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Estate discussion by Turner Freeman Lawyers on 2GB

Tuesday, 28 January 2014

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Luke:         Good afternoon.

Paul:          Good afternoon Luke

Luke:         Did you have a good break

Paul:          Very good, but gee it goes quick

Luke:         It does go quick. Are law firms busy over the Christmas period because you do have families coming together that normally perhaps don’t spend so much time together and cracks appear and disputes I would imagine.

Paul:          It is very true. The first week back after the Christmas break I don’t know how many matters I had in relation to family law issues. People being home gives them time to think about things and all of a sudden, I think I better do something about this that I have been thinking about for the last two or three months, I had better ring. So yes it is very busy time.

Luke:         Of course as I mentioned Paul is here to talk about Will and Estates so if you have a question about that you had better call us now.

Luke:         This morning we were quite taken by a story in I think the Melbourne Herald Sun, it talked about an event happening on Valentines Day and a certain hotel, so save them the embarrassment I won’t mention here, the Brighton Savoy, sending out emails to its mailing list inviting them to come along to dinner on Valentine’s Day. They said bring your wife, bring your girlfriend, bring your mistress. This list was full of people who actually had their wedding receptions there so it probably could have been handled differently, but the point I wanted to raise and given an email that we got about a week or two back related to this is to what extent does the existence of a mistress or the male equivalent have on the estate of a married person?

Paul:          There have been changes which have been in place now for a couple of years now that actually contemplate many not spouses, ex spouses and mistresses being entitled to make claims. The most famous matter being Pratt. We all know that story and I think it is still before the Courts. So if someone has or living with someone, or let’s say mistress financially dependent upon someone she is entitled to put up her hand.

Luke:         is there an equal split or what does it come down to?

Paul:          It depends on the facts of the matter. You can’t say with certainty that one would be treated the same as the other one. You also have to consider whether there are children involved and the extent of the dependency.

Luke:         So the extent of the dependency is the most important factor in that?

Paul:          No, the question of needs is probably will the most important factor but the reliance and the dependency would also be looked at.

Luke:         Okay.

Luke:         First off Paul Ron of Beverley Park, hello Ron.

Ron:          Hello Paul, how are you?

Paul:          Good thank you.

Ron:          Paul I am a returned serviceman from the Second World War and my wife and I get a part pension in equal amounts. Now I am assuming that the house and some shares are in joint tenant, so I assume that when one partner dies the other gets the whole of those items?

Paul:          It will pass by survivorship, correct. If they are held as joint tenants.

Ron:          Okay, now secondly, my wife has some shares in her name, I have some shares in my name.  Now if one of us dies they are entitled to leave some or all of their portion to a relative without it affecting the pension at all?

Paul:          There are rules about gifting when you are on a pension. I am not an expert in the field but I believe that there are different rules if you are receiving a Veteran’s Pension to those receiving, for example, an Aged Pension. No, I think in an Estate you can give to actually whoever you want, it is whilst you are alive and you are disposing of assets there are rules there.

Ron:          I understand that if I sold $100,000 of shares and my wife was still around and gave the proceeds to a member of the family, they will say you still own the asset.

Paul:          Correct, but I think in a Will you are entitled to dispose of your assets as you wish. I don’t think it will affect your pension entitlements.

Ron:          At a later date no doubt I will be confirming that with the Veterans Affairs, but you believe at this moment that you won’t be affect.

Paul:          Correct actually in hindsight I have had a number of clients and that is part of the Estate administration or advising people about setting up their estates where we have looked at well if I leave everything to my spouse, for example, how is that going to affect her entitlements, should we split the distribution between the children and the spouse.

Ron:          Thank you Paul.

Paul:          That is valid and it works.

Luke:         Thank you Ron for your call. Fred you are up next, what is your question.

Fred:          Hi this is Fred calling.

Paul:          Yes Fred.

Fred:          How are you?

Paul:          Well thank you.

Fred:          My question is I have an uncle who wants to make me the Executor of his Will and possibly the beneficiary of his Will. He has a son. His son doesn’t want to have anything to do with him and makes no contact. What do we do, there is obviously a period of up to twelve months where he can contest the Will.

Paul:          That’s right.

Fred:          Should I bother with all of this and just leave it alone or should I continue with it.

