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Kyle McCabe on the 2GB Deborah Knight Afternoon Show discussing Wills & Estates 1 June 2021

Kyle McCabe providing Q & A on the 2GB Deborah Knight Afternoon Show discussing Wills & Estates 1 June 2021


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


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Read the Transcript below:

DK      And it’s our regular Tuesday catch up. Legal Matters with Turner Freeman Lawyers, always popular this topic, wills and estates, you might have had trouble with a family member’s will or maybe you’re not sure how to divide up your own estate to prepare your own will. Get in contact, the open line number  131 873. We’ve got our $100 Westfield voucher for the best call and Kyle McCabe, Special Counsel and wills expert from Turner Freeman is on the line for us now. Kyle welcome to Afternoons, I hope you’re ready we’ve already got a stack of calls through, people are very interested in this segment.

KM     G’day Deb, thanks for having me.

DK      I want to start before we get to some of the questions about this story that was on A Current Affair recently, a man claims his friends have stolen his dog, because they made it famous on Instagram, when it comes to a will what happens with disputes over pets?

KM     Well to be quite honest with you Deb, the disputes that are seen in courts relating to wills are primarily commercially based and it’s all about the money, but an often overlooked item of your belongings when you’re making a will is your pet that you might have. I mean pets aren’t considered, don’t have the same legal standing that a human being does under the law.

DK      Even though people see them as extended parts of the family.

KM     Exactly right but it’s often a very important thing for a lot of people, you need to consider who might look after your pets when the time comes that you pass away and there often needs to be some allowance for leaving some money to make sure that the person that you are leaving your pet with can look after that pet.

DK      Yeah, it’s a good thing to take into consideration. Jane has got a question for us, the first of many calls coming through on this, if you’ve got a query, 131 873. Jane what did you want to know from Kyle today?

Caller No 1     Jane

C1       Hi, thanks for taking my call, I’d like to know, I was married for 30 years, got divorced and then 4 years later we’ve been back together for 5 years. On the will it’s left to his wife but I’m actually not his wife but we’ve been back together for 5 years and the will was with the Public Trust years and years ago.

DK      Does Jane need to change any of the details there Kyle?

KM     Thanks for the question Jane. I think it would be a very good idea if you both went and made new wills, the effect of, so if the will was made prior to when you were divorced the effect of the divorce is that it revokes any gifts which are made to that former spouse, even though you’ve got back together and you may well indeed be considered a defacto spouse that the moment, you may have some issues with that will and I think the best thing to do to avoid any doubt or complications if anything was to happen to either of you would be to make fresh wills.

DK      Yeah, just get that, all the I’s dotted and all the T’s crossed to make sure it’s legit and up to date, always a good thing to do with a change of circumstances. Ralph’s got a question as well. G’day Ralph.

Caller No 2     Ralph

C2       G’day, good afternoon Deb and Kyle. I have, my mother passed away a while back and I was an executor, one of the executors and I never got to see the will. So I was wondering is there anywhere where I can, is it stored somewhere? Can I get a copy of it?

DK      Is that unusual Kyle for the executor of a will not to actually see it?

KM     Quite often it is, Ralph may I ask, was your father alive when mum passed away?

C2       No, he passed away 13 years before she did.

KM     Right, now when someone, and I’m not sure of mum’s circumstances, but if she had assets and by that I mean real estate or perhaps a nursing home bond or money in the bank account above you know a certain amount, there’s generally a requirement to deal with those assets that the executors of a will obtain a grant of probate. Now if indeed mum didn’t have any assets or assets that would warrant getting a grant of probate from the court, it may be that the will was never sort of utilised or dealt with and the assets may have just been personal affects that were dealt with by the family, but by all means could look into some more for you to find out what exactly happened.

DK      Stay on the line Ralph, we’ll put you in touch with Kyle to investigate that further. Carmel you’ve got a query about a bank account?

Caller No 3     Carmel

C3       Yes that’s right. Thank you for taking my call. A husband and wife have joint bank accounts, do the accounts go into the estate, do you have to take out probate because…

KM     Of course, when bank accounts are joint, there is no requirement for a grant of probate and generally speaking it’s just a matter of taking in a death certificate into or a certified copy into your local bank branch and then they will quite often deal with that on the spot and transfer the joint account just into the surviving account holder’s name.

C3       Right yeah, but the National Bank, okay good thanks for that.

DK      Thank you Carmel, thank you for calling in. We might take a quick break, lots of calls still coming through if you’ve got a question, Kyle McCabe is with us from Turner Freeman Lawyers, we’re talking wills and estates. Another case Kyle that’s in the news this week, this pharmacist, a 65 year old pharmacist who passed away in Sydney, a local man claimed to be in a relationship with him to be eligible for some of the estate and it’s a pretty healthy estate, $6 million worth, how often do you see secret relationships come out of the woodwork when someone passes away?

