Legal matters with Turner Freeman Unfair Wills Claims

Tuesday, April 24th 2017 

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CS – Chris Smith/JM – John Mann /C1,2,3, etc – Callers 

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Announcer     And now, Legal Matters with Turner Freeman Lawyers: great people; great results; great value.

CS       Yes it’s that time again, free legal advice time in our Legal Matters segment; we’re talking about wills and estate law today specifically when it comes to contesting and challenging a will and thanks to Turner Freeman Lawyers and their Legal Matters segment, I’ve got a $100 Westfield voucher to give away once again. So that will go to one of our callers between now and the top of the hour and don’t forget Turner Freeman Lawyers provide a range of specialised legal services including compensation  and negligence law, asbestos litigation, superannuation and disability claims, family and employment law Wills and estate. Their New South Wales offices are in:  Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong and their Queensland offices in Cairns, Ipswich, Logan, Maroochydore, Northlakes, Southport and Toowoomba. If you’ve got a legal question, the number is 131 873. My advice though is, get in as early as you can because quite often we get to the end of the segment, run out of time and there are people who haven’t been able to get to air. Now, John Mann is an accredited specialist in wills and estates law and property law; he’s based at Turner Freeman’s Penrith office but he also sees clients at Windsor and Gloucester and he joins me in the studio. I hope you didn’t come from Gloucester today John.

JM      No not today.

CS       Not today? Is there a difference between contesting a will and actually challenging a will? Is there a difference?

JM      Yes there can be. We have a situation where the validity of the will itself might be challenged because the person who made it may not of had the capacity or didn’t know or understand what it was they were signing as opposed to where we have a valid will but that will may not make proper provisions for a person that ordinarily the law says a person should consider when they’re making their will.

CS       Right.

JM      But that does also apply when there is no will depending on where the estate devolves.

CS       Right and can anyone challenge or contest a will?

JM      No. The classes of who can challenge are quite limited, broadly speaking they are: spouses, of both gender, children, former spouses, people who have been part of your household and dependent for financial support or grandchildren who have been dependent for financial support such as grandchildren who were brought up by their grandparents and people who might be called a close personal carer but on a voluntary basis not on a paid basis.

CS       Not on a paid basis? So someone who was a next door neighbour, they could contest a will.

JM      Possibly, depending on how close they are.

CS       Okay let’s get to callers, Glen, go right ahead, John is listening.

C1       How are you John and Chris?

CS       I’m alright.

JM      G’day.

C1       Mate, I’m just going through a will sort of thing with my mother, she died last year. I’m a beneficiary of the estate, what I want to know, and I have asked the solicitor that’s dealing with it, what I am entitled to?

CS       Glen?

JM      I think we’ve broken up.

CS       That’s not a good start, Glen. I think you need a new phone by the sound of it, that’s the first thing you need to do before you attempt to tackle these challenges. 131 873 is the telephone number. Barbara, how good is your phone?

C2       It’s wonderful, it’s lightening Chris.

CS       It’s clear as crystal, go ahead.

C2       Hi John, hi Chris, hope you’re having a good day.

CS       Thank you.

JM      G’day.

C2       I’ve never taken out a will before. I’ve been on my own for quite a long time and I’ve always left everything to my son. He’s taken over the house because I was injured at work and I cannot work anymore and I forget what my mate said it was but it was like a will that you’ve got to take out and if you don’t take one out, they, the government can claim some of the stuff from you.

JM      No, not necessarily. Where you don’t have a will, the lawyers call it an intestacy. Now, the government has set out rules that what your bloodline and what your blood relatives are called your next of kin. Now if you have a living son, if something were to happen to you and you didn’t have a will, nonetheless your son would inherit your estate in the absence of any other person who might put their hand up but if he’s your only blood relation, that’s what will happen. It won’t go to the government it only goes to the government right at the end if you get past relatives as distant as cousins.

C2        Oh okay.

JM       Okay?

C2       Yeah that’s wonderful, thank you so much.

CS       Thank you very much for the question. Jack’s got an interesting question, go ahead Jack.

C3       Yeah, hi.

CS       Hi.

C3       I’m moving over to the UK with my wife sometime next year. We both have a will that is to each other so anything I have would go to my wife and vice versa. We were told that if we were going to live overseas, we would need something like an international will, is that the case?

JM      Not necessarily an international will but you need to be careful about where you are because there are different legal systems. Ordinarily, an Australian will, would get recognition in the United Kingdom because we’re about of the old British Empire but it is wise to get advice and make a will in a place, even like England, because there are very, very significant death duties in England and that might be a factor on the distribution of your estate, not necessarily between yourself and your partner but more so but more remote than that.

