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Home | Q & A on 2GB discussing Wills & Estate Law 11/2/14

Problems of not having a legally valid will

Tuesday, 11 February 2014

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LG – Luke Grant/BB – Brian Barlow/C1,2,3 etc– Callers

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LG      Indeed our legal matters segment with our sponsors Turner Freeman, this week we are covering one of our most popular areas Wills & Estates, I’ve got Brian Barlow who specialises in Wills & Estates for Turner Freeman in the Studio with me now, so if you’ve got a question for Brian, jump on the open line 131873, hop in the queue now 131873, Brian good afternoon

BB       Good afternoon Luke, how are you

LG      I’m well, lovely to see you.  How big is this area Wills & Estates, because as I mentioned there, every time we have someone like you in here talking about this, there seems to be a million calls, so is it because Wills aren’t done properly, because families are complicated, why does it become such a big issue for so many people.

BB       Yeah I think probably the biggest increase is families have became a little bit more complicated.

LG      Right

BB       In the old days, it was husbands, wife’s and children.  Where as these days we have multiple spouses, children of second marriages and that sort of tendered to make things a little bit more complicated.

LG      Ok, now you’ve got an interesting case that highlights the problems that can come with not having a Will at all.  Can you walk us through that.

BB       Yes, Luke I was chatting to a colleague who is acting in an Estate where a woman had never married, she had no children, she was not living in a de facto relationship, her parents were deceased, she had no brothers and sisters, so essentially under the Succession Act, there is a line of intestates, however her mother’s relatives are, her brothers and sisters are deceased but they have children, so those children will inherit, but on the father’s side he was a Russian immigrant and there is talk that he had children in pre-revolution Russia, and so trying to establish those children, records don’t exist before 1917 apparently in Russia and its a matter of trying to convince the Probate Court here as to how the Estate is going to be distributed.

LG      How do you go convincing the Probate Court?

BB       Well it’s a matter of evidence, what evidence you can get from people.

LG      But if there is no official records, a series of letters, what sort of

BB       Yeah, it could be, doesn’t necessarily have to be evidence in the legal sense,

LG      Ok

BB       It can be statements or letters or old photographs perhaps that might assist, but ultimately it just shows you the importance of having a Will and all of that could have been avoided, for a relatively minor cost of having a valid Will.

LG      131873 is the number and we are talking Wills & Estate today and joining us from Turner Freeman, Brian Barlow, he is the expert in the chair today and Brian we have got Diane on the line first, hello Diane

C1       Hello, how are you

LG      We’re all well, what do you want to ask

C1       My dad is in a nursing home, he has dementia, but before he went in there, he wrote a Will out and he got it signed just by a couple of JPs.  Well somebody has taken the Will, so now there is no Will and my brother seems to think, because he is the eldest, he is going to get every thing, even though Dad doesn’t have much money.

BB       Yes, Diane is there a copy of the Will around or

C1       No, no

BB       And can you get evidence that he actually wrote a Will

C1       Oh no, only from other family members would have seen it.

BB       Oh Ok, I guess the biggest lynch pin would be that those couple of witnesses that have allegedly witnessed the Will, because

C1       Oh they were just a couple of JPs he found at the RSL,

BB       Well they don’t have to be JPs.  Any adult person can witness a Will, so it doesn’t any more veracity to the Will just because they’re JPs, but the fact that it would appear as though there was a Will and that it was witnessed perhaps can be brought into account by other sort of evidence rather than the physical Will itself.

C1       If something happens to Dad, does it automatically go to Mum.

BB       Well under the Succession Act it depends if he left a valid Will, if there was no valid Will then it would pass under the Laws of Intestates and if your Mum was the only spouse then, she would basically inherit the Estate.

C1       My doctor was telling me, Mum’s doctor was telling me that, because someone has taken the Will, he says you can write out another Will and you get Dad’s fingerprint put on it even though he has dementia and he is in a nursing home.

BB       No, no the problem with that Diane, is you have got to have capacity to make a Will and without capacity, the Will in all likelihood wouldn’t be valid, so if somebody is truly demented, then I would very much doubt that that person had capacity even though dementia of course comes in all stages and forms.

