Q & A on 2GB discussing Wills and Estates
Tuesday, 26 July 2016
CS – Chris Smith /JM – John Mann /C1,2,3, etc – Callers
CS Free legal advice is hard to find but you’ll get it here each and every Tuesday afternoon thanks to Turner Freeman Lawyers and don’t forget we’ve got a $100 Westfield Voucher to give away as well to a selected caller between now and 2 o’clock and we’ll do that. And Turner Freeman Lawyers provide a range of specialised legal services you should know about including compensation and negligence law, asbestos litigation, family and employment law, Wills and Estates which we are talking about today, commercial litigation and superannuation and disability claims. Their NSW offices are Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong. And they’ve got offices in Queensland, South Australia and WA as well. John Mann is an accredited specialist in Wills and Estates and property law as well. He’s based at Turner Freeman in Penrith and he also sees clients at Gloucester and the Windsor offices and he joins me in the studio right now. John. Thank you for coming in.
JM Great to be back Chris.
CS Now I want to …. before we take calls and we’ve got a stack of calls to take and some very interesting questions on this type of subject. Tell us about the 10 million dollar Wills case that has been recently contested and something that may interest our listeners this afternoon. 10 million dollars worth.
JM Yeah. Thanks Chris. This involves an estate of a very wealthy gentleman who had a very successful auto-electrical business. His estate was worth approximately 10 million and he had a son whose aged closed to 60 who was left with about 1.6 million of the estate.
JM Now he brought a claim against the estate saying that bearing in mind the size of the estate and the fact that he was the son. Then that resulted in the decision of the court was that he didn’t get anymore but the case is more important from the point the judges made in relation to Family Provision generally. That is that particularly where adult children, there is no particular right to have a provision from your parents or that that provision be equal as your siblings or equal with anybody else.
CS So there’s no template to work off and you shouldn’t expect one.
JM No you don’t and the whole point of Family Provision is not to make things fair or even them up, is to make provision for someone for whom adequate provision hasn’t been made in the Will which could have all sorts of dimensions depending on what’s in the estate and needs of various people who are beneficiaries, behaviour towards the deceased person, payments they might have received during their lifetime. There’s a whole series of factors to take into account.
JM The second point that is most important the judge made was that where you are making provisions that are not necessarily equal, it is a very good idea to have a written statement like, and in this particular case the written statement by the deceased was very important in the judge deciding that he’d had enough of his son, given him a lot during his lifetime and that’s why he got no more.
JM It’s very important….
CS That statement was something that he knew could be used to create a legal case that would come to a settlement that he could have approved of.
JM Yes. It’s the reasons why you made the Will the way you have and the documents of that sort are admissible in evidence, the executor can put the document up to the judge and saying when this chap made his Will, this is what he had in mind. This is why he hasn’t made any provision or less provision for ……..
CS And the lesson there is for people listening if you don’t want to contest it or if you think it will be contested but you would like to see it laid out or your estate be divided the way you think it should be divided, a statement explaining the reasons of what you placed in your Will could be very very handy as this proved in the 10 million dollar Wills case. Okay let’s go to callers 19 to 2. Linda go right ahead. John is listening.
Caller 1 – Linda
Linda Good afternoon. Thanks for taking the call. I’ve just recently retired and I’m a little bit confused between beneficiaries and my superannuation and beneficiaries of my Will. Briefly, I have one child and she’s beneficiary of my superannuation and I have four grandchildren and my daughter and grandchildren are beneficiaries of my Will. Does one take overriding precedence over the other when I die?
CS Good question.
JM Not necessarily. Superannuation benefits can be paid in several ways. If the superannuation fund accepts what is called binding nominations…..
Linda Yes it does and has.
JM Yes you can simply say to your super fund my death benefit is to be paid as follows and then you can set out who you want to receive in various proportions you want them to have it or you can simply say in your nomination “I want my benefit paid to my legal personal representative” which means then that is paid to your estate and divided up in accordance with your Will.
