Wills and Estate discussion on the Chris Smith Show
Wednesday, 4 November 2015
CS – Chris Smith/JM – John Mann /C1,2,3, etc – Callers
CS Don’t forget Turner Freeman have their Legal Matters segment in your local newspaper. You can have a look in there for all the subjects that they cover in their business and on top of that we have a $100 Westfield voucher to hand out again to the caller of the afternoon. We are talking wills and estates once again. If you have a question for John Mann who is in the studio right now. You can call John on 131873 but you’ve got to get in early and I will be giving away that $100 Westfield voucher as we normally do. So jump on the open line right now. John – thank you very much for coming in.
JM G’day Chris – pleasure to be here.
CS Rain coming down…. significantly this afternoon.
JM It’s good – it’s good to see – as a member of the RFS – we are never unhappy about seeing rainfall.
CS Yeah – and apparently today and I’ll try and get something from the Bureau about this but apparently today it is falling in some of those partially drought affected areas in New South Wales.
JM Well that’s good news.
CS Yeah – absolutely. Okay – at what age do we have to think about a Will John?
JM Once we are an adult basically. We never know what’s around the corner. I’d imagine if you were like what I was when I was 18, I didn’t have 2 bob but nevertheless when you start work, these days there are superannuation issues, so I think once you’ve reached a legal age, it is a good time to have a Will. It need not be difficult or complicated at that time. Quite often it is something that might favour your parents or your brothers or sisters.
CS And what are the most important things to include in a Will?
JM Well, the first thing is your choice of the executor, that’s the person who is going to carry out your wishes. That’s a very important consideration. Beyond that, it’s probably better to keep what you provide in your Will in rather general terms so that you can say whatever I’ve got, wherever it is at that time. Because things may be happening that you are not aware of. There might be an inheritance coming from another part of the world…. that ticket in your pocket might be winnings -a bit of money in Lotto or whatever the case may be. But at that stage, unless you do have something very specific, it is better to keep it in general terms.
CS And don’t be frightened to refresh your Will, right?
JM No – No, the world is different shape today and it’s something that we got to constantly revise. I say to people the best time is when there’s some major event in your life or you turn 21, you get married, you have a child, all those sorts of milestones in your life, it’s a good time to review what provisions you’ve got.
CS Okay, let’s go to callers, 131873 is the telephone number. Brian – go right ahead. John is listening.
Caller 1: Brian
Brian I’m one of seven boys and I’m the last one left and my brother next to me died. He left his estate to the Public Trustees and he died and I was the next of kin and I never even…….. They never even notified me…. He died….. …. legal obligation for them or not?
JM Ah, not necessarily.
Brian Ah, alright.
JM But you say that he left his Estate to the Public Trustee or he appointed the Public Trustee as his executor?
Brian The Public Trustee’s were his executor and he left a million dollars for the Eye Hospital.
JM Well, his money, it’s his choice what he does with it.
Brian Yes, I know that but half of whom it’s from a house that belonged to my mum you know….
JM Well, I mean that depends upon whether it was his to deal with in his Will, unfortunately that’s what’s happened.
Brian Oh well.
CS That’s an interesting point though Brian that you’ve raised and maybe the supplementary question is when do you have an obligation to let other families know when somebody has passed away, or do you not necessarily, but you might do it for less than favourable reasons, right?
JM Yes, that’s possible. That situation received adverse criticism from a Judge where an elderly chap didn’t want his daughters to know he died because he loathed and detested them. But later on when they brought a claim against his estate, the Judge made the comment that he really thought it was something that was more appropriate they should have been notified, even though the death bead promised to his executor was that he wouldn’t…..
CS Interesting. Good on you Brian. That you very much for your call and that’s a really interesting question of notifying other members of the family. John, go ahead.
Caller 2 – John
John How are you doing?
CS We’re well.
John Ah, just a small question. My grandmother passed away about almost 3 years ago and we have never actually found out what happened to her money. So, my mother and my uncle never saw anything from when she passed away, so my aunty. I don’t know how she’s managed to fly my cousins around the world lately…..
JM Did your grandmother die in New South Wales?
John Yes, she did.
JM Did she have property in New South Wales?
John Ah, no – no property in New South Wales, but she wasn’t a poor lady. Even to the point of some very very expensive jewellery that has never been passed on and my mother doesn’t mind herself because she would not rather the arguments but I can’t believe that my grandmother was that poor to leave anything behind and I can’t explain how my aunty has been able to afford to fly my cousins and her grandkids around the world.
JM Maybe there’s a connection between the two.
JM But unfortunately you may not be in a position to find out what happened. What I can suggest you’d do is to put a search through the Supreme Court of New South Wales to see whether there has been any Grant of Probate of a Will in that name and that’s public record, that may give you an indication of what she’s done.
