Q & A on 2GB discussing Wills & Estate Law 17/03/2015
John Mann providing Q & A on the 2GB Chris Smith Afternoon Show discussing issues in relation to Wills & Estate Law
Tuesday, 17 March 2015
Chris: Yes Turner Freeman legal matters 131873 our telephone number we get an expert in from Turner Freeman every single week. Tuesday afternoon is the time and for the caller of the afternoon you have got a $100 Westfield voucher to win and we will award that as we go through some of our callers and the questions this afternoon and remember to pick up your local newspaper because you can read each week a Turner Freeman legal matters column and it could be anything from compensation and negligence law, family and employment law, wills and estate law, superannuation, disability claims you name it. They can all be read in your local newspaper. Turner Freeman does that each week but you can get that free advice.
This is free as well. John Mann from Turner Freeman Lawyers is here to talk about estate and Wills today and no doubt you have got questions to put to John and you can do so by phoning 131873.
John Mann welcome to the programme.
John: Thank you Chris it’s a pleasure being here.
Chris: Is there some Irish in your background that we can claim?
John; No, my wife’s family are Irish.
Chris: Very good what’s the maiden name?
John; Deady d e a d y.
Chris: Where from in Ireland do you know?
John County Cork.
Chris: Oh gees you’ve got brownie points today I tell you what. County Cork. John Mann has a claim on being Irish as well, well at least connected to and married to an Irish woman of Irish heritage. 131873. Um if you don’t have a Will John what are the consequences of that?
John; The result of not having a Will is that the state effectively decides what will happen to your estate. Not having a Will is referred to by law as intestacy and there is an Act of Parliament the Succession Act which is applicable after the 1 March 2010 provides as to what is to happen to your property if you don’t have a Will. Now that might be well and good in as much as the law might work the way you want it to work. But if you don’t that or you don’t know what it is then its very good idea to have a Will.
Chris: So if you don’t have Will and its being handled by those who are not part of the family or elected by you to execute that Will who is entitled them to share your estate.
John: Depending on your relations. The general rule is firstly your wife. If you have wife and children under the law today the wife takes all. If there are children the children of the wife and the husband (I am just using the husband who is deceased as an example) then those children don’t take any part of the estate. Before 2010 they used to but now they don’t. So if you die and you have wife whether there are children or not the wife will take all. If there is not then the children of the surviving spouse then different rules apply.
Chris: I guess this plays a very important role in men for instance who might marry again and children who may not be as connected or close to the second wife and all of a sudden it’s important that you make a will because you want your two children or three children to have a Section of your estate.
John: Well on intestacy on those circumstances the child or the children would get a share. A second wife if they are not her children they are his children and a situation like that where the children will then take part of the estate the wife would get the first $350,000 indexed from March 2010 she would get the household contents and furniture and half of the residue of the estate. The other half would then go to the deceased person’s children.
Chris: Okay let’s get to as many callers as we can. John Mann from Turner Freeman Lawyers taking your call. Karen go right ahead.
Karen: Hi Chris and John.
Karen: I just wanted to know who I can name as executor of my Will can it be my lawyer or can it be a recipient of the Will or does it have to be somebody independent.
John: It’s basically a free choice you can nominate anyone you like as long as they are over 18 and responsible enough who you trust will carry out your wishes. It can be a member of the family. It can be a person who gets a gift under the Will it can be your solicitor if you want that. It can also be a professional executor. There is a NSW Trustee and Guardian. There are various professional trustee companies who can also be your executor. But for most of us it’s usually someone close and someone in the family who we trust to carry out our wishes. It’s not a good idea to have an executor in New Zealand and Iceland because you have got a property in NSW you want someone close and handy.
Chris: Good on you Karen thank you. Suzie has a similar question but a tangent to what we’ve just discussed. Go ahead Suzie.
Suzie: Oh hi, Chris thank you. I wanted to ask is it possible to have a different executor to carry out my funeral and a different executor to look after everything else like my estate.
Suzie: This is for personal reasons.
