John Mann providing Q & A on the 2GB Chris Smith Afternoon Show – discussing Wills and Estates – 26 April 2016
Tuesday, 26 April 2016
CS – Chris Smith /JM – John Mann /C1,2,3, etc – Callers
CS Just before we get to John Mann from Turner Freeman Lawyers and before we get to your calls on 131 873, we’ve got an accident to report. Quite a pile up on the Hume Highway. Bruce – tell us what’s happening there.
Bruce How are you Chris?
CS Very well.
Bruce It’s a three car pileup on the Hume Highway at Liverpool. It’s only just happened. The ambulance has just turned up. There’s no coppers, there’s no tow trucks – no nothing… Ah – it’s a pretty [narley] one. At the end of the day it’s going to be a big bank up of traffic in the next hour or so…..
CS Okay. So is it north of Liverpool or south of Liverpool heading to Campbelltown?
Bruce Yes it’s south of Liverpool heading towards Campbelltown.
CS All right and it’s southbound?
CS Southbound – three car pile-up – just for those that are coming maybe into Liverpool and are thinking of heading there for Casula – that’s where you’ll find the problem. Thank you Bruce – much appreciated. 131 873 – time for our Turner Freeman Legal Matters Segment. We’re talking wills and estates today with John Mann – this is a very popular topic listeners – so if you’ve got a question – get in early and I’ve got that $100 Westfield voucher to give away as usual – as we do between now and 2 o’clock to the caller of the afternoon. John Mann – welcome to the program once again.
JM G’day Chris.
CS They’ll be getting you an office here soon mate….
CS It’s good to have you here.
JM Good to be here.
CS Just before we get to callers – what are things people typically forget to include in their Will?
JM Well depending – if they usually see a professional – they’ll be prompted the various things they need – you are probably more likely to strike trouble with homemade Wills where …..
CS Right – things that people do themselves – yep.
JM The common mistakes are they don’t appoint an executor or they specifically give away bits of property and then forget what we call the residue which is a general gift of whatever might be left over and specific gifts of property of various sorts can be very very tricky because if when you die you haven’t got them or doesn’t answer the description, the gift fails.
CS Right. What about if there’s an incumbency of these gifts and you say you want to give the house to a certain person but of course there’s a $40,000 mortgage that still exists on the property. Is that mortgage now in the hands of those that have been gifted of that property?
JM Yes – you must be very specific about those things. The Conveyancing Act tells us that where you inherit the property – you inherit all the charges that go with it – that would include the mortgage, whether it is registered or not – that would include the rates and the water rates and the other property taxes.
CS Right. My father said to me when I got my first car and I was just about to get a property – I was looking at a property – he said get yourself a Will at the same time. I was 27 years of age – is that about a good time?
JM Well really – you’ve got to start thinking about that when you’re 18. That’s when you become legally able to make a Will – well there are extraordinary circumstances before that time but generally for us it is 18.
CS Okay – you 18 year olds – did you hear that – 131 873 – Robert – go right ahead – John is listening.
Caller 1 – Robert
Robert G’day John and Chris.
Robert I just wanted to ask about enduring power of attorney. I want to change the one that I’ve got because my kids have grown old and I’m going to have my kids as enduring power of attorneys. Is that okay to do?
JM Of course. All you need to do is to revoke the existing one – that is generally done just by a letter saying to the Attorney that you as from this date the Power of Attorney is revoked. But the most important part of that is notice – giving them notice that you’ve revoked it – then you just go ahead and make another one.
Robert Okay – thank you.
CS Good on you Rob. Hopefully we’ve been helpful. 131 873. Lorraine – go right ahead.
Caller 2 – Lorraine
Lorraine Oh good afternoon. I was ringing to make an enquiry – I have two sons and we are very estranged. We have not spoken for 16 years and I wondered if they can make a claim on my estate?
JM Yes they can. As your sons they have a statutory right to do so.
Lorraine But they’re independent – they work and they keep themselves. I don’t have to contribute to their welfare in any way.