John Yeah. I thought there has to be some way of finding out what happened.
JM Because other things may have happened you see, she might have given away her property before she died, anything could have happened. It’s very hard to know the situation like that.
John Yeah – not a problem. Thank you so much.
CS Good on you John. We’ll take a break. John Mann here for Turner Freeman and we’ve got that $100.00 Westfield Voucher to give away and we’ll take your calls on wills and estates right after this.
CS And the highly effervescent and colourful masterchef himself Matt Preston to join us after 2:00 o’clock as well. 131873. John Mann from Turner Freeman here taking your calls. Mary, go right ahead, John’s listening.
Caller 3 – Mary
Mary Oh John, I was wondering a grandmother, let’s put it like that, passes away and she only….. her only son has already passed away and she has one grandson but she leaves her money to someone who isn’t related at all, does the grandson have any claim?
JM Possibly. There is provision in the family, Provision Act or the Succession Act where a grandchild who has been dependent on the deceased
Mary Yeah – well no he hasn’t been
JM ………. financial support, he is eligible to claim.
Mary He hasn’t been dependent on them.
JM Well, that section was basically an Act to cover the situation where grandchildren have been brought up by their grandparents, but the answer is, if he has no financial dependence, even though a grandchild, the answer is no.
Mary Well, what would the situation be if she changed her Will when she was 98 years old?
JM The question of whether she’s got capacity used, depends on all the surrounding circumstances. Just because you’re 98, doesn’t mean to say that you have capacity to make a Will, obviously when someone reaches that age, as a practitioner you’ve got to be very diligent and very careful about what you do.
JM But nonetheless, there’s no reason why a person at that age doesn’t have capacity, I mean……..
CS And some lawyers will demand a geriatric psychological review of the person…..
JM Oh yes, quite frequently…. um but it is quite feasible for somebody who is diagnosed with Alzheimers to still have capacity to make a Will, provided they can fulfil the capacity test.
CS Okay, let’s move on 131873. Geoff, go right ahead.
Caller 4 – Geoff
Geoff G’day, I’ve already had a Will done, but I just want to make sure that a previous partner, I’m protected from her making a claim against my Will in the event that I die, if she’s been cut out of the Will.
JM Sure, when you parted ways with her, was there a property settlement?
JM Okay. Now a former spouse is eligible to claim a deceased’s person’s estate, there is a special category for it.
CS And we saw that in the Richie Benaud case only recently, which is in Court at the moment.
Geoff Which is what raised my concerns…..
JM But the former spouse would have to show what’s called factors warranting which is a rather nebulous legal concept but it being something like why should the Court make provision for her ahead of the other people that you’ve chosen and it is probably more worthy of receipt of your estate. She can bring a claim but if there has been a property settlement then she has an uphill battle.
Geoff Ah, good. I just wanted to make sure that the kids were all covered and my future spouse and that sort of thing.
JM Yes, well you’ve done the appropriate thing.
CS So have you got as much as Richie Benaud have Geoff?
Geoff I wish.
CS A $100.00 voucher to you mate. A Westfield voucher.
Geoff Thank you.
CS Stay right there Geoffrey, if you can. 131873. Mary, question for John – go right ahead.
Caller 5 – Mary
Mary Oh – hi. I have a million dollars in my assets. I want to put…. I’ve got two children and I want to put my assets $20,000.00 for one because one’s a bit nasty to me and I’ve heard something on Dateline – SBS show that whatever I put in a Will might not be carried out. The other one might contest and end up getting some from the one that’s going to get the rest of my estate. So how can I stop them contesting it, or you can’t?
JM Well you can’t. The child’s rights to claim for provision is a statutory thing that’s given to us by our political masters and you can’t take that away. The only question is what can you do to be defensive in a situation like this and obviously you’ve got to make your Will in such a way as you want it to, but the child that you’re least favouring, you should at least make a written statement to go with your Will as to why it is.
Mary Yes, the person was nasty – you know – defamation.
JM Even then, that needs to be looked at very carefully because whilst it’s all very well to say that my son doesn’t talk to me, if it can be demonstrated that your son doesn’t talk to you because of what you did to him.
Mary No – he did it to me.
JM Ok but what I’m saying though is, you have to be very careful in analysing the situation but if that’s what you want to do, that’s what you’ve got to do, but can I suggest strongly that you make a written record of why.
CS Yes a written record of why, which is a good bit of advice. John I’ve run out of time. We’ve come at a good array of subjects that in that little section. Thank you so much for coming in.
JM Thanks Chris.
CS Alright, from Turner Freeman, our Wills and Estate segment with John Mann and don’t forget we’ll get back to Tuesdays next week. Only had it today because of the Melbourne Cup yesterday, but back to Tuesday for Turner Freeman.