John: That’s an interesting question. The general legal proposition is that the executor appointed under your Will has custody of the body and it’s their responsibility to raise a funeral. In practice very often the family make the arrangements for the funeral and the executor just goes along with it. It’s possible to have in your Will the appointment of separate executors and trustees ordinarily we say we appoint the same person to do both functions but the tasks are different in that the executor is the first person who has to get Probate of the Will, collect the assets and pay the bills. The trustee is the one who has to administer the Will according to what your wishes are. Now you can make those as separate people if you wish and I suppose there would probably be no harm in putting a direction in your Will to your executors to say that I would like “x” to make the arrangements for the funeral.
Suzie: It’s no necessary to have two different Wills.
John: No. But you can have two different persons to carry out the same function in a Will.
Chris: Okay so the answer to your question is it possible and it’s something you may be able to organise when you next meet to update that Will. Steve go ahead.
Steve: G’day guys. How are you.
Steve: My question is um simply I am the trustee of my aunty’s Will. Basically it is drawn that 50% of the estate goes to her son and daughter the remaining 50% goes to her grandchildren and which they will get the benefit of that when they turn the age of 18. Now some of those grandchildren are only 1 and 2 years old. If my aunty was to pass away tomorrow. What is my responsibility to those grandchildren up until the time they turn 18.
John: As the appointed Trustee it is your responsibility to control and manage their money until they come of age. You will probably find that the Will says that they have to do two things one of which is survive her and secondly reach 18. It’s what the lawyers call contingencies. If they are not met you as trustee would have to hold the money and your under an obligation to invest it and get a return on it no necessarily the world’s most super duper return but in some way get a return that you can using your reasonable effort and when the child goes over the age of 18 they can then have their share. But that’s your responsibility until they come of age.
Steve: Yeh so if they are 5 children I just divide that 50% into 5.
John: You can do either. What’s called appropriate in other words split it into 5 shares and keep them separately or you can keep it as a common fund which of course raises difficulties about splitting interest and so forth but sometimes you can get a better return on your money when its combined funds rather than split into five separate accounts.
Chris: So that’s interest so trustees need to think about how to get a better return on money that’s waiting for recipients down the track and it may be going in search of the best investment plan.
John: Well trustees have duty to invest. They have duty to review investments every three years and they must act reasonably in all the circumstances otherwise they could be held responsible by the beneficiaries if they make a loss by a bad investment decision.
Chris: Okay that’s interesting. John Mann from Turner Freeman Lawyers in the studio to take your calls. Wills and estates today. I am going to put a question to him after the break about the technological part of your life. The passwords, the photos the secret digital file. The things on your computer. Who takes control of all of that. Well there’s a move towards making sure all of that is covered when you update your Will. We will talk about that shortly.
28 mins after 1. Gees there’s some good callers on the line about Powers of Attorney and Wills, and Will readings and death certificates. We will get to those and continue those callers in just a short moment with John Mann from Turner Freeman. I did want to make people aware that this is brain awareness week and the human brain as you know is obviously one of the most important parts of the human body if not the most important part. Do you know over the course of a lifetime the average brain will retain over 1000 million or quadrillion pieces of information. It’s absolutely amazing. So it’s extremely important you keep your brain healthy. What do they say “use it or lose it” and as I say this week is Brain Awareness Week it’s time to have a think about how we look after our brains. I always said the great way to look after your brain is to make sure you stimulate it with good conversation and maybe even talk back radio. I am joined on the line by talk-back radio stalwart, Ita Buttrose who through her work as immediate past present of Alzeimer’s Australia understands just how amazing the human brain is. Ita, a very good afternoon.
Ita; Any you to Chris.
Chris: Do you think that’s right or am I trying to whip ourselves into a front row position here. I just think stimulating your brain through you know conversation and issues that you have to think about has got to be good for the brain.
Ita: Oh absolutely we say social activity is terrific for the brain and we urge people not to isolate themselves which they often do as they get older and so social activity, talk back radio fantastic and so too is physical exercise and some mental exercise that we just talked about and looking after your heart and looking after your blood pressure and looking after your cholesterol these are very important risk reduction factors against dementia.
Chris: Its sad when you think about it 340,000 Australians living with dementia right now just frightening.
