Q & A on 2GB discussing Wills and Estates
Tuesday, 2 February 2016
CS – Chris Smith /JM – John Mann /C1,2,3, etc – Callers
CS Yes, this is a chance for you to ask a question of a lawyer for free. I know. It’s unheard of. But this is what we have been offering for many years on the program on Tuesdays. Turner Freeman Lawyers, very happy sponsors of the show. John Mann is in the studio and John’s a legal expert especially when it comes to wills and estates and today we are going to shed some light on some of the responsibilities and things to look out for if you are an executor of a will. Now if you’ve got some related questions, not necessarily need to be related to being an executor of a will but something related to wills and estates, jump on that open line right now 131873. Don’t leave it too late though because so many people miss out by leaving it until the end of the segment. 131873 and on top of that we’ll choose one of our listeners and one of our callers this afternoon to receive a $100 Westfield Voucher to spend at a Westfield’s store courtesy of Turner Freeman Lawyers. One caller will receive that and remember to pick up your local newspaper too because many local newspapers in your area could be running the Turner Freeman Legal Matters column where they cover the entire gamut of legal topics, compensation, negligence law, family and employment law, wills and estates, superannuation disability claims etc. All covered in some of your local newspapers so look out for all of that. John Mann welcome to the program.
JM Hello Chris.
CS Good to have you here.
JM Yes thanks for having me here…..
CS I want to go back to something that is very very serious and important, the vuvuzela. Now I don’t know whether you’ve seen a vuvuzela in action but they are extremely annoying. So much so that this isn’t the first time that we’ve heard of a vuvuzela being taken from someone’s hands and thrown away. In this case it was thrown into Sydney Harbour on Sunday and that’s why because it went on and on and on. Now if I had a vuvuzela pointed at my nose and I asked this person to put down the vuvuzela and she continued, it would such an……… I don’t know ….. I was about to say intimidating, but maybe not intimidating but it would almost be an offence wouldn’t it to treat someone in that fashion?
JM Well, from what I’ve heard of the version of it this morning Chris, when she was asked to stop she pointed it into a lady’s face and blew it. Now that I think is very close to an assault because at that range, I mean I know what they are like. My son brought one home from the World Cup.
CS Did he?
JM And it disappeared very quickly.
JM He didn’t even get a chance to play the last post on it.
CS Hahaha – Fantastic. So you’ve got intimate knowledge of the vuvuzela.
JM Oh yes I……. the like.
CS Have we got an expert and a half in the studio this afternoon? It didn’t last the duration at your joint. So, if you are feeling somewhat uncomfortable, annoyed over a long period of time, do you have the right though to take it off someone?
JM That is a very debatable question. Something like that where it’s such a nuisance as it might actually causing people’s ears physical damage, it is possible at close range I would have thought. It might be a matter for self-help. I mean technically the fellow that grabbed it, that might be considered an assault. But I don’t think that would go very far..
CS Well it didn’t go very far because the police decided not to pursue it and they had taken and heard some information from others who were travelling on the ferry to say it was something that they were considering doing anyway.
JM Yeah. And it might also be a malicious injury to the vuvuzela itself because I suppose she’s the prized owner of it and to an extent destroyed it. I don’t think there’s too many legs on that one either.
CS Oh mate. I’d hate to have been there. It would have rather been a confronting little scenario. Anyway. Vuvuzela’s. We’ll go from vuvuzela’s to some serious legal questions about wills and estates and no matter where you are ringing from you can pick up the telephone and dial 131873 and speak with John Mann. John is listening to you Dorothy. Go right ahead.
Caller 1 – Dorothy
Dorothy Oh good afternoon John. I have a query. We have wills and power of attorneys done. The wills have been renewed and they are in my daughter’s married name. Now the power of attorney is in her maiden name and should we change those into her married name?
JM Not necessarily. She’s still the same person. If identification is a problem, the simplest thing to do is to just make a short statutory declaration of the date of the marriage and what her name now is, but you don’t have to change the document, no.
Dorothy Oh, okay then. Thank you very much.
CS Good on you Dorothy. Paul. You have a question for John – go right ahead Paul.
Caller 2 – Paul
Paul Yes – John, my mother died just recently. She was in a nursing home. She’s DVA. Assets – Total assets are probably under $2,000.00. No bank account. The nursing home had all the pension paid into there. What do I do? Who do I notify? Do I have to notify anyone?
