John Mann providing Q & A on the 2GB discussing Wills & Estates – Chris Smith Afternoon Show – 21 August 2018
Tuesday, 21 August 2018
CS – Chris Smith /JM – John Mann /C1,2,3, etc – Callers
CS Well, one of the most famous families in Australian racing is in the Courts – A legal battle has begun between three of champion horse trainer, Bart Cummings’ four children over his multi-million dollar estate following multiple unsuccessful attempts to settle this dispute. It has made its way into the Courts and it looks like getting quite messy. Because while one of them wants the estate dividing to Bart’s Will, the other two aren’t happy with that, so what happens in these cases? Perhaps you’re caught up in dispute over an Estate, get your questions out ready to be answered on the open line. 131 873. This is our Legal Matters segment brought to you by Turner Freeman and Turner Freeman Lawyers have provided a $100 Westfield voucher to give away to one of our callers between now and 2:00 pm. I’ve got a $100 Westfield voucher. Let’s go straight to John Mann, who’s an accredited specialist in Wills and estates and property law. He’s based in Turner Freeman’s Penrith office but also sees clients at Windsor and Gloucester offices as well. Turner Freeman have offices in Sydney around Wollongong and also in the Gold Coast and Brisbane. G’day there John. How are you?
JM I’m well thanks Chris. How are you?
CS Good thank you. Now the Cummings children have ended up in front of a Judge following repeated unsuccessful attempts to settle the dispute. It seems difficult to understand how once you’ve got a Will that dictates where – you know – his legacy is distributed and how it is distributed. You’d think that that would be the end of the matter, but it rarely is.
JM Well that’s quite right Chris and today also in the past, there ‘s a fair consciousness that makes the community about the possibility of a challenge to a Will. Now these rights have existed for many years but they’ve been fine-tuned by Legislation to what we now have and what’s called a Succession Act which…… part of which relates to what we call Family Provision. Now Family Provision is a means by which a person and that person has to be eligible and in this case – it’s children so there’s no question about eligibility, can make an application to the Court. If they think that there has been no provision or no adequate provision made for them by the Will, that’s the basic principal, it’s a statutory right, but today it seems to be coming more and more common, I suppose probably because the value of people’s estates is increasing.
CS Well Bart Cummings’ case, it would be a large sum of money, but I wouldn’t have thought that any of his children would have been destitute.
JM Well, I wouldn’t have thought not either Chris, but I don’t know what’s in the material that is before the Court, that’s what Justice Hallin is now going to have to decide as to whether any of those claims by the children who so their disaffected, is going to succeed because that will depend – let’s put aside what’s there – let’s assume that there is probably a large pot of money there – but what each of them have individually, what their future needs requirements might be, and the competing claims between the children – they’re the primary issues that the Judge is going to have decide.
CS So this fourth sibling, what – or of the siblings that want to take action and dispute the will, how long do they get to do that and how do they go about the process?
JM Technically, any claim has to be brought within twelve (12) months of the date of death. I would expect that a case like this is probably brought within time, although I don’t know, and what’s happened is that they have been trying to settle it one way or another between then and now and that hasn’t come to fruition, so they have now gone back to the Judge and say well unfortunately it’s going to have to be a contest, you’re going to have to decide.
CS So the siblings have also commenced legal action against the executor of the Will but isn’t the executor simply following the wishes of Bart’s Will?
JM Precisely. It’s the duty of the executor to uphold the Will. The executor in a legal sense represents the deceased person and it’s their obligation if they can’t get the settlement, of course they are authorised to do that, but if they can’t then the executor themselves becomes the defendant on behalf of the Estate.
CS Right okay. Let’s go to Jimmy who’s got a question for you. Jimmy – John Mann is listening – go ahead.
Caller 1 – Jimmy
Jimmy Hi John. Hi Chris.
Jimmy How do Wills work with relation to adoption where there’s no question of the biological link, maybe you’ve never seen or met or heard of either the parents or the child and one party or the other passes away and in that 12 months somebody finds out – oh yes that’s my son that passed away or the sons or daughter find out that’s my blood parents who have passed away. Would they have a claim notwithstanding they might never have even had contact?
JM That’s a good question. The general proposition is that if you are adopted and when I say adopted, I mean by a formal Order of the Court, it is as though you are the biological child of the adopted parents. So an adopted child is your child just as much as the biological one.
CS So therefore has as much as right to what would be in the legacy of the family as those who are biologically connected.
