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Should you include organ and tissue donation in a Will?

Q & A on 2GB in relation to organ donations in Wills

Tuesday, 5 August 2014


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


CS       Brian Barlow from Turner Freeman Lawyers is in the studio this afternoon. Good afternoon Brian

BB       Hello Chris

CS       What’s it like outside? I haven’t had a chance to go out. Is it

BB       A little bit brisk

CS       A little bit brisk. I just noticed you’ve only got a shirt on and a tie, you haven’t got a coat on

BB       No I walked

CS       You walked, from the CBD

BB       Yes

CS       That’s very healthy

BB       Well I think I’ll get a cab back

CS       It was a little too much was it! It’s good that you are here and we’re talking today about Wills and Estates, if you have a question on Wills and Estates if you are involved in a nasty little battle at the moment over a particular Will or an Estate, this is the chance to have free advice, you won’t get free advice anywhere else, 131873 courtesy of our sponsors Turner Freeman and Brian Barlow is the expert, the lawyer in the studio this afternoon. I want to talk, before we take general calls on Wills and Estates and no doubt we will have plenty today as we normally do, but what about wishes for organ and tissue donation being placed in a Will. Do people do that?

BB       Well they do, but it’s probably against our advice because when you die it’s not common that people immediately see your Will.

CS       No

BB       Often

CS       Certainly not at the time they have to make a decision on your behalf as to what happens with your organs

BB       Certainly. We often get people ringing saying did my father or mother leave any wishes for their funeral or things like that. But of course that’s too late when it comes to organ or tissue donation. So it’s important that people, if they want to donate their organs or tissue that they register with the Australian Organ Donor Register, people also think by ticking the box on your driver’s licence application, not good enough

CS       And as a matter of fact New South Wales taken that away from you, it doesn’t apply because doctors and nurses are under strict legal instructions to seek permission from the family before they do anything about unharvested organs. Now that I know from being a board member on Transplant Australia, the rules have changed in the past 12 months, forget about your licence, it makes no difference whatsoever, so if you want your family to act in good faith on your behalf, you’ve got to sit down at some stage and tell your family what you wish.

BB       Yes certainly and it’s further backed up by registering your wishes on the register and in fact people, it generally applies to people who are over 18 years but if you’re aged 16 or 17 you can still register your intension although they will need to check with a family member at the time of death.

CS       Ok so there you go, that’s the way it works from now on and I don’t think we can tell our listeners enough because we have a very low rate of organ donation in this country, as a matter of fact much lower than most countries in the world. 131873 the telephone number, Brian Barlow in the studio from Turner Freeman we are talking Wills & Estates and Mark you’ve got a question for Brian, go right ahead

C1       Yes hello Chris & Brian

CS/BB            Hi

C1       A question on contesting a Will. I took my mother to organise a Will probably 18 months ago, I was her Power of Attorney and Enduring Guardian

BB       Yes

C1       The way the Will was set up was very simple, a third split between myself, brother and sister.

BB       Yes

C1       Now unbeknown to me in January this year her Will, my sister had taken her to change the Will

BB       Yes

C1       And it’s now sits as a half to her and the second half split between her 2 children and myself. So I’ve gone from a third to a third of a half and my brother cut out completely.

BB       Yes

C1       How do I sit, I wasn’t notified of the change, not that mum I guess had to, but am I eligible to contest that change of percentages

BB       Well, there are two factors that you bring up Mark, you can certainly bring, your a son of your mother, so you can bring a claim for provision out of the estate by saying adequate provision has not been made for you and you wish to have the Court determine what is adequate provision. The factors that deal with that of course are things like your financial circumstances and needs and the financial circumstances of other beneficiaries. The other issue of course to look at is in terms of that is the Family Provision side of things but it may be that there, you would seek to challenge the Will on the basis of whether you mother had testamentary capacity at the time or whether there were things like undue influence that made her change her Will, so there is a couple of factors that you could look at in terms of knowing what your remedies could be

C1       Yes ok, it just seem to be an all of a sudden change and my sister kept it to herself and my mother passed away a few weeks ago and it’s just surfaced now and

BB       Well certainly Mark it’s not an uncommon situation

CS       All the best with that Mark, thank you very much for your call as well. Now I should reiterate, we do this each and every week. I’ve a $100 Westfield voucher courtesy of Turner Freeman to give to the best question of the day. Alright so we’ll judge that during the 2 o’clock news when we finish our segment with Brian and we take our callers and $100 Westfield voucher will go to the best question of the day courtesy of Turner Freeman and I should make the point too Turner Freeman is now, has a column in your local newspaper, providing information on a range of local topics in a weekly legal matters column, so you can check out for instance this week’s column, which is naturally on Wills and Estates to coincide with what we are speaking about this afternoon on the Macquarie Radio network, Rick go ahead, Brian is listening