CS Good question.
JM Good question. Does she have a will?
Paul Oh yes.
JM And who are the beneficiaries of that?
Paul Just me.
JM Okay. Well look in a situation like that there’s no other person to whom you are responsible and if her assets are available as cash, then you might as well just distribute them to yourself. There is no consequence or duties or anything else like that and you are the only person who can give yourself a receipt so I think that’s the simplest course.
Paul So there’s no legal requirement to notify anybody else.
JM Well I would notify DVA of course.
Paul Oh, yes, yes yes. That’s sufficient then?
JM Beyond that if her assets only cash then there’s no-one else to notify.
CS All right Paul.
Paul Thank you. Right o.
CS Thank you for your question. Sonia. Hi.
Caller 3 – Sonia
Sonia Hello. Hello John. I’m wondering if I can leave my son out of my will. He has not contacted me in over 20 years?
JM Ah, this is the 64 dollar question that comes up every week.
Sonia Yeah – I know.
JM The answer is, it’s problematic in leaving them out altogether. We’ve recently had a decision of the Court of Appeal which have vindicated a person leaving their son out of a will but there were circumstances that had made it easier for the Court of Appeal to make that decision. The better advice is to make some provision for that child, not necessarily a lot, and I don’t mean a token amount like 2 bob. It has to be something significant.
JM That and in conjunction with your will you must make a recorded document for your executor setting out precisely why you were doing what you are doing for that son. Because you won’t be there to defend the claim when it comes or if it comes.
CM You’d rather go the 2 bob route, wouldn’t you Sonia?
Sonia Hahahaha – that would be wonderful. I mean I’m quite cross.
JM I know but the law says that for a son, it’s not a question of no provision, it’s a question also of no adequate provisions so that’s the thing you have to consider.
Sonia Yeah. Damn, damn and double damn.
CS Sonia, but I have a $100.00 Westfield Voucher you could take and then pass on to him. Maybe that’s enough for him?
CS A $100.00 voucher for you Sonia.
Sonia Okay. Thank you very much.
CS You and John have supplied us with a good laugh. Good on you. Stay right there.
JM Can I say this too Sonia that in your situation, it may still be possible to make your will excluding him but you need to go through that with an expert and they’ll give you advice as to how best to do that.
CS Fantastic. Now before we get back to calls. The executor of a will. Now what issues do executors face that they may not be aware of when they are approached to become an executor?
JM The executor represents the deceased person. Their function is three fold. The first is to get probate of the deceased person’s will. To pay their debts and to distribute the estate according to the terms of the will. One of there….. there are a number of traps and it might happen for executors, some things you have to keep an eye on are taxation issues in a deceased estate where tax has been assessed and it’s a debt that the deceased tax payer hasn’t paid. That’s the responsibility of the estate.
CS So could you…. in trying to pay debts off that may have accrued, is it in your power to go and see a financial planner to say :”I want this debt to be paid off based on what she’s got or he’s got, but how do we put it in a deposit where we can actually grow the money and eventually pay the debt off. Do you go as far as that?
JM Well that is possible.
CS Right okay.
JM But is less likely than not. Most of the time the beneficiaries want their money. If there’s not enough money in the estate to pay the bills then there is a formula in the Wills, Probate and Administration Act which can be applied as to what order assets can be applied to pay those debts.
CS Ah ha. Now I see.
JM But also it is open to an executor to nurse financial matters back to health and we’ve had estates where things like the collapse of some of these financial companies over the years. The moneys come back in, in dribs and drabs and the executor’s been able to distribute it as it comes through.
CS And the executor doesn’t take the debt on board his or herself right? They don’t accrue the debt from the person that’s appointed him or her to be the executor?
JM No but the executors are responsible for its payment.
CS Right okay.
JM And the…. sorry if I could just make this point too Chris. Any tax matters that might be owed by the deceased person become a debt of the estate but any tax liability after the person dies is the personal responsibility of the executor.
CS Right okay. All right. So it’s something that you need to need to know a lot about if you’re being approached to become an executor of a will. 13 minutes to news time. We have got a little over 5 minutes remaining of our Turner Freeman Legal Matters segment. Wills and estates on the agenda this afternoon with John Mann. Rod, you’ve got a question for John. Go right ahead.
