Leaving your family with the burden of not having a will
Tuesday, 24 May 2016
CS – Chris Smith /JM – John Mann /C1,2,3, etc – Callers
CS Yes time for our Legal Matters segment brought to you by Turner Freeman and thanks to Turner Freeman Lawyers and our segment we have got a $100 Westfield Voucher to give away to the caller of the afternoon between now and 2:00 and of course Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, family and employment law, commercial litigation, superannuation and disability claims and wills and estates which is where we are heading to today. Now earlier this year, the world kind of reacted in mourning when music legend Prince passed away but his family faced a number of legal challenges because Prince did not have a Will. Well unfortunately this is more common than you think, so today we are going to start with all of that. If you’ve got a question for John Mann from Turner Freeman, 131 873 is the telephone number. I didn’t know you were a fan of Prince John.
JM I didn’t know that either.
CS Good afternoon.
JM Hi Chris.
CS Prince had an estate worth an estimated $300 million dollars – he had no children – no living parents and now I could imagine every man and his dog is saying that he is related to him.
JM Oh no doubt about that at all.
CS And that’s one of the first things that occurs is someone doesn’t have a Will but has a decent estate right?
JM Yes quite – it’s a major attraction particularly in the United States. The problem with they’ve got is – who’s entitled to his estate would depend upon what state his assets might be in; what his domicile is, not necessarily I guess where he lives, and in the particular State what the law is as to who inherits because they can vary from State to State.
CS So it can be a little bit of mess. Here in Australia, what happens to the Estate when a family member dies before creating a Will?
JM In Australia the general picture is that the Estate will evolve on your family. This has its origins I suppose in ancient times where property was inherited by bloodline and that is very much still the law today. The law of intestacy is the law of this of course to a large extent follows our family or our tribal line. It’s quite extensive. The possibility of having no-one inherit your estate is probably fairly remote because there are an awful class a person is to get through before it reaches that point.
CS Right oh. So who administers someone’s Estate if they don’t have a Will?
JM Generally the person that’s entitled to the Estate. In other words if a man should die and he has a wife – today – if there’s any children of the two of them, then the wife takes all – she would administer the Estate for her own benefit.
CS What happens if someone dies without creating a Will and has no living relatives?
JM Then the Estate is what’s called Bona Vacantia and it goes to the Crown – the New South Wales State Government..
CS Okay and they will make decisions about what to do with the assets.
JM Yes – yes – they will administer the Estate – it is usually done through the Crown Solicitor’s Office – but even then there are provisions where a person who is not necessarily entitled legally can still make a claim for a payment ex gratia out of the deceased person’s Estate.
CS And is there a time period that that ends – that that opportunity ends?
JM Not really.
CS Like can it happen 40 years later?
JM It probably could. I mean highly unlikely but it possibly could because a payment in those circumstances are usually made to someone who might have been an extremely close helpful carer.
CS Even if the cash and the assets are passed onto the next – to another person?
JM Oh no – no no no. I’m only talking about the situation where there is no-one entitled to the Estate.
JM That’s when it goes to the Crown and the Crown can decide what it’s going to do with it.
CS All right. Ken’s got a question about Wills. Ken – John is listening – go for your life.
Caller 1 – Ken
Ken Okay – what is the life span of Wills?
CS What’s the life span of a Will>
JM Your lifespan – Did you change it?
Ken Yes – she changed it.
JM You’ve either got to cancel it, which we call revocation or you make another one which will revoke the previous one, but otherwise – I did an Estate recently where the chap made his Will in 1949 and only died a couple of years and it’s just as good as the day he made.
CS So the Will that’s been made Ken, stands today.
Ken So, what I’m saying is – on the case – that I’d need to change the Will by my standard or if I leave the Will standing and what is the lifespan. So it never changes.
JM No – we won’t change it unless you do something positive to change it.
CS All right Ken – thank you very much for your call. Ron – go right ahead.
Caller 2 – Ron
Ron Hello Chris – Hello ……..
Ron I am 90 years of age so I don’t have too many years left. I want to make a new Will. I have two daughters and I have in mind making them joint executors. Now, firstly can I have two executors and secondly if there is a dispute between them for instance if I said I want my house sold – one wants it auctioned and one wants it private treaty, how do I get on? Do I nominate one of them as the determining factor?
JM I suppose you possibly can but then what’s the point in appointing two? If you are going to entrust it with one to make the decisions, there’s not a lot of point in having two.
