Q & A on 2GB discussing Wills & Estate Law 6/5/14

Tuesday, 6 May 2014

CS – Chris Smith/BB – Brian Barlow/C1,2,3 etc– Callers

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CS       Hey we’ll get back to your calls a little bit later, we can also return to what the Government is doing, what the budget should look like, what you should think should occur with health insurance, don’t go anywhere, if you’re waiting on line now we’ll take your number and we’ll get back to you a little later in the program, probably immediately after the news at 2 o’clock, but in the mean time our regular segment, a chance for lawyers to get into the studio and answer your questions and its free advice, and it’s not often you get free advice, let alone free advice from the legal fraternity, but thanks to the people at Turner Freeman this is what we do every Tuesday afternoon at about 1.35 pm and we invite your calls, on 131873. On today’s subject which is Wills and Estates and maybe what we should do is talk about the problems you may have had leaving money to charity or the problems you’ve had leaving money to your sons and daughters and what the rules are in terms of gifting, these are aspects that usually crop up at this time when we talk about Wills and Estates, 131873 Brian Barlow is in the studio from Turner Freeman right now, Brian thank you very much for coming in.

BB       Thank you Chris.

CS       Are you ready for the onslaught.

BB       I am.

CS       Alright, 131873 is the telephone number and I’ll get to your calls in just a second. I was fascinated, I think it was Friday I read this story. One of the richest men in Australia, Paul Ramsey and he of course from Ramsey Health Care, I think which runs about 100 to 150 hospitals around the world, he died and he left $3 billion. This is his fortune to charity, making it one of the biggest donations the country has ever recorded. That is just an extraordinary amount of money.

BB       It’s a huge sum of money Chris, yeah 3 billion. I did read though that he wasn’t married and didn’t have any children, so there may well be nobody who might be disaffected by that decision to leave all of his money to charity and it might have been a different scenario if he had some people who he should have perhaps considered when he was making his Will, but as I said I understand he was a single man with no children.

CS       But could it be that lifetime associates, life time friends would have some grounds for bringing some kind of application to obtain some of that money.

BB       Well you have to fall within a specific category of person to be able to bring a family provision claim against someone’s estate.

CS       You’ve got to be in the family for a start.

BB       Well, yes there are people outside of the family, perhaps people who were dependent on him and were members of his household during a particular period, like a de facto partner for argument sake. It extends now to same sex couples, carers can potentially be claimants, so yeah it certainly does extend outside of the immediate family.

CS       He has got a twin sister Anne and brother Peter.

BB       Yeah, well.

CS       Could they put their hands up?

BB       Well normally those people, siblings probably wouldn’t normally fall within a category unless they were dependent upon him or perhaps part of his household.

CS       Ok, let’s go to callers at twenty to two, 131873, free legal advice, thanks to Turner Freeman, Mark on line 8 go right ahead, Brian is listening.

C1       Oh Brian, I’ve got a question for you about dealing with the New South Wales Trustee & Guardian as far as Wills are concerned.

BB       Yes.

C1       Do you have knowledge of that area?

BB       Yes, yes they will provide a service where they do provide Wills for people.

C1       Ok. I had a situation, my father died nearly 2 years ago and a woman came into his life and she eventually moved in with him and she ended up basically getting the whole lot, his Will was changed when he was very sick and everything was signed over to her, his property and pretty much everything else. We weren’t going to challenge in Court, because there were 3 previous Wills my father had made leaving his stuff to his family, and we suspect pressure was applied. And we weren’t prepared to take that to Court, instead we decided to mediate, but I’ve got to say the mediation process was something the average person probably wouldn’t want to go through. We feel as if we were, funnelled into a corner by the Public Trustee and Guardian. They timed the clock down in a way that virtually left us to run out of time to file a Summons to Court and we just found the whole process absolutely appalling and I’m just wondering that you hear from time to time.