Ita: Yes and there is also 1.2 million people caring for them and the present figures keep showing it’s going to increase the caseload so about 2050 we will have over 900,000 people. So it’s really important that we get a break through with medical research if we can slow it down that would be fantastic.
Chris: Some people are saying that once you have got it you can slow it down but you can’t improve it. But you know what it’s like with medical science things can change and we can only hope that medical science does change. But in the meantime we need to get active and when you talk about physical exercise it plays a role in the performance of the brain does it.
Ita: It does people don’t understand that the brain really benefits from physical exercise all the chronic conditions do quite frankly Chris but for the brain yes physical exercise is really important and it’s not something that you just sort of start because you think “oh I am getting older. I better start doing something”. It’s really something we should do all throughout our lives. We should train our children to always do a bit of exercise because the brain will benefit right from then but it’s never too late, never too late so I don’t mean you have got to take up a marathon but if you went walking for 30 minutes briskly at least 4 times a week, 7 times it would be even better but at least 4 times that would be fantastic for your brain.
Chris: I understand that people are being diagnosed with dementia even as early as in their 30s and that movie which of course Julieanne Moore won an Oscar for Still Alice. It reminded us all of how young you could be and be hit by a brain disease.
Ita: Well that’s right there are about 25,000 Australian with what we all younger onset dementia and you know we sometimes I suspect that the caseload may be higher because dementia is a very difficult thing to diagnose and younger onset is even more so and so it’s often confused with depression because no-one expects to find dementia in younger people but it’s there and it’s another one of those areas into which we are doing a lot of work and we are doing research and we have what we call a key worker programme in which we help younger onset dementia people get through their journey help them sort out the things that have to be done. I was interested you were talking about Wills you know when I came on. That’s another thing you know we urge people when they get a diagnosis to make sure their affairs are in order while they are still capable of sorting it out to the way they want it. To appoint a guardian, to write the Will to give the Power of Attorney, these are important issues for everyone.
Chris: Yeh take deep breath and just face it because although some people try and avoid it because it doesn’t give them confidence in where their life is going it’s got to be faced.
Ita: Well anybody with dementia is still an individual. We had a consumer summit in parliament in Canberra just a couple of weeks ago and you know one of the carer’s made the point even though her partner had dementia he was still that person, he was still an individual and I think that’s a very important thing for the person with dementia as well as the carer to remember and everybody’s journey is different. I mean some people you know have moments of wonderful lucidity where they can participate and do things and we are very keen to start dementia friendly communities to encourage dementia friendly communities so the person with dementia feels a valued part of the community.
Chris: Yeah exactly always good to have you on the radio. Great to hear your voice Ita. Thank you for your time.
Ita: Just before I go, can I just ask you to tell your listeners and you might like to try it to. This is brain health week we would like you to take the brain health challenge and you can do that by going to yourbrainmatters.org.au and see if you can do something else to challenge your brain during this month.
Chris; yourbrainmatters.org.au. We will have a go. Thank you so much Ita.
Ita: Thank’s Chris.
Chris: Alright there you go Ita Buttrose brain health important and whether it is taking that challenge yourbrainmatters.org.au or even just listening to a little bit of talk back radio and start to think. Use your brain use it or lose it I think is a really good message in this Brain Awareness Week.
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Debbie has got a question for John Mann from Turner Freeman. Go ahead Debbie.
Debbie: Thank you for taking my call. I was just wondering how long it takes after the passing of someone to get a death certificate.
John: Generally one and a half to two weeks because they are pretty prompt but in order to have a death certificate the funeral has to be completed because the undertakers have to file certain documents with the Registry. But generally about a week to two weeks.
Debbie: Okay and also um when um the Will do you always have a reading of the Will.
John: Oh not necessarily. Perry Mason might but generally speaking there is no formal reading of a Will unless it’s really requested by the family.
Debbie: And if the two parties have a copy already and its 50/50 does the executor have to be there.
John: Well the executor is the one who has the control and management of the estate. Obviously they have got to know what their function is but they don’t necessarily need to be at the meeting if the family are gathering but generally it would be a good idea to have the executor there.
Chris: Thank you for your call Debbie. Martin is on the line and wants to talk about Power of Attorney. Go ahead Martin.