C3       Right, okay, well that answered that question.

CS       Good on you Jack, thank you for your question. Barry, hi.

C4       Yeah good morning, John.

JM       G’day.

C4       My question is, for your advice on my prospects of being successful in challenging my uncle’s will. I’m a beneficiary and I’d like to think that I could successfully challenge the will on the basis of lack of capacity or testamentary capacity at the time he made the will based on the fact that his capacity has been ruled on by the Queensland QPAC at a tribunal here in Queensland and also to medical reports from a neuropsychologist clearly setting out that my uncle had lost capacity.

CS       That’s an interesting question, where you’re looking to challenge that validity of the will itself, litigation of that sort is called interest litigation. Now the first question is that if your uncle’s present will is knocked out, where do you stand? Are you in beneficiary in a prior will?

C4       Yes, I’ve been a beneficiary in a number of wills. He was a prolific will maker.

JM      Well then, you wonder why. So I take it you’re excluded or your entitlement is?

C4       No I haven’t been excluded at all, my standings in the will stand the same for many, many years.

JM      Why then would you want to claim or make any claim on the validity of the last will is you don’t benefit by it?

C4       Well I do benefit, to the tune of about $15,000 but most people won’t accept this, but it’s not about the money, it’s just about that I don’t think the right thing has been done by the solicitor because he has ignored all the medical opinions, and indeed ignored the QPAC finding and made a will, a codicil to the will one month after QPAC ruled that he didn’t have capacity.

JM      Well that again is another interesting question because in New South Wales, the question of capacity doesn’t necessarily mean a person who might have a diagnosis of say dementia or something of that sort, the test of the validity of a capacity in New South Wales is based on an anguish decision of the 19^th century and people who have dementia may on occasions, still have capacity to make a will, provided that they can fulfil that test. Now that test is: if they recognise what a will is, if they recognise what their property is, if they recognise the people that have a corn on them and they’re not suffering from any delusion for example “mums out the back building a death ray” or something like that, then they have capacity to make a will, not withstand then they might have some mental condition. So they fact that they might have been assessed on act or seem as dependent or whatever else, does not necessarily conclusive.

C4       So could we go to the solicitor’s testamentary capacity test of the client versus that of the neuropsychologist who I understand is the relevant medical specialty to make such assessments?

JM      Well the solicitor is entitled to assume that the person has got capacity unless there is something particular when the solicitor sits there and makes the decision, that again is not necessarily conclusive that he doesn’t have that capacity, certainly you’re entitled to a case if you want to on that basis but I just wonder the advantage to you if you get this will knocked out.

CS       Alright Barry, I’ve got to leave it there, we’ve got a stack of people wanting to get on and get their questions answered and it sounds as if you’ve got to get some decent advice on that score. It is a quarter to 2pm, a quarter to 1pm in Queensland; we’ll take a break and back to your questions. Yes, I’ve still got that $100 Westfield voucher to give away, we’re talking wills and estate law, John Mann – accredited specialist with Turner Freeman, let’s get back to the questions. Bob, go right ahead.

C5       Ah yes, good afternoon.

CS       Afternoon.

JM      Hello.

C5       I come from divorced parents and my father and mother have two children and then got divorced and my father remarried and had two more children. My father died about eight years ago and on his death bed, he made me a promise not to contest his will and he said that he left everything to his second wife and we’d be taken care of in the event when she dies, is it possible for her to have changed her will?

JM      Well of course.

C5       Or have changed his will?

JM      Of course, you can make a new will every day of the week, whoever you are. It’s just that sometimes you if might have made a promise to somebody to make the will a certain way and you don’t do it then the courts may be able to enforce that promise but we have testamentary freedom in this state where you can make a new will every day of the week.

C5       Okay so in the event that his second wife dies, and nothing has been left to the two first children, just the two second children, would we have grounds to contest that will?

JM      Highly unlikely unless of course when he married her, you were partly brought up by her or as I said at the beginning of the program, a member of the same household that she was a member of and dependent on her for financial support

CS       Otherwise no.

C5       Okay thanks very much.

CS       Alright Bob, thanks very much for your call. Margaret on line nine, has got a really good question. Go ahead Margaret.

C6       Oh hi, how are we all?

CS       Very well.

JM      Good thank you.

C6       Yeah good. I’m probably talking to the wrong people but I have a will, I’ve left what I’ve got to my three sons. Now what’s left of my super will go into my estate, so I’m just wondering, do the kids have to pay tax on any money they get from the sale of my house and my assets and my super?