BB       Well Mark, in relation to your claim no doubt you were represented by competent counsel in regard to your claim. Any you know it’s very difficult to comment on the proceedings or any Court proceedings when you don’t know the facts, but look can I say, bring claims against Estate are very emotional and very raw and I understand entirely that the angst that you would have gone through it challenging, it’s not an easy decision to make. That being said of course is that, you can only do what you’ve got to do and your guided by competent legal counsel to ultimately come. Having said that I might add that mediation certainly is a better outcome than an actual Court hearing, Court hearings are expensive and ultimately you may not like the decision that is made at the end, so mediation is a much better path and the Court is geared towards mediation to hopefully settle these types of disputes.

C1       Ok, alright I just found it very interesting that there was almost total lack of objectivity from this Government agency, total lack of sensitivity. I mean I understand that they were working off a legal document, but it was total ignorance of the facts that were put forward and it was basically a case of you guys just sit in the corner and shut up, you’ve got no hope, a Judge is not going to listen to you. And I might add it took us nearly, you have 12 months to file a Summons I understand if you are going to take such a matter to Court.

BB       Yes that’s correct.

C1       We asked and asked and asked to mediate, when can we mediate, when can we mediate and the finally agreed to mediation I think it was 3 weeks before the dead line before we could go to Court, and we just felt that we ran out of time and we felt that they were very cunning and very strategic in the way they did that.

BB       Yeah, look I understand Mark, having said that the Court process also requires mediation, so had you embarked on the Summons you would have ended up in mediation in any event.

C1       Yeah but it costs a lot more to go to Court.

BB       Certainly, certainly.

C1       Yeah, ok alright Brian, thank you.

CS       Alright Mark thank you, Sharon in St Ives go ahead Sharon.

C2       Oh yes I was wondering if you could help me. The situation is that I have a husband and he has a brother. Now my mother-in-law has left her Will that if my husband dies before her, everything goes to the brother and I’m cut out of the Will, would I have any entitlement to something after 30 years of marriage.

BB       30 years of marriage to your husband, well.

C2       Yes.

BB       Sharon you’d have to fall within the category of being a legible person to bring a claim against, which I understand is your mother-in-law’s estate. And I assume that you weren’t dependent or financially dependent on your mother-in-law or.

C2       No I wasn’t.

BB       You weren’t living together or the like, so you would have difficulty falling within the category of being a legible person to bring a claim. Do you have any children?

C2       Yes I do.

BB       Alright, I mean sometimes Wills, well normally if, under the Act if your husband pre-deceases his mother, then his gift would pass onto his children being issue. So that perhaps is a way of looking at the scenario in terms of your children may well benefit, although you won’t.

C2       Right, so I would have legal claim upon her Will at all.

BB       Well unless you were a legible person under the Succession Act, no you wouldn’t have any bearing to bring a claim.

C2       Ok, thank you so much.

CS       Good on you Sharon, thank you very much for your query. Now a legal question from our Inbox comes from Shelly, “I have a Will that was drawn up by a solicitor. I wish to make a very minor change to it. Adding the names of a niece and nephew who were born after the Will was made and I want to leave them something. If I make a hand written initial notation on the Will, will it be legal or do I need to have the Will made again by a solicitor at a cost that I don’t think is worth it.” Can I save some money making a notation on my document?

BB       Well, what would concern me there Shelly is that by you simply making the change and making a hand written initial or whatever, that Wills have to be witnessed by 2 independent people. So you would run into difficulties. My advice is to do a new Will, do it properly. I mean the days of word processes, I mean Wills are fairly inexpensive in the overall scheme of things and I would certainly encourage you to see a solicitor to do a new Will.

CS       Cause no matter what happens someone finally picks up that document after she passes and it’s been initial by her and you think to yourself, well hang on a minute, this can’t possibly be legal, because anyone could have written anything on that document.

BB       Yeah certainly Chris, however there are provisions where the Court can admit to Probate in formal testamentary documents, so perhaps even though a document might not strictly comply with the formal requirements of execution of the Will etc, that the Court does have the power to look at all of the circumstances and perhaps admit that amendment to be considered with the remaining parts of the Will, but as I said why run the risk, relative inexpensive to do a new Will.

