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Unfair Wills Claims with John Mann

Legal matters with Turner Freeman Unfair Wills Claims with John Mann –14 April 2017

Tuesday, 14th of April 2017 


CS – Chris Smith/ JM – John Mann /C1,2,3, etc – Callers 


Announcer     And now, Legal Matters with Turner Freeman Lawyers: great people; great results; great value.

CS       Yes moving for love, if you’re a bloke, it’s doing a cronk. Just quickly, police divers have recovered those three bodies that were submerged in a vehicle near Tumbulgum in Northern New South Wales, that’s now being confirmed by police. Well Legal Matters, as you know we use the expertise of Turner Freeman Lawyers each and every Tuesday on various subjects and today its wills and estates so if you’ve got a question on that subject 131 873. Turner Freeman of course has also put up a $100 Westfield voucher which I will give away to a caller between now and 2pm during the segment. Turner Freeman Lawyers provide a range of services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, Wills and estate. Their New South Wales offices: Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong and their Queensland offices: Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns. 131 873 is the telephone number. John Mann joins me in the studio. He’s based at Turner Freeman’s Penrith office but also sees clients at Windsor and Gloucester as well. A day in Gloucester would be nice.

JM      Nice little town, Chris.

CS       Nice little town, I’d like to hear about that. Look, I’ve had a person waiting on line for quite a while already, they’ve been in line so I wanted to take that call to start us off if I may John. Margaret, you’ve got a question for John, go right ahead.

C1       Oh yes, good afternoon Chris, good afternoon John, I was just wondering, John, if you could explain to me the precise duties of an executor of a will. I was wondering whether to appoint both my children or would it be too orneriest to choose one of them.

JM      Well the number of executors and who they are is entirely your choice but they are the people that you are appointing to carry out your wishes. Generally speaking the duties of an executor are firstly to get probate of your will; probate is the authority from the courts for the executor to proceed with the administration of the estate, having got probate they pay your debts if any and distribute your estate according to your wishes. So there is no real reason why both children couldn’t take the task, there’s no particular marks for being the executor but if you feel it better for them to share the task and they don’t fight like the kill kitty cats will, go right ahead.

C1       Would they both have to be present if they had to sign some documents?

JM      Not necessarily together but they will both have to sign if they’re joint executors but it doesn’t necessarily mean they have to be together. They both sign but they can sign on separate occasions.

C1       Oh I see, yes. I just thought it might not be convenient for them both if they have to get together.

JM      Well that’s something you have to give thought to, so if you have an executor here and another one in Belgium or somewhere, it’s not very suitable.

CS       Good on you Margaret, thank you for your call. Richard, go ahead, John is listening.

C2       Good afternoon John and Chris.

CS       Hi.

C2       The question is: I have property in England, do I need a separate will in England for?

JM      I recommend you do, it may not be entirely necessary because English law or its derivation is part of the Australian law from you know the old English empire, the commonwealth etc so recognition would be given to an Australian will. But I do recommend you get advice about a will in the UK because the UK also has very, very significant death duties and the making of a will there could be very important as to who you nominate your beneficiary. I recommend that you do.

C2       Alright, I appreciate that.

CS       Good on you Richard, thank you. Kerry in Maitland has a question for you John, go ahead Kerry.

C3       Hi, thanks so much for taking my call. I’d just like to ask the question: if you leave the money to somebody in your will, and they think that’s not enough, I deserve more, if they challenge the will do the funds come out of the estate or do they have to pay for it?

CS       Good question.

JM      That’s a good question. Generally speaking, if they have a legitimate claim and they receive more, the courts will probably make the estate pay the cost. The cost the executors pay who defend these cases have to come out of the estate anyway, it’s a question of whether the person challenging also gets their cost. It can be a very vex question, but if somebody brings a very foolish case and gets no result, if possible the court might order them to pay the costs, at least pay their own at the very earliest. So it’s a difficult question to give you a direct answer to.

C3       Okay, alright thank you. 

CS       Okay but Kerry, I’ve got to give you the $100 voucher, Westfield voucher on that score because that is a really good question and obviously as John said it depends on each and every circumstance but it is an interesting one and may change from case to case. Kerry stay online you’ve got the $100 Westfield voucher.

C2       Thank you very much.

CS       Good on you stay there Kerry. Sonya, go ahead.

C3       Yeah, hi, thanks for taking my call. I’ve got a bit of a problem with a will that was done about three or four years ago and the relative since then died left my four children with I think about $7,000 each. The other parties in the will, the executors of the will said that they can’t release that money because the children wanted to put it into a house, they’re under eighteen and they wanted to put it down by a house and they said “no because if we do that you can sue us for not keeping that money until you’re eighteen.” There is no provision on the will, nowhere written where it says they need a trustee or that they need that money kept for them. I went into a trustee account with the two executors because they pre-entered badly some family issues that they said would have occurred but they never did and I don’t think they even thought of so this has sort have come up. I’ve got a daughter that’s nearly eighteen, my other son’s sixteen, they would like this money to put together a deposit but yeah, we’re getting “no you can sue us if we give you the money” but I can’t quite see how that would work myself.

JM      What does the will say about the gift to your children? Does it specify an age?

C3       No, and it doesn’t say it needs to be in a trustee account or anything either.

JM      Well the difficulty is the general law says that you can’t inherit the money until you’re of age; you have to come of legal age. The executor is perfectly entitled to say that I’ll hold this money in trust for you until you come of legal age.

C3       And that’s the eighteenth?