JM Whether or not you make provision for them is quite a different matter. This is a very vexed area of the law where you have adult children who are in some way estranged from you. There are cases that say that you give them nothing – there are other cases that say you give them something. My recommendation is considering their circumstances unless if course they are multi-millionaires to make some provision for them rather than none – because none is almost certain to invite a claim.
CS Lorraine – do you have a Will?
Lorraine I do have a Will.
Lorraine And my Estate is reasonably substantial. So at this point they made that decision – not me. I had ill health and to be honest – the problem was I didn’t die on schedule and they let me know that.
CS Oh no.
JM I appreciate that but could I say this as what will be very helpful to your executor is if you made a written statement as to why you have only made small or no provisions for your sons because when the case comes you won’t be there to defend it – your executor will and written documents that set out why you’ve done that are admissible in the court proceedings and be quite important.
Lorraine All right and thank you very much for your advice.
CS Good luck with your writing Lorraine. Thank you very much for your call. 131 873. An interesting situation. I get the feeling that Lorraine and maybe many others like her think that if someone is estranged from them they have no entitlement to what they have – it’s not stated in the Will – that is not the case.
JM Not necessarily – no.
CS Okay – Mary – go right ahead.
Caller 3 – Mary
Mary Oh hi. My sister has recently changed her Will – she’s got terminal cancer and she’s 75 – what’s happened is she left everything to my children because she has nothing of her own and all of a sudden this friend came up from down south and she took it to a solicitor and she just changed it. Is she allowed to do that without a doctor’s certificate or anything? She’s 75 and she’s only got possibly, 3 weeks at that stage. Is that legal?
JM That’s – well if she has capacity to make a Will and understand there what she is doing – of course it’s legal – it’s her Will – she can do what she likes with her property. The only question is whether she has the capacity to cancel her previous Will and make a new one. That’s a difficult judgment to make – what we are talking here – but just because somebody is 75 – it doesn’t matter if they are 75 or 105 – they can still make a Will provided they have got the legal capacity to do so.
Mary Right. Okay. I thought that – yeah……. Okay thank you very much for your help.
CS All right Mary – thank you for that – I want to ask about something that I saw in Monash’s Local Newsletter today. There’s a piece on elder abuse – financial and emotional elder abuse – something we touched on I think about 3 weeks ago on the program.
CS And they highlighted the fact that it was on the rise. Do we see – do you encounter many cases of elder abuse related to Wills and Estates?
JM It’s not necessarily common but it’s happening. The people who are appointed as attorneys generally speaking do the right thing and their duty is to act in the best interest of the person who appointed them, but unfortunately there’s always a bad apple everywhere and they’re the ones who puts mum’s money through the poker machines or whatever else because they have the legal access to it. Whether it’s on the rise – I really couldn’t comment – the person making a Power of Attorney should be warned by the solicitor that the person they are appointing may be doing things with their property at a time they are no longer in control of the situation and this is the whole essence of what we call an Enduring Power – it endures our disability – so that they may not be in a position to prevent these things happening and it’s very much a question of trust who they appoint.
CS Yes I understand that. From Brisbane – Steve – go right ahead. John is listening.
Caller 4 – Steve
Steve Yeah mate – I’ve got a house split up between me and my sister. Mum’s still alive and she’s moved into the house and she was left a certain amount of money when mum passes but that’s all been spent and plus she’s had hundreds and thousands of dollars in there and she’s been cycling it out and there’s nothing left and it’s supposed to be between the two of us and the house is between the two of us when mum passes – it’s only me and her and she’s moved in and taking care of my mother – I just want to know you know – can she do any more damage – you know – taking the house whatever? And the solicitor that we signed over – we are both Power of Attorneys but you know – it doesn’t matter – anyone can sign the cheques and that but I didn’t know – she kept on taking money out and money out and there’s nothing left now and …… basically she’s moved in with mum and yeah – I just want to know what to do? And we are both Power of Attorneys and the solicitor that we signed up to he’s since passed away.