Paul:          No, continue with it. If the Testator wants you, or the person making the Will wants you to look after his estate well, why not. The person is entitled to appoint a person who he has faith in and trust.  He can dispose of his property as he wishes. No, pursue it, because remember a person’s claim there are many instances where people who have not been provided for don’t make claims.  Secondly, even if you are making a claim there is a question of need and other factors that you need to establish. Now the courts look at how good was the relationship, what was the period of non contact, the reasons for the non contact. There are a whole stack of things that the court will look at in servicing an entitlement.

Fred:          Thank you that sounds good. Do you think my uncle should do a stat dec and write in great detail his contact with his son.

Paul:          Yes, that is something we practice in and do. We do collaborative documents which explain the reasons for not and one of the factors is that some people who write their own Wills for example, put great stories in their Will “I didn’t leave anything to so and so because you know for 20 years she did this or did that”, worse thing ever. If you are going to do that do it in a separate document and let the lawyers decide whether they want to use it or not.

Fred:          Does that cost a lot of money doing a second document.

Paul:          No.

Fred:          It doesn’t, like you would pay a standard fee for a Will then you would pay another fee.

Paul:          We would probably include that as part of the package.

Luke:         All right Fred, thanks for your call mate.

Luke:         So people do express their emotion.

Paul:          Yes they do.

Luke:         You didn’t hesitate.

Paul:          I just have one in mind at the moment that said all sorts of…

Luke:         It was beautiful in its ugliness.

Paul:          Yes, so and so left my wife a small pittance but the love of my life my mistress and off he went.  It shouldn’t have been put in a Will but anyway.

Luke:         And I guess you have to be tactful and deliver that sort of business. I mean that is sledgehammer isn’t it. There is no way to be tactful.

Paul:          Yes, that is way I am not a big fan of reading out Wills. Just keep it quiet.

Luke:         Tom is next, hello Tom.

Bob:           Sorry it is Bob, not Tom.

Luke:         Sorry mate, go ahead, what’s your question.

Bob:           My question is my father bought a house for myself 20 years ago and I have been living in it ever since but he never wrote it in his Will when he died and my mother just recently sold that house and I am now fighting with her, not really talking to her, she may cut me out of the Will am I still entitled to a share.

Paul:          She is your mother?

Bob:           Yes.

Paul:          Again it depends on whether you are able to establish your entitlement to part of your Estate and that depends upon the factors under the Act. Because you are son you are immediately entitled to make a claim, whether you succeed in your claim you have got a number of factors or hoops you have to pass through and one of the big things is needs. Right. If you happen to have a few million in the bank I think you are going to have a hard time.  If that’s not the case then you are going to have an easier time.

Bob:           I certainly don’t have any of that. I have brought up three kids on my own in the house and I have been there 22 years.

Paul:          How long did dad pass away. How long ago.

Bob:           About 12 years ago.

Paul:          Because we talk about entitlements under the Family Provisions Legislations. There is an area of law that is growing, making claims based on promises. Let’s assume your case – I am going to buy this house for you if you do x,y,z and you do x, y, z and he happens to leave your house to someone else. There is an entitlement to a claim possibly for you to claim that estate or that property based on relying on those promises and that is a parallel area of the law to entitlements under the Family Provisions.

Bob:           How would you prove that though? It would be very difficult wouldn’t it.

Paul:          Yes, words, documents things like that but twelve years ago you are probably way out of time.

Luke:         All right Bob, sorry mate, thank you for your call, nice to talk to you.

Luke:         Say g’day to Brendan, Paul.

Paul:          Hi Brendan how are you?

Brendan:  G’day Paul, how are you.

Paul:          Good mate.

Brendan:  I have a really quick story. If you have a father who is divorced from your mother and that divorce has long been settled, and then my father then has a subsequent relationship, de facto, they broke up and that is in the process of being settled, but if you are one of the main beneficiaries of his Will, if he passes away during the settlement process, does that affect the distribution of assets under the Will or if the de facto process is settled, so they are sort of completely separated, then he passes away, can the ex partner make any retrospectively claim under the Will?

Paul:          In theory, yes, but in practice, difficult. The entitlements under the Act include former spouses, so the fact that there is a former spouse you are entitled to make a claim. The problem we have is this division of jurisdiction. Family law for example is by the Commonwealth, the Commonwealth enacts the legislation in relation to family law issues and divorces, separations and so forth. Estates are run by the State Government. Now the problem we have, the practical problem, in family law matters we do terms of settlement and we hand them up to the Family Court and the court makes orders and says x gets this and y gets that and that’s it no more, but that doesn’t bind the State Act and often our Family law orders will provide that both parties will join in an application to the Supreme Court to bar any future claims on an Estate. In theory we put them in the Orders, how many applications are made to the Supreme Court for those orders, very few, but in the past I have seen judgments where the fact that there has been property settlements that basically stops you from making a further claim. But it is not to say that it can’t happen.