C2       Yeah g’day guys how you going

CS       Very well

BB       Thanks Rick

C2       Private purchasing a house off the executor of a Will who is the sole beneficiary of that Will

BB       Yes

C2       And I’m wondering how long it takes for house or for a Will to come out of Probate, if there is no one challenging the Will

BB       Ok, well there are a couple of, things aren’t set in stone, but generally you should apply for Probate within 6 months from the date of death

C2       Right

BB       And if you don’t the Supreme Court requires that you put an explanation as to the delay as to why you haven’t. The other issue is that you should not distribute an Estate within 6 months from the date of death, but you can, in theory you can put the deceased residence on the market immediately, but of course the completion of the sale would be the subject to the Grant of Probate because the executor needs to have the authority to be able to sign the documents to transfer the residence

C2       Right, how long does transmission normally take

BB       Well once Probate is granted transmission is a very short time, I mean it can take only a week or two

C2       Ok, perfect that answers the question

CS       Good on you Rick, thank you very much for your question. One question I want to butt in with on the subject of the whereabouts of Wills and Probate, in British Columbia you can electronically determine through a similar system to the Registry of Births, Deaths and Marriages, who has a Will and where it is kept, we don’t have a register like that do we

BB       No we don’t

CS       Should we, because I know it’s a debate in South Australia at the moment

BB       Look, my view is yes, we should. Working exclusively in this area, time and time again the questions are raised and if we had a Wills register that was an effective register than that in my view would be a good thing

CS       It doesn’t have to be the actual Will, it just has to be an index

BB       No, the fact that there is a Will and the date that the Will was done. There was the Wills register through the Births, Deaths and Marriages but the problem with it was that there was no requirement to update it, so if someone registered a Will and they made a later Will that wasn’t recorded, so it made the system a bit useless

CS       Null and void, Karen go right ahead Brian is listening

C3       Hi Brian and thanks so much, I really appreciate the time that Turner Freeman is doing cause it’s a great service to all of us

CS       Good on you

C3       My question is, I’m a beneficiary, my mum passed away last year and there is 3 siblings and one of the siblings is the executor of her Estate. Unfortunately, we disagree with a few things and we are not talking any more, two of them are, I’m not and that happened in February, mum’s Probate got passed in April and unfortunately one of her sister’s is now claiming on my mum’s estate being her property. I agreed to sell my share to my siblings and they agreed with that and now they have changed the locks on my mum’s apartment and I’ve tried to contact the executor’s solicitor and she said they are allowed to do anything they want, she can’t talk to me, although I’m a beneficiary and I’m just wondering how long do things like that go on for and I basically want to get on with my life and want to know what my entitlements are as a beneficiary

BB       Yes well your entitlement is basically to receive your entitlement under the Will. The executor is the, what’s called the personal representative of the deceased person, who basically has the legal authority to apply for probate and put into effect the terms of the Will. Of course the executor has the obligation to in a sense make sure that the estate is administered according to the Will and although they have rights they also have obligations to beneficiaries. I’m not quite sure what your question is in terms of timing

C3       Timing being if one of my mum’s sister now thinks that she would like to, she is entitled to some of my mother’s estate and there is an issue with that and I’m just wondering like how long does something like that go on for

BB       Oh ok

C3       Because probate has been granted

BB       Alright and it seems that you’re saying that your mother’s sister is bringing a claim for provision out of your mother’s estate.

C3       Correct

BB       Now, those proceedings would have to be commenced within 12 months of the date of death

C3       Yes

BB       That being said, and I’m not and of course I don’t know the circumstances, normally a sibling of your mother wouldn’t be an eligible person to bring a claim, unless they were sort of wholly or partly dependent on your mother and a member of her household

C3       Not at all, yep

BB       So it may be that they say that they are bringing a claim, but when push comes to shove, it may be that they are not eligible

C3       Right, with regards to the property, the property that we all had keys to it and now 2 of them have keys because they’ve changed the locks and haven’t advised me. And because the property hasn’t been sold and it is still in my mother’s name and we all have 3 equal shares, what happens with something like that

BB       Well the property if your equal shares, the property can be transmitted to the executor, as executor or it could have been transmitted to the 3 of you as beneficiaries.