Caller 4 – Rod
Rod Thanks John. My cousin was given power of attorney over my mum’s estate…. well before she died. He was…… he sold the house and all her assets and put it into a bank account. He was then found about 8 months before mum died on Boxing Day that he was spending the money for himself.
Rod He left about $60.00 in the account by the time I got there and got power of attorney and I found out that he’s got $60.00 left. Mum died on Boxing Day, what do we do?
JM Police. That’s possibly the only thing you can do because if he’s the attorney it’s not his money, it belongs to the person he’s the attorney for and if he has wilfully taken it like that and spent it on himself or whatever, that would be a matter for the police but whether you can get them interested is another matter.
Rod Exactly right. I went down to the police station and they said it is a civil matter and you’d have to sue him for it.
JM Well, I don’t agree entirely with that but that’s the view the police are entitled to take but certainly for a civil matter, yes you can…. well whoever your late mother’s personal executor is have a right to sue him to recover the money, but if he hasn’t got it, it might be a bit of a fruitless exercise to chasing rabbits down holes to try and get the money back.
Rod Exactly, he’s got no assets. He’s renting. He’s got nothing. So just do I just go through the exercise of calling it fraud and getting the fraud squad?
JM Well, I don’t see any reason why you can’t make that approach because as you say it’s not his money and he is not entitled to take it.
Rod Well at least if he gets into jail, that’s one way of getting something back isn’t it?
JM Well that’s a matter to take up with the police.
Rod Yep. Okay.
CS Okay, all right Rod. Thank you. Sometimes in these situations it’s also advisable to move on.
JM Yes – because you might just spend another small fortune chasing the money. When a person signs a power of attorney. Part of the advice given is that if they lose capacity the executor can nonetheless continue…… attorney I’m sorry can nonetheless continue doing things for them with their property and you’ve got to advise them that in a situation like that it’s very much a question of trust that they will do the right thing by you. The law says they have to but whether they do in practice is another matter.
CS Sad lesson. All right Nick, you’ve got a question for John, go right ahead.
Caller 4 – Nick
Nick Oh good day John. First I want to say how important these shows are and this information …..
CS Excellent. Good to hear mate. Thank you very much.
Nick My father…. sorry, my uncle passed away recently and he left his sister, being my aunty as his executor. Unfortunately she’s elderly, she’s interstate, she’s finding it hard. She wants to try and transfer as executor to another member of the family. Is that a normal process that can happen?
JM Well an executor doesn’t have to take probate of the deceased person’s will. They can as we call it renounce. Now if she says she’s not up to doing the job of being an executor, she’s perfectly entitled to renounce. What happens then is generally that the beneficiaries under the will can make an application for what they call Administration with the Will Annexed, they then deal with the same trust of the will as the executor would have.
Nick Okay. All right.
JM But she can’t designate another executor. That’s a matter for the deceased person.
CS Okay Nick – thank you for your question. Can we squeeze Bill in? I think we might be able to. Go on Bill.
Caller 5 – Bill
Bill G’day guys. Last year you talked about Richie Bernaud’s ex wife – you know having a go at his will.
Bill I’ve got a similar problem but I’m not dead yet.
CS That’s good Bill.
Bill And I’ve got two ex-wives and two nice lady friends. How do I do this before I croak it?
CS Are they fighting already Bill?
Bill I beg your pardon?
CS Are they fighting over your assets already?
Bill No, not already but I think they are going to.
JM Did you…. your two exes when you parted ways. Did you have a property settlement with them?
Bill One yes – the other one no.
JM Well the one that’s had the property settlement has more difficulties than the other.
JM But if you have a current spouse when you pass away well her needs are undoubtedly priority to everybody else. Where you have a former spouse they also have to show what is called factors warranting, which means in rough words that why should the court upset what the will says in their favour…. they need a very strong claim to do something like that. So if you have a current spouse, her claim would be very hard to defeat by a former spouse.
Bill Right. So when you say current spouse, not necessarily a wife?
JM No a spouse….
CS But at the end of the day Bill, as we have discovered in Richie Bernaud’s case there’s always the possibility of an application by law.
JM Oh yes, we can’t take that away.
CS Yeah exactly.
JM But the matter of fact is ……. of course the other thing is if you whether you have a wife or a de facto to make a will to make sure all those provisions made for them in the will….
CS For them. Exactly. John. We’ve run out of time thank you so much for yours this afternoon from Turner Freeman. John Mann.