Updating your will after a divorce
Luke /JM – John Mann/C1,2,3, etc – Callers
Chris Yes, Legal Matters and you should jump on the open line right now 131873 because the topic in Legal Matters is Wills and Estates, so if you’ve got an issue regarding a particular will, or an estate, and I know, after we advertised what we were doing today, we’ve had a number of emails sent to us and I’ll get to those in just a short moment. But maybe you’d like to ensure that your individual wishes are upheld, do you think you’re doing the right thing with the will that you’ve got? Do you need to update it? What about those who are looking after the will when you pass away, are you happy with that? Turner Freeman lawyers provide a range of specialised legal services on Wills and Estates, property law too, family and employment law, superannuation and disability claims, asbestos litigation, compensation and negligence. Their NSW are at Sydney, Parramatta, Campbelltown, Newcastle, Penrith, Wollongong and Gloucester and in Queensland you can find them in Brisbane, Logan, North Lake, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns. John Mann, is an accredited specialist in Wills and Estate and property law though Turner Freeman’s Penrith office he does work at Windsor, Gloucester etc. He’s in the studio with me this afternoon, John always good to have you here.
JM G’day Chris, glad to be back.
Chris Now I’ve got a couple of emails I want to get to before we take calls on 131873. Um Adele, wrote this, I’m divorced, as soon as I separated I changed my will to exclude my ex, I have since been divorced, someone told me that after divorcing you have to do a new will due to the change in your status. Is this correct or is my current will valid?
JM Your current will is valid, divorce will simply remove any gift that you might’ve made to your ex-spouse in a prior will but having made another one then you’ve got no concerns.
Chris Even though she changed it just before the divorce. What if she changed it after the divorce?
JM It wouldn’t matter.
Chris Right, it wouldn’t matter.
JM But the divorce itself can affect an existing will so that any gift to the spouse is removed by the divorce.
Chris Right okay, Adele, you’re on safe ground by the sound of it. 131873 um Christine wrote to us during the week as well knowing that you were coming in. My late husband’s father just passed away, are my adult children entitled to what would’ve been their father’s share of his father’s estate. As my father-in-law had only passed away on the 2nd of June, do I wait for the reading of the will or should I start the ball rolling beforehand?
JM I think you’ve gotta wait till you know what the will says. Quite commonly wills provide that if a child predeceses the test but leaves children, other words grandchildren surviving, the grandchildren take their parent’s share, depends on the wording of the will. So you’ll have to wait till you know what the content of it is.
Chris So if it doesn’t mention the grandchildren it may still apply to the grandchildren
JM It possibly can because there’s some uh provisions in the law that if a child, that if you leave a will leaving everything to your children and one of them should die before you with children of their own, even though they’ve died before you that gift doesn’t fail, it survives for the benefit of their children.
Chris Okay, can you ensure that your will will be upheld after your passing absolutely?
JM I suppose nothing in this worlds guaranteed 100%, but generally speaking, its your will, you’re free to make it as you wish, um the courts may intervene if you haven’t made provision of your life for somebody you should’ve done or if there’s some element of doubt about the validity of the will and how its been made then they can be open to challenge
Chris When you say you should have, what is your obligation on passing? Couldn’t you simply say I’m sending all of this money to my favourite charity and none of my siblings or none of my family is getting a cent.
JM Well you can say that because that’s your right to say it. But the government have introduced this legislation called family provision. which has actually been in existence for over 100 years in various forms which says that if there are people in your life that you ought to consider such as spouse, children, in the case of current legislation there are other categories of people who might’ve been close to you and dependent on you financial support can make an application to the court for the will to be rewritten on the basis that you did not make a provision or you did not make an adequate provision for those people.
Chris Okay, and there’s your question answered. Chris, you’ve got a question for John, go right ahead.
C1 Hello, can you hear me?
C1 Right um, look um my situation is my sister never mentioned me in my will, I’m her brother, and when uh, she passed away last year, I was informed that the government, I dont know state or federal, has changed the law that a brother can’t challenge a sister’s will. Is that correct, I’ve been told by about 4 solicitors now.
John Well I’m about to be number 5. Unless you can demonstrate, that you have been a member of the same household of which your deceased sister was a member, I don’t necessarily mean that when you came up as children. But otherwise, is sometimes dependent on her for financial support, you have no claim.
