John Mann providing Q & A on the 2GB Chris Smith Afternoon Show discussing Unfair Wills – 19 September 2017
Tuesday, 19 September 2017
Chris /JM – John Mann /C1,2,3, etc – Callers
Chris: Well a few weeks ago I read a story about a Queensland woman who successfully challenged a series of wills made by her grandmother. Now Ella Minibush from Northern NSW made 5 wills, between 1990 and 2013. But in the last few wills that Ella made, she gave everything to her local Anglican Church and The Cancer Council, not her family. She also appointed her late brother, whose funeral she attended in 2002, as her executor. Well her granddaughter, Helen Craig Bridges, has been battling the NSW Trustee and Guardian, for the last few years. She says her grandmother was unfit to sign her last three wills, so what does this case tell us about wills and estates, and what your rights are? We’ll cover this right now, thanks to Turner Freeman Lawyers. I’ve also got as usual, a $100 Westfield gift voucher to give away to one of our callers. TFL, provide a range of specialised services, including, compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, wills and estate and property law, their offices in NSW; Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong. In Queensland; Brisbane, Logan, Northlakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns. If you’ve got a question, 131 873 in reference to wills and estates. John Mann, is an accredited specialist, in wills and estates, and property law and he’s in the studio right now. Thank you John for coming in.
John: Hello Chris
Chris: I remember discussing the phrase testamentary capacity, last time you were here. Just remind us what testamentary capacity is.
John: Testamentary capacity Chris is a judicial test, as to whether a person would’ve had capacity when they made their will. It involves 4 elements. Firstly, they understand what a will is, secondly, they understand what their property is, thirdly they understand the calls on them by their immediate or people that they should make provision for and fourthly that they’re not suffering from any delusion or mental incapacity.
Chris: So in the case I mentioned in the introduction to this segment about the Queensland woman, who challenged her grandmother’s will, it’s the grandmother’s capacity that clearly will be in question right?
John: Quite so.
Chris: So if someone’s made someone who’s been deceased for around 10 years as an executor that could clearly be used as evidence that she didn’t have testamentary capacity.
John: That’s part of the overall picture but the court looks at the entire picture, the court will look at reports from doctors, the courts will look at medical records, the courts will look at reports of the person’s behaviour, the courts will look at, the complication of the will, the things that are in it, the whole range of factors that the court looks to make the ultimate decision as to whether they will ticks those 4 boxes to give her capacity.
Chris: And its interesting, Helen Craig Bridges, the woman I mentioned she actually spent a few years battling the NSW Trustee and Guardian in the Supreme Court and the wills were initially upheld.
John: Yes that could be so. There are a number of conflicting decisions from judges taking into account various facts that some wills are upheld and some are not.
Chris: And when Helen appealed that decision, she was successful. So it’s quite complex isn’t it, this whole question of as you say testamentary capacity, um on the one hand you can have evidence to show she was in the right frame of mind that she was able to make a decision about where she wanted her will to be dedicated to and on the other hand, maybe you just make mistakes.
John: Possibly, as I say, as people are living longer, the capacity cases are becoming more frequent, because people are making wills in their 80s and their 90s uh where sometimes their mental capacity might be in doubt, other times, they might be as bright as a button. But people are making claims because some people think it should’ve been provided to them and not others.
Chris: Absolutely. Alright interesting case. I want to take a break, and I’m gonna come back with your calls, we’ve got plenty of them, and people with questions about wills, or their situation involving their own estate.
Okay I’ve got John Mann with me now. You wanted to add something to the case that we were discussing just earlier John, did you?
John: Yes I did Chris. To challenge a will in those circumstances you must have what the lawyers call an interest, in other words if the person’s will is knocked out through one of capacity then you must be able to say that I step in, and I would’ve inherited because a will she made when she did have capacity. Granddaughters are not necessarily beneficiaries but she would’ve been in an earlier will that was made at the time the lady had capacity
C1: Yes, I was just wondering when the family home is left in a will to say, one of your children, can that child hold on to that home indefinitely or is there a limited time that he can hold it.
John: Well it depends on how you give it to them. If you give it to them absolutely, in other words it’s your property to do with it as you please, then they can do just that. Sometimes houses, family houses, are left to family members for their life or a limited period of time.