CS       Brian Barlow from Turner Freeman to take your calls straight after a break. Just before we go to that break, Massude as just sent me an email “car broken down in the intersection of Deli Road and Epping Road at Lane Cove, it’s a busy interruption, Chris drivers should slow down” 13 to 2.

CS       With Brian Barlow from Turner Freeman lawyers and he is happy to take your calls right away, let’s go to Fay from Belrose. Fay, Brian is listening.

C3       Oh I’m from Brookvale actually.

CS       Brookvale, go ahead Fay.

C3       Hi Chris, hi Brian, I was just thinking about this question when Chris said you were coming on. I’ve been divorced for about 40 years, school teacher, I didn’t get help from anybody, the husband or the Government or anybody, but that’s all right, I own my own small unit and I’ve got a little bit of money but aside. I’m having very major surgery in a month’s time and made me think about a new Will.

CS       Good luck with that by the way.

C3       Yeah yeah, thank you very much. My son died from cancer a little while ago, but I’ve still got a daughter who’s got a son, the joy of my life and I want to leave most of the stuff to him. I have a very bad time with my daughter, I mean extremely bad. So I’m just wondering if I put in my new Will to sell the unit, it’s a ground floor unit, very nice, to sell the unit and with the money, say give her $100,000 and the little grandson is 7, the rest to be kept in trust until 18 or 21. Then would my daughter have the right to fight him for it.

CS       Good question.

C3       He has been the joy of my life.

CS       Ok.

BB       Yes Fay, well your daughter, being your daughter would be a legible person under the Act to bring a claim against your Estate, so the Court would have to determine whether or not there was, that you had made adequate provision for your daughter and the second arm would be what were your daughter’s needs and they are going to be the relevant tests if your daughter were to bring a claim for further provision out of your Estate, they’re going to be the relevant factors before the Court, so depending on the size of your Estate, which is obviously a factor, you cannot do anything that would prevent your daughter bring a claim against your Estate if she has the case and is a legible person, which she obviously is.

CS       How’s that Fay.

C3       Yeah, I think that’s right. But I was at a social function only a couple of weeks ago and I was talking to a solicitor and he was the one who made me sort of ring you today and said that there was a new thing, a new rule in March that said something about, if you leave your children a certain amount of money, therefore they have no right to have a claim. It’s only if you leave them nothing. Or is that wrong.

BB       Well, look yes Fay in a word it is wrong.

C3       Ok, thank you.

CS       Ok good on you Fay, good luck with the surgery too by the way. 131873 Marion go right ahead.

C4       Oh hello. The question is I own some valued paintings and they were purchased well before the 70s. If I leave them in a Will, instead of selling them now and be exempt of tax because they were purchased before the 70s will the inheritance be charged, be exempt of tax.

BB       Marion well, yes, there is no tax on leaving something in an Estate to someone, doesn’t attract tax by itself.

CS       Not yet! Sorry sorry I don’t mean that Marion.

BB       Well with the budget emergency that may well change.

CS       Not yet.

BB       But no, the mere gift or bequest of the paintings does not attract tax.

CS       That’s the answer to your question Marion.

C4       In other words because I purchased them before the 70s. Is that the reason?

BB       Well no, it’s not, I think you’re probably alluding to September 1985 which was the commencement of capital gains tax.

C4       Ah.

BB       And that’s a different issue than just gifting or what people wrongly think that there is a gift tax. But look if you, certainly there could be capital gains tax issues, but not particularly on your death. They may then be delayed by the beneficiary, but if they are a pre September 1985 asset then there is no capital gains tax at all.

CS       Leah has got a question for you Brian. Go ahead Leah.

C5       Oh hi just wondering if someone’s passed away and you think you might be a beneficiary who should actually advise you. The solicitor who holds the Will or the executors and also is there a time frame when they should notify you?

BB       Well under the Act, Leah there are certain people you are entitled to a copy of the Will. Per say there is no requirement on a solicitor or an executor necessarily providing a copy of a Will, but if you’re a person named in the Will, you are entitled to a copy.

CS       They have a duty to inform Leah, right.

BB       Well.

CS       They should.

