John Mann providing Q & A on 2GB, Chris Smith Afternoon Show discussing Wills & Estates – 19 June 2018
Tuesday, 19 June 2018
CS – Chris Smith /JM – John Mann /C1,2,3, etc – Callers
CS Now. Contesting a loved ones Will can be a very emotional time as we often tell you. For one NSW family who have been particularly tumultuous. Last month, the NSW Supreme Court saw a sensational showdown between three siblings. It was all over their father’s Will. John Barbanera was left out of the Will for his allegedly abusive behaviour towards the rest of his family. So he decided to take his siblings Nancy and Peter to Court. Now while the Court ruled John wasn’t entitled to his father’s estate, many legal experts have come out and said just because someone is violent towards a family member, does not mean that they are automatically ruled out of entitlement to an estate which is a very interesting dilemma and I would have thought if you had gone to another part of the legal fraternity, you might have got a different result. But thanks to Turner Freeman Lawyers and their Legal Matters segment, I have got a $100 Westfield Voucher to once again give to one of our callers this afternoon. A $100 Westfield Voucher. As you now, Turner Freeman Lawyers provide a long range of specialised legal services, a very wide range including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, Wills and estates and property law. Now the NSW offices are in Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong. Their Queensland offices in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns. Now last time we had John Mann in the studio from Turner Freeman and he is their accredited specialist in Wills and Estates. We couldn’t get to all our callers. I would suggest that you get in nice and early, like right now! 131 873 if you have got a question and you would like some free advice on Wills and estates. John is based at the Turner Freeman Penrith office in Sydney but also sees clients elsewhere. He joins us in the studio. John. Welcome. Thank you for coming in once again. Good to have you here.
JM G’day. Good to be here.
CS Now in the case. This is intriguing. In the case of the Barbanera siblings, their father Antonio included very detailed explanations of why he excluded his older son John from his Will entirely. If he hadn’t included these explanations, would the Court have ruled differently?
JM Possibly so Chris. The legislation of the Family Provision provides that the relationship between the deceased person and the plaintiff is a very relevant consideration. There have been other recent cases decided where the plaintiff receives nothing even though the Court said he had financial need because he had no relationship with his mother and that that had been going on for some 20 odd years or more and that was on his part that the relationship had come undone.
CS So these were what put in a series of explanatory notes? Or were they included in actual Will?
JM No. They are not. The general or better advice is that if you are going to make a statement about a child and estrangements from families are not unusual where the person hasn’t spoken to their parents for a long time. The legislation provides that a document prepared by the person or on their behalf is relevant in the Court case even though the person themselves is long gone. So they can say “I’m not providing for my eldest son for the reason that he has not spoken to me for 20 years – doesn’t ring me up on my birthday, doesn’t send me Christmas Cards” etc etc.
CS So you’d have – so when you pass and that Will was left and there were explanatory notes saying similar things that you have just described, it would be easier for a Court to validate your wishes in your Will as opposed to simply not having any explanatory notes and leaving a sibling out of the Will?
JM That’s quite so and the Legislation provides for that to be admissible. It….. the better advice is that he is not included with the Will, because when a Will goes to Probate it becomes public record. Now if for whatever reason the person making the statement is in error, then that error is open to all of the public to view and Court to view whereas if has erred prior to death, his executor who is a defendant in the case has a choice whether he presents that to the Court of not.
CS Okay. There were other aspects of this case that I do want to take up with you but we’ll go straight to our callers and some who have got questions for you on other issues related to them. 131 873 is the telephone number. Let’s start at the top. John. Go right ahead. John. Your namesake is listening.
Caller 1 – John
John Thank you very much. Good afternoon guys. I am just querying. I am the executor of my late Aunt’s Will and what’s happened is I’ve got a solicitor to organise the Probate and all that part of it and she’s got a little bit of money – so I have been told that nobody can claim against the Will after 6 months time from the death. Would that be correct?
JM Not quite so. No. The time limit to bringing a Family Provisions claim is 12 months.
John 12 months?
JM However, if an Estate is ready to be distributed within 6 months and the executor publishes an advertisement of his notice to distribute the Estate and does so, then he is protected from a claim from personal liability in distributing the Estate.
JM But the claim can still come within 12 months but if the Estate has been distributed in that fashion, then the plaintiff has to play go fetch and get it back or try and get it back from the people that it has been distributed to.