C3       Yes correct

BB       Then you step in as equal holders of the property

C3       That’s right

BB       So it would depend on how the property was transmitted as to what the current standing is

C3       Ok, so it’s equal shares, so am I entitled to find out if they’ve changed the locks, is that correct or not

BB       Well I think you need to establish how the property is held, is it held by the executor or is it held by the beneficiaries

C3       By the beneficiaries

BB       It is held by the beneficiaries

C3       Yes

BB       Well that means you’re a third registered proprietor in the land

C3       That’s correct

BB       And you have the same rights as the others

CS       You need a key Karen

C3       Have you got a key Chris

CS       Exactly, you better get a key, I’ve got to leave it there, but good luck

C3       Thank you so much, I really appreciate it any way, thank you so much

CS       That’s ok, not an easy issue to get through. We are with Brian Barlow from Turner Freeman back after this

Ok $100 voucher, Westfield voucher for our caller of the week and we will award that straight after the 2 o’clock news. Don’t forget to catch up with the Turner Freeman legal matters column in your local newspaper as well. From Brian to Brian go right ahead

C4       Hi

CS       Hi

C4       I’m the last one left of 7 boys. My last brother died over 12 months ago. His executor was the Public Trustee, am I the next of kin? Because they never notified me of his death at all and I just found out on the grape vine and I was wondering if I had any sort of legal obligation

CS       Interesting question

C4       of his next of kin to be notified of his death

BB       Did he have any children or a spouse

C4       No

BB       So under, if he, did he die intestate do you know? Or did he have a valid Will

C4       No he had a valid Will, he left one million dollars to the eye hospital

BB       And that was it

C4       And that was it

BB       Under the laws of intestacy if he didn’t have a Will you would be the next in line as the surviving sibling, but in terms of notification, no you wouldn’t have had a right, it’s the executor named in the Will

C4       Yeah I see. I thought that was a bit miserable

BB       Well I agree

C4       Ok

CS       Alright Brian, thank you very much for that. One million dollars to the eye hospital, interesting. Sherry hi,

C5       Hi Brian and Chris, thanks for taking my call

CS       That’s ok

C5       Brian, my question is my husband passed a month ago. Do you have to have a probate done through a solicitor? or can it be a DIY thing?

BB       No you don’t have to have it through a solicitor. That being said of course, the process to the man in the street is a complicated process, I would advise you to get a solicitor but you don’t need to. It can be, you can go through the

CS       But it’s got to be a little bit more complicated than conveyancing surely

BB       Oh, very. I’ve had people that have attempted over the years to do their own probate and more often than not they end up coming to you and saying look I need assistance

CS       Or had a mental break down. Elizabeth go right ahead, Brian is listening

C6       Oh Brian, thank you. I am about to make a new Will. I have three children, two daughters and a son. My property is in my son and my name because he has helped me and still helps me, he lives with me, he is unwell. I am about to make the new Will and one of my daughters who will be my executor suggested that it might be all too much for him after I’m dead, like probate. Maybe I should transfer my part to him now in case there is a contesting of the Will, would they cost me very much in stamp duty

BB       Well it would cost you stamp duty on the value of the share being transferred. I take it is a residential property

C6       Yes an apartment

BB       Yes, because it’s from mother to son you would need to obtain a registered valuer, valuation of the property

C6       Oh would I

BB       Yes and you would have to pay the value of, sorry it would be half of course because it’s only the half share you are transferring

C6       Yes, see my property is worth about $700,000, so that’s $350,000 on my side

BB       Yes you would have pay what’s called Ad Valorem Stamp Duty on that $350,000

C6       Would be very much

BB       Look I haven’t got the tables in front of me but on $350,000, yeah look it’s going to be many thousands of dollars

C6       What up to $30,000

BB       No it wouldn’t be that much. From memory I think stamp duty on $500,000 is about $20,000

C6       Ok then

CS       You’ve got a good rough guide there for you Elizabeth. Shelly you are the last caller through, go ahead

C7       Lucky me, I’ve got a friend whose mother passed away two weeks ago. There’s a house probably worth $1.5 million. The two other siblings have been given a quarter share which once probate goes through they have got immediate access to, but my friend has been given her share all the funds have been put in trust at the siblings discretion. Can she contest that

CS       Do you want to contest the trust, that’s the question isn’t it

C7       Yep

BB       Well I’d have to see the wording of the Will, I don’t understand what the provision has been between the siblings. You would have to see the wording of the Will to know whether you could, but look certainly you can challenge the trust. It’s not a blanket thing, but you would have to see the wording of

CS       Ok Shelly I can’t get anything further through from you on that one, but that’s an interesting one, contesting the trust. We might deal with that one next time Brian it sounds interesting. Thank you very much for coming in

BB       Not a problem Chris

CS       Brian Barlow from Turner Freeman. I think I’ll give the prize today, the $100 Westfield voucher to Karen, who is looking for a key! Good luck Karen


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