C5       That’s what I’m trying to find out. I believe I’ve been named a beneficiary but I haven’t seen a copy of the Will, but other people are telling me, and I’m just trying to work, do I contact the solicitor or the executors.

BB       No look, depending on what the relationship with the executors are, but you can, normally what you would do is contact a firm of solicitors and say that you understand you are a beneficiary, would you please provide me with a copy of the Will and there is a requirement for that to happen.

C5       What about the time frame.

BB       Well no there is no time frame.

C5       Ok.

CS       Just ask and you should receive Leah, thank you. Rob’s got a question. Go ahead quickly if you can Rob.

C6       Yeah Brian how you going mate.

BB       Yeah good thanks Rob.

C6       What’s the cut off limit to test a Will?

BB       Sorry to test a Will, contest.

CS       Contest.

BB       If you wish to bring a claim, a family provision claim against an Estate there is a 12 month time limit from the date of death.

CS       12 months, ok that’s the answer. I’ll tell you what I’ve got a stack more calls to get through. Are you able to stay for 5 more minutes, just 5 after the news.

BB       I can Chris.

CS       At 2 alright we’ll take a few of your calls. Don’t go anywhere. I know you’re very interested in having your questions answered and we’ll do that soon after 2. We’ve got travel coming up as well and a few other bits and pieces. It’s 3 minutes away from 2.

You’re listening to the Chris Smith afternoon show, right across Australia.

CS       This is the afternoon program and due to overwhelming demand, it’s a fact, it’s true, we’ve got to continue our Wills & Estates segment, our free legal advice thanks to Turner Freeman. We will do this just for 5 minutes, so we will get through as many calls as I can in the 5 minutes, but I noticed that Brian Barlow who is here from Turner Freeman has a few fans from Gloucester. Your neck of the woods is it Brian?

BB       Are yes Chris, I’ve lived in Gloucester for the last over 20 years.

CS       Well Frank says that Brian can sing us a song if you ask nicely, and he says he can do the entire version of American Pie! Do you need a little courage, to do that Brian.

BB       Oh look.

CS       You might dip out.

BB       You’ve really put me on the spot here.

CS       Well it’s up to you mate, but I obviously don’t have the time today, but we could get you in for a recital of some description, maybe on a Friday.

BB       We could sing harmony’s with each other.

CS       We’ll do it.

BB       Oh they’re going to love that.

CS       Good stuff, Lee writes in an email: “there’s a lock down at Riverstone High School, my daughter just sent me a text. Apparently we have heard that there are some students, not having a fist fight but certainly having a very wide spread argument outside the school gate apparently” that’s when we put one and one together that’s what we get according to police media. 131873 Dave in Castle Hill go right ahead.

C7       Oh hi I’m just about to do my first Will and I just wanted to know if you recommend the DIY ones you can pick up from the post office.

BB       Yeah look Dave I’m a lawyer and no I don’t because I’ve seen over the years that there are potential problems with those sorts of do it yourself Wills, I mean I’m not saying every do it yourself Will isn’t a legal Will, but there are circumstances there where you need expert advice in respect of what you want to do and as I said I have had several instants, when I say several, many instances over the years where people have got into trouble using do it yourself Wills.

CS       How old are you Dave.

C7       31 but I’ve got 3 kids and we’ve just sort of started to think about this last night actually.

CS       Yeah, it’s never too early to get a Will and I would have thought when you start getting any kind of possession, whether it’s a car at 23 you should think about putting a Will together, no.

BB       Oh very much Chris and in fact more so these days where young people have superannuation, they perhaps have death benefits attached to their super policies, so it’s extremely important that, yeah everyone has a Will.

CS       Alright Dave, there you go, not recommended by our expert here, but entirely up to you. Graham, hi.

C8       Yeah hi, thanks for taking my call. I’m single, both my parents have died, I have no children, have never been married, I have 2 brothers both you are married. What I’ve done with my assets, I’ve left half my assets to charity and I’ve left the other half to my 3 nephews. Do my brothers have a claim on my Will?