JM      Well that’s a very complicated question.

C6       Oh is it?

JM      We’ll deal with it in turn. Well with your super, I assume your sons are adults?

C6       Yes they are.

JM      Yes, a portion of the benefit of the super will be taxable but what rates and amounts I can’t tell you precisely but that will be taxable. Your home.

C6       So only the super part of it will be taxable?

CS       Well that’s right, there will still be some tax to be paid because they are not concessional beneficiaries of your super, and they’re not dependants.

C6       No they’ve got their own kids.

JM      Now, with your home the situations more complicated but I’m assuming it’s your home, that’s your place of residence, you’ve only got one?

C6       Yeah.

JM      When they come to sell your house, they have a two year opportunity to sell it free of capital gain tax. If it’s sold outside that time, capital gain tax will be payable and the tax will be calculated between the difference between the value of your home when you died and what it was when you sold it and that would be under present law divided by two, and split up amongst your sons and each would have to add a capital gain tax return for the year they sold the house in but if they do it within two years and it’s an exempts CGTS in your hands, then they don’t pay any tax.

C6       Thank you so much.

CS       Good on you Margret, thank you very much. John Mann – otherwise known as our accountant expert as well. You’ve got to be over all that stuff don’t you.

JM      Yeah you do.

CS       131 873, Adam go right ahead.

C7       Yeah hi, John and Chris.

CS       Hi.

C7       You half answered my question with that lady thank you. I’m a third beneficiary in an estate that will be split three ways of a house. My aunty is one of the other beneficiaries and I want to leave my third, I want her to live in it as long as she needs now what implications will I have doing that? Do I need to transfer it to my name and will I have to pay tax or do I need to pay rent?

JM      Sorry I’m not quite clear on that, you’re going to inherit a home or one third of a home.

C7       A third of a home and my aunty lives in it as it is and she is a third inheritor as well.

JM      Who owns the remaining third?

C7       Another aunty.

JM      Okay well, where you’ve got joint ownership of property either expectancy under the will when it’s being administered or it’s being transferred to the three of you, there are rights of joint owners to force a sale if they see fit so it would be a matter of agreement between the three of you to allow your aunt to stay there. Providing you can agree, that’s not an issue but you must remember, when the property comes to you, it would have subject to that two year CGT exemption. If your aunt stays in the place longer than that, you are going to have to pay some capital gains tax when that interest comes to an end.

C7       Okay excellent but I don’t need to get rent or any financial benefits from it.

JM      No.

C7       Okay sweet.

JM      Purely a matter of agreement between yourself and your other aunt.

C6       Excellent, thank you very much for your help, have a good day.

CS       Thank you, 131 873. Darius, go right ahead.

C8       Oh g’day Chris.

CS       Hi.

C8       I’ve got three kids, I’m divorced and I don’t have a will. Now I’m about to travel overseas where I have bought some property; I’ve also got some materials which I have written which is publishable and potentially got revenue. I don’t know where to go because it’s overseas. Is there anything different here than overseas?

CS       Good question, first of all you’ve got the $100 Westfield Voucher, Darius.

C8       Thankyou.

CS       Well done, go on John.

JM      Well, the question is where overseas? Where is it? Where’s the property?

C8        Oh it’s in the Baltic States. It’s not that I’m being cagey about it, I just don’t want anybody to know what I’m doing. Well it is a part of the European Union and I have been able to buy the property under an Australian Passport.

JM      It’s pretty much essential that you make a will in any Balkan country according to their laws because the laws there could be completely different to New South Wales. That’s the most important thing you could do.

C8       I’ve got superannuation and other assets here, do I need one in both countries?

JM      Well you’re going to need two wills, you have a New South Wales will and a Balkan will. I recommend you speak to the law society because they have records of solicitors who are conversant in other country’s laws.

C8       Okay.

JM      So you might be able to find a solicitor in New South Wales who has some expertise in Balkan’s law who could draw a will for you here, it still has to accord with that law overseas but you may have two.

C8       Well it’s not the Balkans, it’s the Baltics.

JM      The Baltic’s?

C8       The Baltic’s, yeah there is a number of little countries there, I’m just one of those little countries.

CS       Well stay there Darius, we’ve got to get you that $100 Westfield voucher before you head over back to the Baltic countries and as John said get a hold of the law society who could put you in touch with the right lawyer to get yourself a second will, an overseas will. That’s an interesting question and something that people should be aware of. John thank you very much for your time.

JM      Thank you, Chris.

CS       John Mann from Turner Freeman.