Turner Freeman is the place to go – Kyle McCabe who is our specialist in Wills and Estates – thank you so much for coming in Kyle. I think we will have to revisit it – we have got many many unanswered questions here – but Turner Freeman Lawyers is the place to go to – They’ve got specialist legal services, compensation and negligence law, asbestos litigation, superannuation and disability claims as well, Wills and Estates and property law – and I will I think on another Tuesday revisit the topic of Wills.  Thank you for all of your calls.  131 873 is my number. We will take a short break and return with some sad news. We are hearing of the death of the inaugural coach of the Canberra Raiders. I’ll bring you that information next.