Unfair wills podcast with John Mann

Tuesday, 2 May 2017 

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

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

CS       Okay, we’ll be taking your calls during this period of the program. John Mann is here from Turner Freeman Lawyers. We get a lot of calls on wills, and today we want to look at unfair wills and whether you might have a case that you think is worth pursuing – maybe through Turner Freeman – to try and get some kind of justice that you think you deserve. Now, we’ve got a $100 Westfield voucher as well, which is our regular giveaway to one of our callers between now and 2 o’clock, and we’ll choose one of those callers very, very shortly. But Turner Freeman Lawyers can provide a range of legal services: compensation and negligence law; asbestos litigation; superannuation and disability claims; family law and employment law; wills and estates, and property law. Their New South Wales offices are in the CBD in Sydney, Parramatta, Campbelltown, Penrith, Newcastle, and Wollongong. Queensland offices: Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns. If you’ve got a question: 131 873 – sock it to us. John Mann, welcome.

JM      G’day, Chris.

CS       Okay, I want to ask this question before I take calls, because I ran into a mate of mine from school who was explaining about the fact that he’d lost his dad and there was a will left over, but the will that was left over was a couple of A4 pages with a whole heap of scribbled notes that he’d left for the family as directions to them as to what to do with his estate. He never went anywhere near a lawyer. Do you find that that happens sometimes?

JM      It does, Chris, umm, there are some provisions in the law where a document that has been made informally and the words not signed and witnessed in a normal way for a will, that can nonetheless be a will, because it depends upon the circumstances in which it was created-

CS       Uh-huh.

JM      And what the intention was of the person who created it.

CS       Right. So it can formulate the basis of what happens to someone’s assets when they pass.

JM       Yes, yes. And it has to be a document. Now a document doesn’t necessarily mean a piece of paper – a document can actually be an audio tape, it can be a DVD, it can be all sorts of different things. But it has to comprise some sort of a recording: it has to contain the testamentary intentions of the person making it, and it has to be intended by that person to be their will.

CS – But- but surely once you get somewhere near a lawyer, and it’s placed through the appropriate legal permissions, it’s a more valuable document?

JM      Uh, well it could be the only document – it could be the making and breaking of whether the document is a will or not.

CS       Well – well, yeah, okay. But wouldn’t it be better, and is it not better advice to tell someone who’s written out their intentions to go and get their will accredited?

JM      Of course! Of course, because there is no guarantee that an informal document will be declared by the Courts to be a will. It’s possible, but it may not – whereas, if you had a will properly and professionally made, first of all, it will contain what you want, and be done in a fashion that is such-

CS       Because a family member could turn around and say, “well hang on, he scribbled some notes on an A4, two A4 pages – he was actually under enormous distress and illness at the time that he did that; I know because I visited him or her. How can this be a valid will?”

JM      That’s, well, that’s a very good point. Uh, and as I said, under the legislation, there is tests for what is to create a valid will, but probably the most important thing is that when the person has done it, they say, “right! That’s my will; I have made my will.” It’s not a question of them writing down what I want my will to say, but the fact that I have written my will itself.

CS       Okay. Selvin is our first caller this afternoon on our legal matters segment talking wills. Go ahead Selvin.

C1       Hi. Myself and my wife own our house-

JM      Yep.

C1       And we want to write a will for our daughter, and I first thought that because both of us own the house that we can’t write to our daughter. Can we do that?

CS       Okay, so he and his wife own their property.

C1       Yeah.

CS       They want to give the- they want to leave the property to your daughter, Selvin, when you pass away.

C1       That’s right.

CS       And the question is?

C1       Can we do that? Because some- I was told that we couldn’t do that if one of us pass away.

JM      Well, that depends on how the ownership of the property is – yourself and your wife own the house?

C1       Yeah.

JM      Well, if one of you should die, have you got a will that leaves the house – or the does the house go to the survivor of you?

C1       Yes, yes.

JM      Okay, well then.

CS       But are you talking about giving her the house before you die?

C1       No, no, after we die.

JM      After you die? Well of course, you just simply make that provision in your will.

C1       Can we – before both of us – both of the owners…can we write a will now?