John In other words, will I get the solicitor just after it’s ready…. because it’s in Probate at the moment and it will probably be ready very soon – so I will get her to publish something to say exactly what you just said.
JM That would be very wise. Yes.
John That they are going to be distributing. Right oh. Well that’s very good. Well, thank you very much for that advice.
CS Good on you John. Thank you for the call. Garry. Go right ahead.
Caller 2 – Garry
Garry Chris and John. If you live in NSW and you move to Queensland and you make a Will in NSW and you die in QLD. What happens?
JM Your Will is just as valid in Queensland as is in New South Wales. Recognition is given Australia wide even though we have State jurisdictions.
CS Yes – it depends on who you go for the State of Origin though Garry…. (laughing)
Garry Oh mate….. I don’t go for anyone…… I heard that there was some restrictions. Oh not so much restrictions – because of the different law in QLD and NSW, they handle it a bit different.
JM Well if you are talking about a Family Provision claim – yes things are different.
JM And the classes of people can apply and time limits etc – they do vary between the States but the validity of the Will itself and for Probate is recognised around the States.
CS All right Garry. Thank you. Mimi in Blacktown. John is listening.
Caller 3 – Mimi
Mimi Oh hi John. How are you?
JM Well thank you.
Mimi My question is this. It goes along the similar lines to what you previously discussed before you took any callers. What if there is no Will left by the deceased and you know – as an example as a parent – and that parent has subsequently re-married. Does the Estate automatically pass onto the spouse I guess?
JM Yes. That’s the general rule. When you don’t have a Will is what the lawyers call it an “intestacy”. Where you die intestate, the Estate is distributed according to the law and the law is prescribed by the various States. Where you have a what you might call a second marriage………
JM …… if there are children that are not necessarily the children of the partner, then she or he as the case may be will receive part of the Estate, which they call a statutory which is $350,000 plus indexation and half of the rest, the children of the deceased person – not being the children of the partner, will receive the other half of the residue.
JM But the second wife may not receive more. It depends on the circumstances.
Mimi Okay. And so therefore do the children I guess or the child of the deceased, can they make a claim?
JM Yes – they can also make a claim – the fact that you do not have a Will does not mean to say that you can’t bring the Family Provision claim because you are then bringing a claim against the provisions of the law may consider what the Will says.
Mimi Yes. Okay.
CS Good on you Mimi. Thank you very much for your question. I want to go back to the Barbanera case. Now in the Judgment, Justice Slattery noted that John’s position financially was comfortable – was the word he used “comfortable”. What influence does someone’s financial position have on the decision of the Judge make regarding a contested Will?
JM Oh it is critical. Family Provision is not about fairness or anything like that to simply say, well there are four children, they will all get shares of same has nothing to do with it at all. It’s to do with adequate provision. Now where contestants might say siblings. One is well off and two are not, then a wise testator would make their Will to favour the two that are not well off and where a claim is made, the Court can say well you’ve got plenty yourself, why does the Court need to give you more? And that would be the reason for that.
CS Okay. We’ve got to take a break and I just want to remind you that you can go to the website Turnerfreeman.com.au. Turner Freeman bring you this segment each and every Tuesday. You can also call them in NSW 1300 237 112 or Queensland 13 43 63. We will be back to take your calls and give away that $100 Westfield Voucher too right after the break.
CS I want to go Ray. Ray. Go right ahead.
Caller 4 – Ray
Ray Yeah – hi John. How are you going?
Ray Mate. I’ve got a [dirty one] for you. There’s a Will leaving one Estate to one sibling. The sibling who basically paid off the mortgage and looked after both parents. Now one of the other siblings has broken into the house and tore up this Will and another Will was reinstated – what happens in that situation?
JM Are there any copies of the one that was destroyed?
Ray Well – not that can be found……
JM Very difficult situation because if there is no trace or evidence of the destruction of the previous Will, then again becomes either is there is another Will or an earlier Will becomes that or it is an intestacy, but that would not rule out the sibling who had done all that hard work brining a Family Provision claim.
JM They still can but you can get Probate of a copy of a Will – as long as the original hasn’t been destroyed by the person who made it. If they tear it up themselves, then that’s the end of it. If somebody else tears it up without their knowledge, then a copy can still be quite valid.