LG      Alright Diane, we will leave it there, I appreciate your call, good luck.  Steve, your next, good afternoon

C2       G’day, how you going.

LG      We’re well mate

C2       That’s good

BB       Hi Steve

C2       Hi, G’day, I just wanted to ask the question, my mother passed away 3 months before Bankruptcy and the Grant of Probate wasn’t done until December.  How do I stand with regards to the portion of the inheritance.

BB       So, sorry Steve, you’re Bankrupt are you?

C2       Well I was a Bankrupt.

BB       Was your period of Bankruptcy during the period.

C2       Yeah

BB       It’s pretty important to get the dates happening here

C2       It was 3 months before.

BB       And were you still Bankrupt

C2       Yeah

BB       You were. Will on that basis then you would have to disclose your inheritance under the Will to your Trustee in Bankruptcy, and it maybe that the Trustee may seek to call in the asset that your entitled to.

C2       Yeah, may seek or will

BB       Well, look there is nothing definite in this, it’s on the individual circumstance.  As I said it would be dependent very much on timing, but if you were still Bankrupt at the time of your mother’s death, then I’ve had various cases where the Trustee has called in the asset that your entitled to.

C2       Yeah, but the assets weren’t vested.

BB       Well, that’s not the issue, it’s whether or not they’ve been vested or not.

C2       Yep

BB       It’s certainly a factor, but it’s more the date of death and the entitlement, which is important.

LG      Just explain for those you aren’t across it, ah “vested”, what did you mean by that

BB       Vested means when a beneficiary becomes entitled to receive the asset, so at the date of death, of course there might be a house and that hasn’t sold yet, so there not actually, the asset hasn’t vested in the beneficiary at that point.

LG      OK, sounds like a complicated area.

BB       Look, Bankruptcy and Wills & Estates is quite complicated.

LG      131873 is the open line number, 2GB.com, click on feedback, we are with Brian Barlow from Turner Freeman, we are talking Wills & Estates and we’ll get back to callers, now June, G’day

LG      June are you there?

C3       Yes can you hear me

LG      Yes we can, go ahead

C3       Sorry, first of all I want to say how important it is for people to have a Will, you have no idea what happens when you die without a Will.  My sister died, just before Christmas last year and her superannuation was bequeathed to me, all her super.  And I can’t get access to any of that super until the Crown Coroner has released his report on the autopsy and I’ve been told that it would take probably at least 18 months.

BB       Yes, well June of course the other issue, when you say you were bequeathed your sister’s superannuation, are you saying that, that you were the nominated beneficiary or was specifically

C3       Yes, that’s right, I was nominated.

BB       Of course its the Trustee of the superannuation fund that determines who they pay the superannuation to and it may be that they would look at the dependency issue, so if your sister had dependents, then the Trustee of the fund would want to seek either declaration from those dependents that they were seeking a share of the superannuation.  so its not a cut and dried area, it certainly at the discretion of the Trustee of the fund.

LG      So, what is June do next

BB       Well in terms, June cooperates with the fund, certainly.  I don’t know what the issue is with the Crown Coroner, but I take it that means, something to do with the cause of death, perhaps is it June,

LG      Is that right June?

C3       Yes, she had to have an autopsy because she died of a stroke and a heart attack.  All we’ve got so far is the death certificate but I did contact the superannuation people and they said they needed to get the autopsy results, and until that comes, none of the money will be released.

BB       No, and that certainly is a preliminary matter, but certainly its still at the Trustees discretion as to who they are going to pay the superannuation to.

LG      Alright, legal matters today with Brian Barlow from Turner Freeman, we’re talking Wills & Estates, on that number 131873, a break now, twelve to two.