Linda Oky doky. I think that explains it thank you.
CS Good on you Linda. Thank you very much for your call. 131 873. Rob has a question that may link to what we’ve just discussed with that case that John raised. Go ahead Rob. John’s listening.
Caller 2 – Rob
Rob Yeah, certainly. Just wanted to know what’s the most that can be done to ensure that you know I guess my intentions with my Will are observed between my children and that one won’t contest the Will over the other one. It’s going 3 ways equally but certainly two have kicked on and done quite well for themselves. One probably I’ve helped a bit more, but haven’t kicked on and I’ve been told that it’s possible for them to really contest the Will given their … the circumstances we’ve helped them quite a bit….
JM Well contest is always possible with children. Children are eligible to make a claim and we can’t take that right away from them.
JM Probably the most practical means of avoiding disputes is either by making slightly different provision in favour of the one that has less or to, as I said earlier, to make a written statement for your executor as to why you’ve done what you’ve done. Now particularly where you’ve given somebody a leg up in life, is not necessarily the matter for the estate to make their life better if they have happen to have come undone with what you have given them earlier. All those things are things that need to be taken into account but a written statement is probably the most important thing that you could make in drafting your Will.
CS Alright Rob?
Rob Thank you.
CS Sounds like – yeah – exactly what we’d discussed in that earlier case which has just come before the courts. John. Go right ahead.
Caller 3 – Chris
John G’day Chris. G’day John.
John Ah John I’ve just re-done my Will because I’ve had my first grandchild so my children will get 50/50 and if they predecease me it will go to whatever children they have which is a pretty standard Will but my kids are worried because my ex-wife has remarried and they’ve heard that his two daughters are going to for her Estate. Now can that happen?
JM Look I guess it’s possible but in the circumstances you would wonder what the prospects of success of a claim like that might be.
John Well that’s what I told them.
CS Ah, we can’t take away rights in those sorts of situations but where it’s their stepmother and I guess that’s the situation, if they’re adult children and they haven’t lived with her then they are totally ineligible to a claim.
John Well they’ve never lived with her.
JM Well then you see the prospect then of a case is extremely remote because unless you are in a position of being say a spouse child or ex-spouse or grandchild it has to be somebody who has been a member of the household or the same household of the deceased person and at any time dependent on them for financial support. If you can’t fulfil those two criteria, then you are ineligible to claim.
CS John, they sound like very special stepdaughters.
John Ah, well I could use another term.
John See you guys
CS Thank you very much. 131 873. Linda. Hello.
Caller 4 Linda
Linda Hello. Ah, look I don’t know if you could help me. My brother passed away and apparently he made a Will about 14 years ago and I’m told left everything to the daughter of his partner. He was never married, he never had any children of his own. Now I’m just wondering what my position is if everything goes to her or if my sister and I have any claim and you know can we contest the Will or overturn it?
JM You say he died 14 years ago?
Linda No not 14 years ago. He only died yesterday actually.
JM Oh I’m sorry. Ah look whether or not you and your sister can make a claim takes us back to the same issue from the previous caller. Where you have siblings, the relationship with them during with….. you know obviously you’ve to be in the same household, at some stage of your lives.. But whether that’s sufficient to get you over the line for Family Provision, then brings you up against the second hurdle – have you ever been dependent or have had financial support from your brother?
JM Well then…….
Linda No… but we are next of kin – he only has 2 sisters surviving…
JM Sure if he has a Will, what his Will says is what is to happen. You know – it’s his property he can do with it as he pleases.
JM Whether you can make a claim for Family Provision I think would be extremely difficult.
CS Alright Linda I’ve got to leave it there – you’ve got your radio on in the background and you’re getting a little bit distracted by the change in 7 second delay. So – that’s very important if you do get on the open line – just make sure there is no radio on because you will just get a little bit confused. 131 873. We’ll take a break and come back with more of your calls and if you want the bits and pieces including a $100 Westfield Voucher to give away.