JM Are you in New South Wales or Queensland?
Steve Queensland mate.
JM Well I can’t tell you with absolute certainty in Queensland but I would expect that the law would be very much the same but an Attorney in Queensland has a duty to act in the best interest in the person who appoints them. I personally take your view that if someone siphoned their mother’s money over for their own benefits that’s a matter for the police. Unfortunately it’s very difficult to get them interested. I would suggest that you make an application for financial management for your mother’s affairs before anything goes further because under the Power of Attorney you’d probably would authorise your sister to sell the place but I can’t tell you precisely without seeing the documents.
Steve Yeah – But she’s living there with mum taking care of her – but she goes to work and comes home – mum stays there all day you know.
JM Well I don’t know – I can’t comment on that.
Steve Yeah – Yeah – but um….
JM It’s your mother’s money not your sisters.
CS He can make an application via how?
JM Well I’m thinking presumably and this is something I need to check – there’s probably an equivalent of a Guardianship Tribunal in Queensland as there is in New South Wales who can take over the management of people’s affairs where they think they are being exploited.
CS Okay – all right good luck with that Steve. Tough situation to be in. We’ll be back with Legal Matters right after this. 131 873.
CS I’ve still got that $100 Westfield voucher to give away and we are talking Wills and Estates courtesy of Turner Freeman and you can dial right now for some solutions to your problems on 131 873. Just in terms of guardianship information – guardianship advice – you can go – if you are in Brisbane to the Queensland Civil and Administrative Tribunal. The Civil and Administrative Tribunal. Paul – go right ahead – John is listening.
Caller 5 – Paul
Paul Hi John. My situation is my father died in Victoria and he had a Will but the Will was actually made out 4 years prior to getting re-married after my mother’s death several years ago. Now he mentioned in the Will – I leave this – I bequeath this to my partner – does that – is the Will still valid is the first question – Secondly if everything has been put in her name or sorry – joint name – can we still contest the Will? And they are still sorting out the assets at the moment because there is like about 30 acres sold to a developer and that’s – you know they are still assessing the value of it – Ah – yeah – and I just want to know about the validity of the Will and whether it’s basically – have we got a – there’s four kids – do we contest it? Can we contest it?
JM Um – a bit of an interesting mix. The general situation is where a person has a Will and they subsequently marry – the marriage cancels the Will. That’s the general position and it depends on how the Will was drawn up. If the Will is expressed to be in contemplation of the marriage – it can still hold up but the general rule is that it is revoked by the marriage.
Paul Yeah – well he hasn’t – there’s no mention of we will get married or whatever – it’s just he got married 4 years later – why they got married? I don’t know – because they have been living together for over 10 years and all of a sudden we find out they got married and there’s…. I think there is going to be a large Estate there – so I just – I suppose I want to know if I can – whether it is worth contesting and if she’s – and also my father was a bit vague and everything – I was told that he got diagnosed with dementia and then they said no it was a little stroke and you know – this is what I am getting told at the basically – about a day or two before the funeral and I’ve been saying to my step-mother – who’s been vague for about 4 years.
JM The difficulty there is whether he’s made a Will since the one that he had that was cancelled by the marriage. Now everything I take it is in Victoria.
JM That’s a different jurisdiction than New South Wales and they have different rules. If the property is jointly owned in Victoria, there might be some difficulty in it being brought back into the reckoning for a claim but I suggest that you take advice from a Victorian solicitor – practising in this field as to what precise yours and your sibling’s rights will be.
CS Paul thank you very much – but before you go I’ll get you that $100 Westfield Voucher to help you out with getting a little assistance on this one because you are in a bit of a pickle so we will try and help you out with all of that – stay there Paul – I’ll put you through to Jess and we’ll make sure we get it to you. John I’ve run out of time. Thank you so much for yours and thank you for coming in today.
JM Thanks Chris.
CS Good on you. John Mann from Turner Freeman and our Legal matters segment.