JM Precisely, but quite the opposite in the case of the adopted child’s biological parent.
CS Ah ha. Okay – So opposite in those cases. That’s interesting. Jimmy thank you very much for your question. Dianne – go ahead.
Caller 2 – Dianne
Dianne Ah yes – Good afternoon – just a question. Similarly to that last one. It’s that not within the case adoption but if there’s an estrangement whereby a person has never met the father or a parent, how would they know and they would be entitled by all purposes to a Will – how would they find out about a person passing – you know – how would they know to even apply?
JM Well again, that depends on – precisely on what the facts are there – if they don’t know – they don’t know and if no-one tells them, that may well be the case – they might spend the rest of their life not knowing what’s happened. But if the person who has died is their biological parent, they do have a right to bring a claim – this has happened in a couple of quite famous cases recently.
CS Even after the 12 months has elapsed?
JM Well the Court can allow applications to be brought out of time but the problem is once the 12 months is gone by and the Estate is being distributed which the executor is entitled to do if he is not on notice of a claim, then for all intense and purposes, giving leave to bring a claim out of time would not be of much help because the people no doubt have received their money and spent it and there would be no way you can get it back.
CS Oh okay. Dianne – a supplementary question?
Dianne Well just one thing – if a person wasn’t but they are entitled to it – you know – say it was another relationship and they are definitely entitled, how – so they would just miss out would they if they are not told? Is there any way they can look it up or be mindful of a passing of someone?
JM Well that’s a question that – how long is a piece of string – it’s something either they know or they don’t and as I say they might go through life without knowing at all,
Dianne No – if they no contact.
JM Maybe someone in the family might tell them or they might see it in the paper or something of that sort, but if you’ve completely lost contact or someone might be living in another State or another country, you just wouldn’t know.
CS Yes – that’s interestingly. I’ve got to take break right now but we will come back with John Mann and our Legal Matters segment brought to you by Turner Freeman.
Legal Matters segment brought to you by Turner Freeman, John Mann is with us. Andrew has a question – go ahead Andrew.
Caller 3 – Andrew
Andrew Yeah. Hi Chris. Hi John.
Andrew I’ve got a situation where I’m married and it’s I suppose a second marriage and there are two children in each marriage and one of the children was lent some money a while ago and what I want to do is make sure that the other siblings get that amount money in the case of our death and the Estate will be left to all the children in equal amounts – can I then say I want to take $100,000 out of son number 1 amount and give it to daughter number 1?
JM Yes – that’s a possibility. The question is firstly whether it’s a gift or a loan. Now loans by their nature are to be repaid so that it is quite possible when you die that the child to whom you’ve lent money has to pay that money back into the Estate, that would depend upon what the terms of the loan were. But if it is a gift, then probably the simplest thing is if you’ve got other kids to make a gift to each of them in the Will so that if your figure is $100,000 – you give the other three $100,000 each first off the top and then you divide the remainder by 4.
Andrew Yes it was a loan John. It would then have to go back into the Estate?
JM That’s right. But you’ve also got to be very careful in terms of loans to family of what we call a Limitation Act, because depending on how the loan is made now, it’s documented which is obviously critical can mean that by the time you pass away, the debt is irrecoverable by your executor because it’s barred by statute. You need to get some very detailed advice on that when making your Will or when making the loan or both.
CS Okay. Andrew – I’ve got a $100 Westfield voucher for you mate.
Andrew Oh thanks Chris.
CS Yes – in your skyrocket enjoy it. $100 Westfield voucher. Stay right there mate and we will make sure that we get it out to the right place.
Andrew Good on you. Thank you.
CS Good stuff. Very quickly John, I’ve only got about 45 seconds – our 86 year old mum passed away in February, our dad passed away 3 years earlier – mum left a Will for an Estate of about $50,000. My sister and I are executors. The Will be shared four ways equally with four siblings. There’s no dispute, but Suncorp insist on Probate, which is a large expense. Can we avoid Probate?
JM Not if they insist on it because that is the only way that Suncorp can officially get a receipt from an executor for the money, so unavoidable unfortunately.
CS All right – good on you John. Good to have you on the program today – thank you very much for answering these questions. Good stuff.
JM Thanks Chris.
CS John Mann from Turner Freeman Lawyers – you can go to the website turnerfreeman.com.au – their NSW number 1300 237 112 – in QLD 13 43 63