KM     Well that’s a good question Deb. Look this case was quite interesting because the gentleman claimed that he was in a 14 year secretive same sex relationship with the pharmacist. In the end what it came down to was that this gentleman was not eligible to make a claim on the estate so while there was alleged secretive relationship, it was found that he was never living together with the pharmacist and so there may have been rendezvous , you know two or three times a week for 5 or 6 hours at a time.

DK      And he’d married twice in that time, as a former police officer and he’s also been found guilty of fraud over those claims.

KM     Exactly right, and there were hundreds of thousands of dollars which were taken out of the deceased’s bank account on the day of death and so all of that put together I don’t think helped this claim and in the end he made his claim, the deceased died quite a few years ago and then he appealed that decision and just earlier this year the Court of Appeal threw out that appeal as well.

DK      Yeah it was an interesting case, that is for sure. Peter’s got a question regarding a holiday home. G’day Peter.

Caller No 4     Peter

C4       G’day how are you Deborah?

DK      Well thank you.

C4       Myself and my wife we have a holiday house up on the mid-north coast and we have 4 children. We’re upgrading our will from about 20 years ago, I was wondering if I was able to leave that holiday house in a trust fund to be kept and not sold for a period of say 10 years? So that they can enjoy it.

KM     Generally speaking yes, peter when you say it’s a holiday house I presume it’s just ordinary real property, it’s not sort of in a caravan park ot any of that sort of lease hold land and it’s in its own right, it’s a property which you can buy and sell. You can do that certainly, you can say you can request that the property not be sold and it be left for the benefit of the children however there is always the possibility that if those children says that they need money and that they want the house sold then it would leave it open for an application to be made to the court but by all means as things stand you can make that request in your will.

DK      Alright, so do factor that in with your updating. Maria what did you want to know from Kyle today?

Caller No 5     Maria 

C5       Hi Deborah and Kyle. I’ve got a will and my husband he was the executor and he passed away and then everything goes to the kids. Do I need to make another will?

KM     Good question Maria. Ordinarily and you may not have this in your current will, but quite often it’s a good idea to have substitute executors in your will. So if your principle executor has passed away or is unable to act in that capacity then the substitute executors will take over. Now just because your executor and if you just solely appointed your husband who has passed away isn’t there to administer your estate, that doesn’t make the will invalid but it does add some complication to administering your estate in the future at such time that you pass away, so it might be a good idea to take that along to a solicitor, we’d be happy to have a look at it, and just make sure that you don’t need to update it so the kids don’t have any difficulties.

DK      Alright there you go, Maria.  Sue, this is a good question I think a lot of people wonder about, what was your query for Kyle?

Caller No 6     Sue

C6       Okay, it’s a power of attorney, I’m filling out a form and I’ve got my power of attorney and so we fill it out in front of a JP, sign it blah, blah, blah and do we have to take it to a solicitor or anything to validate it?

KM     Now, Sue may I ask where about are you, are you in New South Wales?

C6       No, I’m in Queensland unfortunately

KM     So things do work a little bit differently up there, as I understand it, powers of attorney in Queensland don’t necessarily have to be witnessed or verified by a solicitor like they do in Western Australia but it would be a good idea and what something you could do just to double check that, is call the Public Trustee up in Queensland and they’ll be able to give you a bit of guidance as to what is required.

DK      Alright give them a call. Stewart, credit card bills, what happens when they die? I’d like to know that myself. Kyle, put your question to Kyle.

Caller No 7     Stewart

C7       Yeah g’day guys. I’m just enquiring because I have a terminal illness, I was diagnosed two years ago. I was on a credit card bill of which I pay every fortnight and I pay above the required rate. I’m just enquiring if I pass away with any debt on that credit card, what happens to that debt? Everything in my will is left to my wife which is the house etc.

KM     Well Stewart, if you’ve got a credit card debt at the time you pass away, it does form a debt of your estate, it’s an unsecured debt, not like a mortgage which might be secured against a specific property but it is a debt which should be paid if your assets has enough assets to do that. Of course if, I mean that goes for most debts, but if you don’t have sufficient assets in your estate to pay all of your debts well then it comes down to the order of priority but generally speaking if you’ve got money in the bank and you’ve got property and things like that, then the credit card debt will form a debt of your estate.

DK      Alright we wish you all the best in your health battle Stewart. And Allen on the text line is wondering what’s the level of assets in an estate that requires a deed of probate?

KM     So generally speaking, if you own any real property, so any real estate, at least in New South Wales, you require a grant of probate from the Supreme Court. Bank accounts are little bit I suppose trickier, because it depends on the individual financial institution as to whether they will deal with the assets, it’s probably rule of thumb is about $50,000 in the bank but motor vehicles and things like that ordinarily you don’t need a grant of probate and in any joint assets of course that will automatically transfer.

DK      Well as predicted time is against us and we can’t take the remaining calls, we’ll deal with this topic again in the future. Kyle thanks so much for joining us.

KM     Thanks very much Deb.

DK      Kyle McCabe there and Turner Freeman Lawyers they give a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claim, employment law, wills and estates and property law. Search or call 13 43 63 and our gift card, our $100 voucher goes to Jane from Randwick who divorced after 30 years and got back together with her husband.


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