Martin: Yeh hi thanks Chris and John for taking my call. I’ve got a 93 year old mother and we lost dad about 18 months ago and she lives up in Queensland in her own home on her own. I’ve been told it’s a good idea to get Power of Attorney and I have just got a couple of questions. What is the difference between and enduring power of attorney and a power of attorney.
Chris: Good question.
John: Good question um generally speaking there are Powers of Attorney which are just simply the appointment of an agent for somebody to do something else for you. These occur quite commonly in other legal documents. You will find them in your house mortgage, leases and things like that.
John: An Enduring Power of Attorney is one that is made in particular circumstances where the person making it is given advice that once the document is signed in the way prescribed by the law of the State it becomes enduring meaning that once the document has been made if that person then subsequently suffers unsoundness of mind and loses capacity. The Power of Attorney nonetheless continues on. It endures their disability. That’s why its called enduring so that the advice to the person making the appointment is that they have to appoint someone they know and trust will do the right thing by them because they will be making decisions with their property and their assets at a time they are no longer in control of the situation.
Martin: Okay that’s good now can you have both joint enduring Power of Attorney between myself and my sister?
John: Yes you can have multiple attorneys. It’s not a good idea to have two happy to act together because if one dies or one refuses the other can’t act.
Chris: Yeah Martin do you get on well with your sister.
Martin: Yes get on really well but the hardest question is the last one I’ve got mum coming down to Sydney in a couple of weeks how do I convince her.
John: Oh well that’s a different matter that’s up to her it’s a voluntary thing and she’s got to know that it’s entirely voluntary and got to want to do it and have the capacity to do it.
Martin: Yes in her having an enduring Power of Attorney.
John; Yes her appointment of you not the other way round.
Chris; Good on you Martin thank you very much. Hey tell you what Martin are you still there with us.
Martin: yes I am still here.
Chris; I think you had a great collection of questions there can we get you the $100 Westfield voucher for being the good question of the day.
Martin: That will be great and I will spend it on mum when she is down here in a couple of weeks time.
Chris: Outstanding great call stay right there I will put you through to Carla and we will get the $100 Westfield voucher courtesy of Turner Freeman Lawyers to you and it’s a good question enduring Power of Attorney and Power of Attorney. I know these are things that solicitors often deal with but you’ve got to know as a family member what those definitions are don’t you really.
Chris: Let’s take a break we will get back to your calls on 131873. The legal matters segment with Turner Freeman.
Fourteen to 2pm and we are with John Mann from Turner Freeman just before we return to your calls and hear what John has to say I made mention previously about these election campaign posters these very bright yellow ones from the No Land Tax Party that I have seen thanks to a few very helpful listeners slapped up on traffic light poles. Now these traffic light poles I would have thought are the jurisdiction of Ausgrid. Well Ausgrid has therefore taken our call and got back to us about these posters and said we have recently written to the major political parties reminding them not to attach political posters to power poles mainly because of our concerns about the safety of the people who are attaching the poster. We also sent out a Media Release recently. I’ve got one here it says “Candidates to the upcoming NSW election are again being reminded that attaching posters to power poles is unsafe for untrained campaign workers and against the law”. The warning comes after political parties were today that’s March 3 invoiced for the safe removal of 599 election posters illegally attached to power poles. So there is plenty of it happening. Plenty of it happening there are strict rules in place according to Ausgrid so what the No Land Tax Party is doing is illegal basically.
131873 is the telephone number before we get back to calls John. It was interesting hear what Ita Buttrose had to say about brain health and the fact that you know you have got to make a Will very quickly before you get a diagnosis of Alzheimer’s. It’s an interesting question as to whether someone has the mental capacity to carry out their own Will. Right.
John; That’s very true the capacity to make a Will is governed by some fairly strict rules actually based on a 19th Century English court case but the fact that a person has a diagnosis of dementia doesn’t necessarily mean they can’t make a Will. If they can fulfil the test at a time they give the lawyer instructions to make the Will then the Will signed subsequently can still be a valid Will now those um the tests are that firstly you understand what a Will is. The nature of the document something that you are making to leave your property when you die. Knowing the nature of your assets recognising the people who have a call or a claim on you, your estate your family. People who support you and lastly not be to be under any delusion. Now delusional things are saying “I’ve left my son out of the Will because he is out in the backyard building a death ray” or something like that’s an extreme example. But even a person with serious mental incapacity if they can fulfil that test they can still make a valid Will.