Brendan: Okay so just if I can ask one related question. If say there is a de facto settlement, you know, before theoretically before my father passes away, and say then he does pass away, say a significant number of his assets passes to me, would the partner make the claim on the Estate or would she make the claim on me personally?

Paul:          No the claim is on the Estate.

Brendan:  So she wouldn’t be able to come to me in the future?

Paul:          It is on the Estate.

Luke:         All right we will leave it there. Brendan, thank you so much for your call.  You are listening to Legal Matters thank you to our sponsors Turner Freeman, Paul here. Taking questions on Wills and Estates.

Luke:         It is our Legal Matters segment for Turner Freeman, compensation can’t change the past but boy it will make a difference to your future, so if you are suffering because of someone else’s negligence you better turn to Turner Freeman Lawyers, Turner Freeman Lawyers are heavy hitters, the type of law firm you need to have on your side to win and they have been winning claims for a long time. When a Turner Freeman Lawyer acts for you they draw on over 500 years of combined experience.

Luke:         Paul you would have some of that 500 years of experience.

Paul:          Yes, I would have a small part of that.

Luke:         The financial and legal resources of a national firm and of course a reputation as a tough uncompromising litigator who won’t rest until they get you the compensation you deserve.  So give Turner Freeman lawyers a call, they have offices throughout NSW and QLD. On the web, simple, turnerfreeman.com.au or you can give them a call, their number is 1800 800 088.

Luke:         They are good people. We meet them often in here and I haven’t met a bad person yet from Turner Freeman.

Luke:         Back to callers. We have a limited amount of time so if we can have just one question and if we can be straight to the point, we will help out as many as we can. Brian we will go to you first.

Brian:        Hi. I am the last surviving boy of a family of seven boys. My last surviving brother died last February. His estate was handled by the Public Trustee, I am the next of kin and they never notified me. Have they got a legal right to notify me?

Paul:          Your brother died.

Brian:        Yes

Paul:          He had a Will? He must have had a Will.

Brian:        Yes he did.

Paul:          He had a Will, therefore I take it you were not a beneficiary.

Brian:        I presume so.

Paul:          And that is why you were not notified. If there is a valid Will the Public Trustee or any Executor is entitled to proceed in accordance with that Will. There is no obligation to tell anyone else what was in the Will unless someone asks. If you ask you are entitled to be given a copy of the Will but there is no obligation on the Executor.

Luke:         Brian could ask for a copy of the Will?

Paul:          Yes, they have changed the law about two years ago and a whole bunch of people are entitled to copies of Wills.

Luke:         There you go Brian Lee at Roselands. Hi Lee.

Lee:           G’day Paul and Luke, how are you.

Paul:          Good thank you.

Lee:           Just wondering how many people can you have as Executors of your Will?

Paul:          Good question. I like to limit it to one or two. There is no limit but the problems in practice, forms have to be signed by Executors. If you have five people or five executors you have to get them all in to sign documents and often that happens at various time. Very messy.  The more people you have the more chance you are going to have a dispute or arguments.  My view is that you keep it to one or two. It is good to have two and it is good to have alternatives in case someone can’t do it then you have someone else.

Luke:         Good on you Lee, we will leave it there. Dean is next. Hi Dean.

Dean:        G’day mate, how are you.

Luke:         Good mate. What is the question for Paul mate.

Dean:        My grandma passed away a while ago and I was a beneficiary. Just wondering if I can get a copy of that Will now.

Paul:          Yes, when you say a while ago.

Dean:        I say ten years.

Paul:          If she passed away and she had a Will was the Estate handled under Probate?

Dean:        No she had a normal Will as anyone else would.

Paul:          Yes, but would have happened is that if she had assets they would have applied for a Grant of Probate, then you could apply to the Supreme Court Registry to get a copy of the Grant of Probate which will have the Will attached. The new provisions entitle family members, a whole range of people to get copies of Wills relating to a deceased person. Now whether that applies to 20 years ago I am not 100% sure but you would be able to get a copy through the Supreme Court Registry. Was that in NSW that she died?

Dean:        Yes it was.

Paul:          You can get an exemplification of Probate you can find out.

Luke:         Good as gold. Time has got us. It goes so quick.

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