C1: Do you have to state that?
John: Yes you do
C1: You gotta state that in your will
John: You must
C1: I see
John: You must make it clear how the gift is going to be made.
C1: I see, alright then, well thank you very much for your help.
Chris: Good on you Shirley, much appreciated. 131 873 is the telephone number if you’ve got a question about wills, estates, maybe a situation you’re in and you’d like a little bit of advice from John go for your life, now’s the time to call. Meg, hi.
C2: Oh hello. Could I just ask John something about power of attorney please.
John: Yes of course.
C2: I got a solicitor to make out a power of attorney for me. Now that hasn’t worked out so well with the person that I nominated. What do I have to do, to void that. Just tear up the original or?
John: well first of all, you need to know whether the original has been registered.
John: In which case, revocation of a power of attorney is simply done by giving your attorney a written notice saying that this is revoked. But, if its registered then you need to register a revocation as well, but ordinarily if it’s not a registered power of attorney, you simply give your attorney a letter saying that that’s it, the power is revoked. And that’s the end of it.
C2: Okay so best I get back to the solicitor.
John: Yes, you would need to get the solicitor to prepare a verification en registrable form and get the registration revoked.
Chris: Good on you Meg, thank you very much for your call. Andy in Maroubra, go ahead Andy.
C3: Hi there. If there’s an insurance policy in play and there’s 2 beneficiaries, um and then the person that owns the policy decides to give everything to one beneficiary, does the other person have a claim on that?
John: I’m not quite with you there, I mean if a person
C3: If the person who owns the policy passes away, and originally there were two beneficiaries and somewhere along the line it changed to one, and then they pass away does the other person have a claim on the estate?
John: I would think not, because I’m assuming its life insurance you nominate a beneficiary, well it’s entirely up to you to change if you do the one that’s nominated is the one that inherits the proceeds of the policy
C3: So that includes two children so if they decide to give everything to one child and not the other one
John: Yes yea, I mean if a policy is made payable directly to a person doesn’t even go through the will it’s just paid directly to the insurers to the nominated beneficiary.
C3: Right okay.
Chris: Does that answer your question Andy or not? You don’t sound like a satisfied customer there
C3: No, it just seems a bit strange that if for whatever reason whether its tax or otherwise that the owner of the policy decides you know if I give it to one child, then the other child who’s married and whatever it won’t go down that line and you know the ex can’t get their hands on it or whatever, so you give everything to the other child and it’s kinda unfair for the one that’s missing out you know what I mean.
John: Well there may be some consideration for family provision claim in a situation like that, otherwise, if it’s the policy of the deceased person it’s up to them who they want to benefit with.
C3: Yep okay
Chris: Andy I’ve got a $100 Westfield gift voucher for you
C3: Oh, thank you very much
Chris: Yea fantastic. Stay online and we’ll get that $100 voucher to you. Margaret go ahead.
C4: Yea hello, I just have a question about mum’s will, she left me a will with a house and um what happened is she left it to me and my brother, and my brother has since passed, but what happened to the will was the elder sister took the will out of the house and I’ve had to see a civil solicitor in writing her a letter asking her for a copy because you know I want my mum’s house. My other sister’s living in it. What do I do about the law, I’ve been trying to work with the police and everything you know and they just tell me it’s a civil matter.
John: Yes that not unusual, if a person has a will of a deceased person, then there is a procedure where an application can be made to the Supreme Court to have that person bring the original will into the court and have it impounded but whoever is in possession of the will under the act if required to provide a copy have to do so
C4: Well she’s refusing, she’s telling lies
Chris: So where does Margaret go to John
John: She’ll have to go and see a lawyer about perhaps some sort of action in the Supreme Court to have the will deposited with the registry of the court.
Chris: Alright Margaret I gotta leave it there, but John that’s interesting you mention about police not getting involved, they don’t like getting involved in family matters, they don’t like getting involved in wills and estates because they really are civil matters aren’t they
John: Well, getting proof to a criminal standard beyond reasonable doubt in any of these sorts of things is very very difficult
Chris: Yea, very very true. John thank you very much for coming in based in Turner Freeman Penrith Office also sees clients in Windsor and Gloucester offices as well John Mann from Turner Freeman Lawyers.