JM      Of course you can! Of course you can, that’s the whole.

CS       And you should!

JM      That’s the whole point of making one-

C1       Yeah.

JM      -in anticipation of what the future may bring.

CS       And you should.

JM      And if that’s your intention to leave it to your daughter, well then that’s what you should do.

C1       So we can write it. Because I was told…well someone – my wife was told by somebody that you can’t write it because both of us own the w – own the house.

JM      Well that’s at the present moment, but we’re talking about the future when you both pass away. And that’s what you – that’s what you’re going to be putting in your will.

C1       Yep. All right, thank you very much.

CS       Okay Selvin, thank you for that. Angie, hi.

C2       Hello, yes, I was wondering, I own a property with my – I own half the property, it’s a property with a granny flat, purpose built property, with my daughter and son-in-law. Umm, if I cark it [laughs]

CS       [laughs] Put so eloquently, Angie!

C2       Yeah, well when I cark it, I can’t give you the exact date, but it’s not too far away – but I’m trying to ensure that my daughter gets my half of the property, and my son-in-law does not benefit. Is there some way I can do that?

JM      Well first of all, it might be a difficult question, apart from you determining your departure day-

CS       [laughing]

JM      What is the nature of the ownership of the property by yourself and your daughter? So, there’s various forms of ownership: there’s what we call a ‘joint tenancy’, and there’s what we call a ‘tenancy-in-common’.

C2       Tenancy-in-common.

JM      Yeah, so that’s- you’re quite sure of that?

C2       Yes, yes.

JM      Then, then what you must do in your will is to say that you leave your interest in that property to your daughter. And that’s what you have to say.

C2       Yes…but-

JM      Now, no one can give you great assurance as to what would happen if you were to pass away and your daughter inherits the house; what happens after that, you have no control in. All you can provide for is that if you should pass away, your daughter is alive it goes to her – or you could say if she’s gone before you and she has children, it goes in trust for her children. But that’s really the only way you can avoid that situation.

C2       Oh, okay, I can’t get him to sign something or an agreement that he won’t…

JM      Hmm…not I think that would be legally effective.

C2       Okay.

CS       All right, Angie, thank you very much for you call. Barbara’s got a very simple question for you John. Go ahead, Barbara.

C3       Hello, John. The will kits you get from the Post Office, are they legal?

JM      If they’re done properly, of course they are.

C3       In what way do you mean done properly?

JM      Well, they – if – they have to be completed, uh, with what you want your will to say; they have to be signed by you in the presence of two independent witnesses who are there at the same time. Now that’s the only magical formula for the validity of a will. The real problem is that most people don’t get it right. For the sake of a fee to be paid to a professional, first of all, it’s-it’s more likely than not that what you want will happen. But the second thing is that if the professional person doesn’t get it right and mucks it up, there’s legal action against them – there’s recourse. If you do it yourself and you muck it up, it’s your own fault, and the lawyers have a field day.

C3       What way would you muck it up?

JM      Well, for a myriad reasons, um, the law reports of fuller cases about homemade wills that, where the people have got it wrong, even getting a description of property wrong, understanding the nature of their property, who their beneficiaries are, what happens if beneficiaries are named die before them – all sorts of questions.

C3       Right…okay. They’ve got funny names on there…I can’t think of what they are, where it means either the male or you or the other person who-

JM      Yeah, there’s still a few gender words in the law: ‘executor’ is a male, ‘executrix’: female.

C3       Oh, okay-

CS       Wow, say that again!

JM      ‘Executor’ of a will is customarily a male form, and the ‘executrix’ is a female form.

CS       Why wouldn’t executor be male and female?

JM      Well it can be…it can be. But historically-

CS       “-trix”? [laughs]

JM      Historically, they were the gender expressions, yes.

CS       All right, good on you. Thank you, Barbara for your call. Rebel, in Maroubra, go ahead.

C4       Hi. Look, you touched on this a moment ago about writing where there’s been an informal will, but I’m going overseas this week, and people have said, “hey, have you written a will yet?”, and I’ve thought, “no” – and now I’ve literally just typed something up because I don’t have a chance to get to a solicitor – but in what I’ve written is not for family – if that makes sense – I’m just curious about what sort of ramification that has.