BB       Graham on the face of it I would think not. Again you have to go back to that crucial test about, are your brothers legible people to bring a claim. And unless they were dependent on you, part of your household, perhaps your carer then on the face of it they would probably not be able to bring a claim against your Estate.

C8       Fantastic, thank you very much.

CS       Good on you Graham, thank you. An email here from Larry he says: “Is there any way I can legally make my only sibling who is the sole power of attorney of our elderly parents finances, provide copies of those financial records to me? A little bit of back ground, until recently my brother and I had been joint POAs of our elderly widowed mother’s finances for many years, unfortunately animosity recently developed between my brother and I after mother entered a nursing home, he told mother many false stories about me, so she changed her POA to give full control of her finances to my brother only“. First of all two questions, I’ve got. First of all, secondly lets answer Larry’s question but the first question is if his mother had given POA to her sons, how is it that she can say that it is no longer the case?

BB       Well she is entitled as anybody can to revoke the appointment. So if she has appointed 2 of her children, she can simply revoke that appointment of attorney to her 2 sons.

CS       Before it’s enacted though?

BB       Well, when you say it’s enacted she has made the appointment, presumably it doesn’t need to be used at present time, but that appointment can easily be revoked and she can make a fresh appointment, which over rides the previous appointment. That being said, Chris though the prior attorneys, attorney or attorneys need to be notified of the revocation.

CS       Right ok, so there needs to be an exchange of documents.

BB       Yes.

CS       There’s your answer. Ron in Blakehurst.

C9       Yeah just wanted to know what gift taxes, if I want to give my son a car, a house that I leave in right.

BB       Yeah Ron I’m not a tax lawyer or a tax expert.

CS       It better be a shanty Ron.

BB       But there is no, as far as I’m aware there is no gift tax in Australia. So.

C9       So I could just give him that lot, sign the Deeds of over to him, do the paper work.

BB       I mean that being said of course, when you do gift things and you are on a pension or Government assisted benefit that may affect the asset and income test of what you do, but just per say, if your.

CS       But there is a limit of the amount of cash you can give.

C9       Oh no, it’s just a property, a house that’s all.

CS       But isn’t there a limit Brian on the amount of money you can gift to sons and daughters?

BB       Not if your just an individual that’s not in receipt of a Government pension or benefit.

CS       Right.

BB       If you’re just a person that isn’t in receipt of any of those, you can give away whatever.

CS       But if you are Ron.

BB       Well you would have to disclose it to Centrelink.

C9       Righto, that’s no trouble.

CS       Good on you Ron, thank you.

C9       Thank you.

CS       Tanya last question, go for your life.

C10     Yeah hi, I’ve got 2 children to my first marriage, they are 14 and 12 now, they have had no contact with their father for 10 years. We have joint custody and I have sole residency that was through the WA Family Court. In the event of my death before they turn 18 years of age, can I make a provision within my Will that I want my children to stay together with my current husband and their 2 younger siblings?

BB       Well you can put that in your Will but it’s probably not going to be binding, well it won’t be binding.  Sorry Tanya is it.

C10     Tanya, yes.

BB       You can certainly put as a wish in your Will, but there are existing orders and I would have thought that a lot would depend on the attitude of your first husband. Presumably if you died, passed away then he would want to assert his parental responsibility over the children.

C10     He has tried severe it a number of years ago, he lodged documents through the Parramatta Family Court, they rejected them, they didn’t think it was in the best interest of the children at the time, but yeah I knew it would be a grey area, but I thought I’d ask.

BB       Well look Tanya at the end of the day it’s up to the Court to determine what’s in the best interest of the children and that will ultimately be the test if it was contested it.

C10     Fantastic thank you.

CS       Thank you Tanya, thank you for the call. I’ve run out of time, thank you for your extended presence here in the studio Brian. Much appreciated.

BB       Thanks Chris, thanks for having me.

CS       No problem and next time you come on we’ll get you to sing American Pie, the 7-minute version of it.

BB       All of Gloucester will listen.

CS       I’m sure they will be, we’ll be rating very highly in Gloucester, thank you Brian Barlow from Turner Freeman, Wills and Estates this afternoon, thank you so much for your calls.