JM      Yes, eighteen is the legal age unless the will specifies otherwise, but there might also be in the will what is called a power of advancement, where the trustee is able to pay some or all of the funds for the maintenance, education advancement in life of the children but I don’t know if there is or there isn’t so I can’t comment on that.

C3       There was no maintenance of a trustee anyway, there was no mention of a trustee, there was nothing. That money, according to the will what’s left for the kids didn’t need to be put in a trustee account.

JM      Well the trustee is perfectly entitled to withhold it until they come of legal age.

C3       Okay but the kids can’t sue them or anything?

JM      No.

C3       Because that’s what they’re saying. They’re not going to give it over, they could hand it over but they’re  not going to because the kids could sue them for not giving it to them when they’re eighteen and they could be entitled to another $8,000.

JM      Well I think the trustee is entitled to take that view.

C3       Okay.

CS       Alright Sonya, thank you very much. 131 873 is the telephone number. I just want to give a quick plug to the people at PCYC in New South Wales, you may know, they’re celebrating their 80th year in 2017 and for those who might be anywhere near the city tomorrow, they’re holding what’s called ‘Time for Kids’ and it’s a  special event. The city of Sydney Club patrons, entrepreneur, Mark Bouris and league legend, Brad Fittler will be behind bars basically in Martin Place between 7am and 2pm, no they will be there between 9:30am and 11am. They’ll be behind bars and so they’re fundraising and the only way to get them out from their little jail cells in the middle of Martin Place  is to give generously and it’s one of the ways they raise money for the great programs they do at the PCYC so if you can get to Martin Place sometime between 7am and 2pm tomorrow there will be a jail cell there, look for either Mark Bouris or Freddy Fittler and you’ve got to try and get them out of jail and dedicate some money to the PCYC, great cause, 12 minutes away from news. For Turner Freeman we have our Legal Matters segment on right now, we’re talking wills and estates and we will get straight back to your calls. Sam, John is listening, go ahead.

C4       Hi Chris and John, how are you guys going?

CS       Good thank you.

JM      Good thank you.

C4       I’ve just got a question, my father at the moment is terminally ill, now my mother is also pregnant at the same time; the child hasn’t been born yet, I was just wondering, if we’re in a position where my father actually passes away and the child isn’t born, is there a situation where that child is entitled to anything under the will?

JM      Yes. That is a very old concept which in French is au ventre sa mere meaning “in the stomach of the mother” now if the child is conceived at the time the person dies and is later born alive then they inherit.

C4       Right and their share of inheritance, how is that determined though?

JM      That will depend on what the will says.

C4       Oh right, right. So it is possible?

JM      It’s certainly possible, it’s to take account of that very situation where a child is conceived and living but not yet born.

C4       Alright, thanks for that guys.

CS       Good on you Sam, appreciate that. 131 873, we’ve gone through some callers this afternoon. Graham on the Sunshine Coast, go ahead.

C5       Yeah, hi Chris thanks for taking the call. Just one for John, just wondering, I have a brother that has been excluded from the will, he’s been a drug addict for probably forty odd years, a lot of abusive phone calls to mum and dad and so forth, so they decided to exclude him from the will and all the assets now will be shared between my sister and myself, can you tell me if he has a claim at all?

JM      Where abouts are we first? Queensland or New South Wales?

C5       Queensland.

JM      Queensland. I suspect he may as a child but the precise problem is in New South Wales certainly he would have a claim and I suspect he would in Queensland and there are generally time limits on claims to be made and if I remember rightly I think it is in Queensland, it’s six months from the date of probate of the will. If you’re one of the executors, it would be very wise not to distribute the estate until that time has gone by but my answer to that question is generally yes as a son I think he would be eligible to make a claim.

C5       Alright John, thanks very much for that. I appreciate it.

CS       Good on you Graham, I appreciate that too. Paul, hi, go ahead.

C6       I’ve just got a question, a bit of an unusual one but I was in a relationship, I have two children, my partner has passed away, I’m a strange relationship from my in-laws, I would call them my in-laws but we weren’t married. Now my in-laws are sort of elderly now, probably you know, not much longer to live. Now even though we’re a strange, we have nothing to do with each other for many, many, many years, are they able to claim against the estate if they are left out of the will? Being, the grandchildren, the paternal grandchildren

JM      Sorry, just let me get this in order, your partner passed away and it’s her parents?

C6       Yeah it’s her parents exactly and their grandchildren

JM      Well in terms of claims against your will, is that what you’re saying?

C6       When they pass away, obviously they’ve got first cousins obviously but they’re a strange so the first cousins, the other grandchildren would a fortune of the estate but obviously my children will be left out because we’re a strange but they contested the will would they have a right to contest that will?

JM      I see, as your children as the grandchildren contesting their will, yeah the grandchildren can in some circumstances contest the grandparents will but the circumstances are very limited. They would have had to have been dependent on those grandparents at sometime for financial support and if you can’t prove that then a claim by a grandchild is going to be excluded.

C6       Oh okay, so they need to be dependent at some stage?

JM      Yes. Grandchildren are not automatically eligible in any circumstances but they have some rights in some situations but not automatically no.

CS       Alright Paul, got to leave it there, thank you very much for your call and for all those I couldn’t get to, I apologise. We’ll get John in at a soon to be arranged time and we will get to your calls eventually. John, thank you very much for coming in.

JM      Thank you Chris.

CS       John Mann from Turner Freeman Lawyers our Legal Matters segment which we have each and every afternoon.


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