Chris; And there are some instances where to prove that someone has the mental capacity to make a Will you would have to call in what a psychiatrist or even a psycho-geriatrician.
John: Psycho-geriatrician yes. Obviously this a problem for solicitors because people are living longer and of course you are seeing people coming in their late 80s and 90s to make Wills. You have always as a lawyer got to assume that they have got capacity but then when you look a bit closer that may or may not be the issue and that sometimes I’ve made Wills actually with a psycho-geriatrician who became one of the witnesses to the Will.
Chris: Because it was challenged down the track.
John: Because it was going to be challenged down the track that’s right.
Chris; Mark you have got a question go right ahead John is listening.
Mark: Yes John um my question is why is it not compulsory for a solicitor to contact beneficiaries of a Will and give them a copy of that Will. The reason I ask it is the executor of the estate that I was party to said the original Will was lost and just had that one drawn up which was nothing like the original.
John: It depends on your relationship with the deceased person.
Mark: My father.
John: Well in 2006 when they amended the laws of the Succession Act they put a section in that made it obligatory for a person who had a Will to provide a copy to certain persons or certain classes of people including children, partners, people who might share if there wasn’t a Will and so forth. So depending on when he passed away you would be entitled to a copy of that Will as of right.
Mark: Okay now the solicitor like my brother said the original Will was lost so we all took it at face value that it was lost. But it was never lost so then he ordered the solicitor draw up an agreement between the four parties which was just a whole heap of paperwork and we had to initial it at a corner of every page. Now in tuck there was the original Will. So of course we actually initially. It dissolved that Will and made the agreement. Now also we have now been excluded from any documentation in regards to my father’s estate because he has instructed the solicitor not to provide us with anything not even a statement of the account.
John: Well that must have some bearing on what it is that you have signed. You see if you are a beneficiary in an estate the executor is accountable to you whether in the short or the long term but if you sign some sort of an agreement then that may be the reason that you are excluded from that information. I wouldn’t know without looking at that in more detail.
Chris: It seems to be a case where Mark probably needs some decent legal advice.
John; I think you need some advice on what it is you have signed Mark.
Chris; Okay Valerie go right ahead.
Valerie: Oh hi thank you for taking my call. It’s a two part question relating to a Will. My husband and I married 25 years ago. Neither of us have children. Each of us made us the beneficiary of each other’s Will. We separated 4 years ago but have not divorced and I have a couple of partners he got one at the moment. I wondered what the situation would be if he died or I died are we still able to be the beneficiary of that Will or would the new partner or boyfriend, girlfriend have a claim?
Chris: That’s another good question.
Valerie: The second part is if he changes his Will can I contest that still being the legal wife or not?
John: I am just going to deal with those in order. Even though you have separated unless you are either divorced or you change your Will that’s still your current Will so that whoever is named as your beneficiary who inherit if you were to pass away and vice versa. In terms of claims if your former partner had a new relationship and made a Will leaving everything to that partner or putting aside the entitlement of their partner and the size of their estate you still have a right to claim against their estate under the Family Provision as a former spouse. It’s not an easy path for you because you have to show what’s called factors warranting which is justification of why the Court should make any particular provision for you ahead of the other person who has been named in the Will.
Valerie: And could the other person contest it if the Wills were still left as they were like if he left it all to me and I’ve left mine all to him could either of our current partners say “Hey I’m a current partner I want some of that”.
John: Yes they could contest your estate not the partner’s not your ex-partner’s estate but your estate your partner can contest your estate.
Chris; It could get rather messy Val.
Chris: Yes thank you very much for your call. Well that is a really interesting question and it may be something that Valerie needs to consider and maybe consider moving the separation of her relationship onto the next step to avoid the problem.
John you have been most helpful. Thank you very much for coming in.
John: It’s been a pleasure Chris.
Chris; John Mann from Turner Freeman Lawyers