CS Only a few minutes left in terms of our Wills and Estates segment through Turner Freeman Lawyers today and we’ll get to our callers. How about we go to Chris on line 1. Chris. John is listening.
Caller 5 – Chris
Chris G’day. I bought a house in 2011 off my father and I did it through a solicitor and paid for stamp duty and total market value of the house. My father passed away a year ago. Now a member of the family is trying to claim that house because the house was left to him through the Will but I bought the house, like I said paid market value, stamp duty about 4 years ago.
CS There’s a curly one.
Chris Yeah and the house was left to them but I’ve left it with a solicitor and he said there’s nothing to worry about because they’ll do their searches that I’ve paid my stamp duty and everything on the house. Like I bought it legally. It’s like as if my father would have sold it to another feller but I just happened to be his son.
JM Sure. Now the critical question here is was that directly from your father or was from his attorney or was …..
Chris No – I used a solicitor…
JM No I mean your father….
Chris Say that again sorry.
JM Was it your father who actually signed the documents and contracts?
Chris He signed the documents and contracts and we went through a solicitor. I borrowed the money. Gave him the money and paid stamp duty on the price of market value of the house.
JM Well as long as it wasn’t sold by your father’s attorney under a Power of Attorney.
Chris Definitely no.
JM Or by the Protective Office… If he was a protected person, then what’s happened is what the lawyers call an ad emption which means that the gift in the Will to whoever he intended to leave the house to has failed.
CS Wow that’s quite a story isn’t it.
Chris Well he didn’t update his Will that’s what my ……….
JM That’s what your father should have done but what it means that the gift of the house fails – it’s yours and there’s nothing they can do about it.
Chris The good thing about it which if you want to call it… I paid market value. …. I did….. as if I bought it off ……. ah and yes – so that’s where I stand – you know it wasn’t actually sold to me cheap….
JM But the critical question is that it was a voluntary act on the part of your father by him.
Chris 100% yes it was.
CS Well your lawyer sounds like he is giving you the right advice but it’s such an interesting story Chris, I reckon we should give you the $100 Westfield Voucher because….
Chris Oh geez that’s….. I didn’t……
CS No, no. I understand all of that but I’ve got to give it to someone….
CS I’ll have it if you don’t want it….. no you’ve got it Chris. You stay there and we’ll get you.
Chris Oh you’re a good man…
CS $100 Westfield Voucher to you. An extraordinary set of circumstances but one that arises quite often if someone’s not updating their Will.
JM Exactly so.
CS Yeah okay. Wendy, we can fit one more question in. Go right ahead.
Caller 6 – Wendy
Wendy Oh hello, my mother made her Will out in 2005 when my father passed away. She was very clear in the directions that she wanted including her Power of Attorney and Enduring Power of Attorney. In the last few years I believe that my mother is suffering from early onstage dementia, she won’t have any testing done, absolutely refuses. In the last few years my brother has come back into her life. I suspect seeing that she’s going downhill and she’s changing everything. All her paperwork, all her financial, everything. Is there anything I can do to protect her and myself?
CS I’ve only got 30 seconds – so John – we’ll have to answer in that time limit I’m sorry.
JM Okay – all I was going to say is that if you suspect your mother is being exploited, then you are entitled to make an application to the Guardianship Tribunal for the appointment of financial manager and/or guardian for your mother. That can be the NSW Trustee and Guardian if no-one else is there to do the task But also the question is whether or not any documents she signs now that she’s been diagnosed with dementia might have some difficulty.
CS Yeah. Difficult situation for Wendy.
JM Speak to ENCAT. That’s where to start.
CS ENCAT. Thank you John. Much appreciated. Thank you for your advice. John Mann from Turner Freeman in our Legal Matters Segment for another Tuesday.