Ray It is one of those Wills that was made the last Will?
JM Well – sorry – so it is very hard to know that situation what is the last Will because one that has been destroyed – you never know where it is going to fit into it?
Ray Right. Yeah – it makes ……. bad situation anyway.
JM Well it does but as I said it does not rule out Family Provision.
CS Alright Ray. Thank you very much for your call. 131 873 is the telephone number. Sharon in Penrith. Go ahead Sharon.
Caller 5 – Sharon
Sharon Hi Chris and John. Thank you for taking my call.
CS That’s okay.
Sharon I have an aunty that she looks as though she is now in the mid stages of dementia. She hasn’t got a Will in place or a Power of Attorney. She has got a husband but they haven’t gone to the extent of putting their affairs in order. What can we do…… like she is at a stage where there are days that she might be able to make a decision – but she is having more bad days than good days – so….
CS There is a path forward on this and we have discussed it before but John you take it here…
JM Thanks…. Yes – it is a difficult situation. The legal test of the capacity to make a Will is not as simple as you think. It is however possible where people have disorders that they have a period of time where they have that capacity, it’s rather like a lighthouse going around, the light comes on, they are fully clear, they can make a Will, then it goes back into the darkness. Where you find that time is far more difficult and in a situation like that where it is known that she has a diagnosis and it is becoming advanced, you may have to get a psychogeriatrician to review her to see if she is in a fit state to make a Will at all.
CS And you’d have to probably get two would you?
JM Possibly two yes. You see in that situation, if she would have died without a Will, her husband would probably take all of her Estate so that it may not be all that – you know – catastrophic.
Sharon Yes. Everything is like joint tenants…. so…..
JM Yes well thats……
Sharon They’ve got no problems about that…..
JM It may not – that may not be an issue there. The other thing in a Power of Attorney that an Application should be made to the ENCAT Tribunal, the Guardianship Division for an order for financial management, which is very much the same as a Power of Attorney but it’s supervised by the Trustee and Guardian generally.
JM So all is not lost. Certainly the survivor should be considering making a Will because when they go, their wishes might be – not necessarily going to be what the testator is going to say.
Sharon Yes. Yes. So it is ENCAT…..
JM ENCAT – the Government Tribunal, Guardianship Division – you can get on to them online… make an application for financial management.
CS Sharon, I’ve got $100 for you – a $100 Westfield Voucher.
Sharon Oh have you really?
CS I have.
Sharon Oh. Thank you very much.
CS I can’t give you $11,000 like we did earlier but I can give you $100.
Sharon Oh thank you so much. That’s wonderful.
CS Well done. Stay there Sharon. We will put you through to Hansel and we make sure it goes to the right place. Now, Janice has a question. She’s been waiting for the entire half hour. Go ahead Janice.
Caller 6 – Janice
Janice Hello – Good afternoon.
CS Good afternoon.
Janice The…….. you were talking about writing with the Will… I have been estranged from one son, but I have not cut him out of my Will. But my solicitor did say to me that he could contest because my other two children have homes and he doesn’t. Is he able to do that?
JM Yes he is. Very sensible advice. If you leave him some provision in the Will, he is going to think twice if he wants to apply for more, but the distribution of your wealth between your family is a matter that needs to be considered carefully.
CS Very very true. Phil in St Claire. Last call. Go ahead Phil.
Caller 7 – Phil
Phil Yeah – Hi bud. Just wondering what is Probate?
CS Good question.
JM Probate is an application by the executor of the Will to the Supreme Court. It proves that the Will is the last Will of the deceased person; that it has been made according to law and Probate is actually a document that is issued by the Court with a seal on it which is the bridging between the executor and the deceased person. The executor effectively becomes the deceased person and can then deal with their assets according to the Will.
Phil How do you know that that is the last? Is there any registrar of Wills?
JM Look, there have been attempts at Will Registries but they don’t work and the answer is – it is often difficult to know whether it is the last Will. Sometimes later Wills do turn up.
CS Alright Phil. Thank you very much for your call. I’ve run out of time. John. Thank you very much for coming into our studio this afternoon.
JM Thank you Chris. Good to be here.
CS Really interesting issues related to Wills and Estates and I’ll get John back down the track. That number for Turner Freeman Lawyers in NSW by the way is 1300 237 112 and in Queensland 13 43 63.