Ron Well I think they are of equal importance to me and I wouldn’t like to disenfranchise one against the other.
CS What happens if they disagree?
JM Well exactly, then often those disputes have to be resolved by the Courts.
Ron Okay. So if it can’t be resolved between the two of them, it goes to Arbitration?
CS Ah, well it would probably finish up by with an Application by one of your daughters to have the other one removed as executor.
JM So that they can continue the administration of the Estate.
Ron So if I have the two of them – I could not nominate one of them as the deciding factor?
JM I don’t see any point.
CS All right. Good on you Ron – thank you for your question. We are going to take a break and back with your calls – plenty of people want to talk about Wills and Estates today and that’s exactly what we’ll do with John Mann from Turner Freeman. It’s 12 to 2.
CS This is legal matters. I’ve still got that $100.00 Westfield Voucher to give away as well – brought to you by Turner Freeman Lawyers – John Mann taking your calls. John – John’s listening.
Caller 3 – John
John Ah, John – Chris – How are you?
John My question is we’re going – I’ve got a Will in place at the moment – so has my wife – But we’ve got unusual circumstances of the entire family going overseas at the same time. I’m talking in-laws – parents – kids – everything. Now – I know if anything happens to us – the people obviously that are going to inherit are the kids or will go to the in-laws to either side. The whole family’s going away. What happens in circumstances like that? Should I be doing another Will quickly and basically saying well if anything happens to the entire family, this is who we leave it to? What should we be doing?
CS Good question.
John In circumstances like that.
JM Good question and there’s a few dimensions in that because the question firstly is – who is entitled as between yourself and your wife? Now if you die in circumstances where no-one can determine medically who died first, the elder is deemed to have died first – that would mean even though if your wife survived you by a nano-second – she inherits from you and that’s her next of kin – ultimately who may share the Estate,.
JM To answer your first question – yes I would make a Will quick smart because if something like that happens and you’ve got to make sure you – where your property goes where you want it to. There’s a long list of people after parents – brothers and sisters – children of brothers and sister – if a brother or a sister has died before yourself – then grandparents – then it moves on to brothers and sisters of the parents – in other words uncles and aunts and finally cousins. So there’s every chance that someone will be out there who could inherit – the question being then who’s – which way does it go through – your Estate if you are the younger or through your wife’s Estate if she’s younger.
CS Okay – John I’m going to give you the $100 voucher because it’s a really good question that’s lead to a lot of answers for a lot of people. Well done.
John Thank you very much.
CS All right – stay on the line John – We’ll get you the $100.00 voucher – I’ve got time for another caller to get through to John – Michelle – go right ahead.
Caller 4 – Michelle
Michelle Oh – hello Chris –Can I speak with John please.
CS Yes – he’s listening. Go right ahead.
JM I’m listening
Michelle Hello John
Michelle I’ve been married to my husband for 43 years and I nursed him for 15 and he passed away just 10 years ago and he said to me – my brother sold the land and he only got “x” amount of dollars and we’ve only for $20,000.00. Now at the time I was in such grief and then my daughter split up with her husband and was expecting and I just nearly went mental and I didn’t think any more about it and I thought oh well there’s a time limit of 10 years had gone – I hadn’t got a claim but the widow’s pension is my only income and I thought that was very underhanded of his brother to do that and his brother had – my husband’s Will and everything and so I just don’t know what to do – If I was able to make a claim at all?
JM What property do you say his brother sold?
Michelle Ah, his parents’ home – it was on 2 blocks of land and it was at Cabramatta.
JM And your husband’s brother – the two of them were entitled together?
Michelle Oh yes – half share. There was just the two of them and my husband was sick and I really thought perhaps he’s mind’s going but in the grief and the tragedy, I didn’t bother about it and a friend of mine said – you should be able to claim some of that – you’ve been married to him for 43 years and you nursed him for 15.
JM Yes – Look it’s very hard to give you a simple answer on that one because you’d have to find some evidence as to what was done 10 years ago when the brother sold the property – where that was a bone fide transaction.
CS I tell you what might be worth it – seeing that this requires a decent answer and I’ve got no time left is to maybe get Michelle in contact with you John and you might be able to give her a little bit better direction than what we can do in 15 seconds. Michelle – thank you for that. Some of these answers require some decent diligence so we’ll try and get you in contact with John. John – thank you very much for your time this afternoon.
JM Thank you Chris.
CS John Mann – Turner Freeman.