JM      So what you mean – what provisions you’ve written are not necessarily for your family, is that right?

C4       Yeah, the provisions – I haven’t – it’s not left in my family. There’s a whole range of different people and-

CS       You’re allowed to do that, though.

JM      You’re perfectly in order to do that – the question is whether or not that document that you’ve created, you intend to be your will, without reference to any other document.

C4       Yeah.

CS       And don’t be worried; they won’t get angry at you – you won’t be here!

C4       No, that’s right!

CS       [laughs]

C4       -and look, I’ll be happy where all the money’s going, it’s nice – but umm, I just thought I’d just clarify, because you hear lots of different things and umm, causes a lot of family problems and fractures.

CS       Ohh yeah.

JM      One of the things you can do – as a tip – is to write on your document: “unless and until I make a formal or more formal form of will, I intend this document to be my will.” Write that on it. That will at least help.

C4       Great, I will.

CS       Good on you. Have a great trip, we’ll see you back!

C4       Yeah!

CS       [laughs] Rebel from Maroubra. 131 873, the telephone number, our legal matters segment continues after a quick break.

CS       We’ll get some details in the news coming up in around about 7 minutes time, but apparently, we’ve got another Gonski report coming down. Gonski 2.0, if you like! Malcolm Turnbull has just announced a new review. [sigh] I thought they were against what David Gonski has provided – but anyway, he’s doing another one for release in December this year on private and public school funding. We’ll get some details in the news and try and fathom what that’s all about. We’ve got John Mann in the studio to take your calls – 131 873. Damien, go right ahead.

C5       How’re you going, guys?

CS       Good, thank you.

C5       That’s good. Hey, quick question: umm, what happens with hex debt with wills? Y’know, everyone’s going-

CS       The hex debt? Now that’s something that’s very timely.

C5       Yeah.

CS       What happens to debts and things like hex debts, John?

JM      Well, debts generally are simply payable out of the estate, so if you have no estate, there’s nowhere to pay your debts from, and whoever is owed the money unfortunately has to write it off.

CS       So it’s eternally outstanding if it was a government debt?

JM      Well, what I don’t know off the top of my head, Chris, is to whether or not there are any provisions in the legislation, particularly for a hex debt where you pass away. But if it’s like any other debt, it would just simply be part of the money that is payable out of your estate.

CS       Damien, have you got a hex debt?

C5       I do and I don’t want to die yet.

CS       No, no, no, of course not – that’s not a good idea at all! But I can help your hex debt – how about I give you a $100 Westfield voucher?

C5       Oh, beautiful – thank you very much!

CS       All right, good question! Stay right there, Damo, and we’ll try and get the $100 Westfield voucher to you as soon as you possibly can. Anna has phoned in – Anna, go right ahead, John is listening.

C6       Hi John, thanks for taking my call. My grandmother just passed away recently, and left a property to her 5 children. My mother was one of those children, but she had passed away earlier. I was just wondering, can direct descendants of the dead beneficiary claim on a will?

JM      Uhh, it depends on what the will says…uhh, usually, it’s common where a person leaves a property to all of their children, they have a second provision in the will that will say: “If one of my children dies before me, leaving children themselves – in other words, their grandchildren – those grandchildren share their deceased parents’ share.” Umm, but it also depends on the circumstances when they passed away in relation to when the person making the will passed away.

CS       Do you know, Anna, whether there was that direction in the will?

JM      Do you know what’s in the will?

C6       No, I don’t know – we’re just in the process of doing that – I’m just trying to find out, yeah. I’ve got to get a copy of the will and all that to find out.

JM      Yes, see, ordinarily, that was what would happen-

C6       That’s what ordinarily – yeah.

JM      But what I’m saying is that that applies in cases of parents, children and family lines; it doesn’t necessarily apply for non-family.

C6       Yeah.

CS       Okay, Anna, I’ve got to leave it there – we’ve run out of time, but it’s an interesting question, and the best thing to ascertain whether that’s intact or not is to go and get a copy of the will. Thank you for you call. John Mann, thank you for your time.

JM      Thank you, Chris.