C1 Its just unbelievable
John Well I’m sorry I don’t make the laws our political masters make those.
C1 Can you tell me, is it a state government or federal-
John Its a state government legislation
C1 And yet, if I was to be say her husband and I was not in the will, I could challenge it couldn’t I?
John You certainly could yes. The fact is you’re simply ineligible to make a claim in those circumstances.
C1 I just don’t understand it. But anyhow, I’ve got engaged a firm of solicitors and they’re working for me now on other issues. But it looks like any sort of partial inheritance is just not in any way hopeful I suppose.
Chris Alright Chris, we’ll let you get back to your other advice. We’ll talk about testamentary trusts right after the break we’ll take more of your calls. I’ve still got a $100 Westfield voucher to giveaway to one of our callers to between now and around 2 o’clock. 131873 is the telephone number. Just very briefly John, testamentary trust, where do they come into our wills?
John There are certain times where we need to make provision for somebody, but we don’t necessarily want to actually give them full control of our money. But I’m giving a fairly simplistic example, we have people with disabilities or we have people with problems such as addiction to chemical substances, gambling, bankrupts that sort of thing. You can still make a provision for them by putting the money in a trust and then authorising the trust to pay the income or part of the capital out of the trust for their benefit, but without necessarily giving them control of their money.
Chris Right okay
John Well that’s one form of testamentary trust thats a very common form
Chris That’s gotta go through court obviously?
John No, they’re actually created when you do the will.
Chris Right okay
John They form part of the will
Chris Okay alright, Denise has got a question for you. Denise, John is listening.
C2 Oh hi, I’m just wanting to find out how long after the person has passed, they can contest the will if they weren’t mentioned in the will.
John In NSW, 12 months from the date of death.
C2 In Queensland?
John I think Queensland is 6 months from the date of grant of probate but I’d need to check that but I think that’s what it is.
Chris We’ll have an answer for you Denise in about 2 minutes alright?
C2 Okay thanks.
Chris I’ll have an answer for you in 2 minutes 131873. Donna hi.
C3 Hi Chris, hi John, how are you?
C3 Um, my mother passed away recently, she did have a current will in her health but my sister and I cannot locate it. However, we have located an old will that was being held with a solicitor. There was an executor in that old will, as my sister and I were both under the age of 21 when that will was made. The executor wishes to be removed as both of us are now in our 50s and is it difficult to change the executor to my sister and I or could you explain the process to me.
John Well generally speaking the appointed executor does not have to take the task on, the executor can announce probate, in other words he says I’m not gonna take it on, now if that means that there is no executor left in the will, generally speaking the courts will grant what’s called administration, with that will annexed to the beneficiaries of the estate.
John If you and your sister are beneficiaries then the two of you
C3 Yes we are
John Would make an application, or one of you could make it with the permission of the other, to administer the estate.
C3 Oh okay. Alright, so that not a difficult process.
John No its not, its not.
Chris Donna you’ve got the $100 Westfield voucher
C3 Oh great, thank you very much!
Chris All yours, stay on the line Donna.
C3 Thank you.
Chris According to what we’ve discovered um, apparently you’ve got to put it in writing within 12 months from the date of death in Queensland. 131873 5 minutes away from 2 o’clock. Michael, go right ahead.
C4 Hi Chris, hello Paul
Chris It’s John, Michael, John is listening.
C4 Sorry John. John I’m just wondering if you could explain the role of an executor to a will please.
John Yes, the executor is the person, that the testator appoints, firstly, to get probate of their will. Probate is an application to the court to approve its the person’s last will and its been made according to the law, and the probate is the authority for the executor to deal with the deceased person’s assets. The second function is to pay any debts, and that is subject to however that is erected in the will if erected at all. And the third is to distribute the estate, according to the deceased person’s wishes.
Chris Okay Michael I’ve got to leave it there. I think that that was a fairly comprehensive answer. I got that wrong, its 6 months, no in terms of Queensland, the notice from the date of death is 6 months. In NSW its 12 months from the date of death to contest a will, so 6 months in Queensland, they’ve got to have it in writing.
John I’ll check that Chris, but my recollection was 6 months from the date of the probate of the will was created.
Chris Next time we’ll get you in
John Yep, I’ll confirm that next time.
Chris Good on you. Thank you John, John Mann from Turner Freeman Lawyers.