LG      And its great to have your company here on a Tuesday afternoon, back to legal matters in a moment, I’m sure Geoffrey for our listeners in Sydney will cover this off for you in a moment or too, but motorist travelling West through the Lane Cove Tunnel in North Ryde are experiencing significant delays due to a multi vehicle accident just passed the tunnel exist, 1 of 3 west bound lanes closed.  Traffic is already very heavy there so, give yourself some extra time.  Geoffrey will have more on that in a moment or too.  Legal matters thanks to Turner Freeman, Brian Barlow, talking Wills & Estates, plenty of calls here, Brian lets get back to them, Belinda is next, Belinda good afternoon, what was your question fro Brian Barlow?

C4       Hi I just wanted to ask, I’m a single mum and I’ve been thinking about getting a Will because if something was to happen to me, I didn’t want my little one to be going to live with his father full-time.  Does it hold up in Court, if I put my mother in charge of him or something like that or would he automatically go to his father?

BB       Well, look that is a fairly general question Belinda, but at the end of the day, what you put in your Will is in a sense outside the Family Law Act, because obviously you and the father have equal rights unless the Court orders otherwise.  So if you if you, lets say you had a residence order and you died then, normally the father’s rights would come in and so notwithstanding that you’d appointed presumably your mother as guardian in the Will, the father’s rights would desert that, having said that of course, is the Family Court can make any orders that’s in the best interest of the children.

LG      Alright, we’ll leave it there, Belinda thank you, Stephen your next

C5       Hi, you going

LG      We’re good mate, go ahead

C5       Look I’m just wondering if there is a central place you can lodge Wills or anything else, and if not why there isn’t, somewhere like births, deaths & marriages, where they can be lodged?

BB       Yes Stephen, look there was a Wills register operating and I recently looked at the issue and it seems as thought the register has in a sense been deregistered.  It seems to make sense and people often say that there should be a Wills register through births, deaths and marriages, it attempted to get up and running, but it has fallen by the way side.  I think a lot of that is that the Wills in the register aren’t necessarily the last Will of somebody and if they change their Will and its not updated then that obviously can create some problems.

LG      So if you create a Will where should it live?

BB       It should live, my recommendations is that it should live at solicitor’s office.  And the you get a letter to say its at the solicitor’s office and that’s where it is.

LG      Alright Stephen thanks for your call, Beatrice is on line 4, good afternoon

C6       Good afternoon Mr Barlow

BB       Hello Beatrice

C6       My question, I’ve got a couple, but it’s all to do with taxes.  What taxes do beneficiaries have to pay on property and assets in Australia at the moment?

BB       Well Beatrice, that is a very wide issue and perhaps it’s more the domain of a tax lawyer, but if you receive a bequest in a Will on the face of it, it’s not subject to tax.

C6       Oh really

BB       However, if it’s an asset for argument sake that is subject to capital gains tax, then it maybe that there are those taxation implications, but

C6       I’m talking about home, talk about the home then

BB       No, well if it’s the home are you concerned that the home might attract tax in the hands

C6       Yeah, yes

BB       No, if its the home then it would be usually capital gains tax exempted

C6       Oh right yes

BB       As the principal place of residence and then either the value of the home passing to the beneficiary would generally be tax free.

C6       Oh right ok now, can making them all tenants in common avoid these taxes?  Or the capital gains?

BB       No, well sorry, you’re talking about the asset, it’s the asset itself whether it attracts capital gains tax rather than how a beneficiary would hold it.

LG      And we don’t like to talk about avoiding

BB       Do we

LG      We don’t like to talk about evading tax, avoid tax is, one of those is ok, and one of those is not

BB       Yes, yes well I mean I think every persons wants to minimise their tax

LG      Yes, that’s it

BB       And I would use the words minimise.

LG      OK and I’m with you, because your with Turner Freeman and this has been legal matters.  Brian thank you so much for dropping by today.

BB       Thanks, Luke

LG      Good to meet you.  An there will be another legal matters of course next week here when Smithy is back, on a Tuesday afternoon, thanks to our sponsors Turner Freeman Lawyers, I’ll tell you more about them soon, but you can find them on the web TurnerFreeman.com.au or call them on 1800 800 088 and remember they have a combined 500 years of experience, Turner Freeman Lawyers.

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