Special Counsel providing Q & A on the 2GB Chris Smith Afternoon Show discussing issues in relation to Wills & Estate Law – 10/06/14

Tuesday, 10 June 2014

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

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CS       Brian Barlow is from Turner Freeman, this is our regular segment. Today the topic is Wills & Estates. One of our most popular topics and whether it’s about a Will your formatting at the moment, maybe a Will you are contesting, an Estate that you need some guidance about or gifting, maybe there are questions there that you’ve thought about that you’d love to pay a lawyer to help you with! How about you get it for free!! Right now courtesy of Turner Freeman, free legal advice unheard of 131873 is the telephone number, Brian Barlow is your man and he is ready to take your calls. Brian thank you very much for coming in.

BB       Thank you Chris

CS       In the old day’s disputes over Wills would sometimes carry over a couple of years. Why have we got a more stream line process now? What’s the longest period of time Wills tend to be contested for?

BB       Yeah, well in terms of the process starting and finishing, once you file a Summons, if it’s a fairly short matter than you would expect to probably get on before 12 months. The current Duty Judge in these Family Provision matters keeps a fairly tight rein on timing and Court directions are strictly adhered to. So certainly in the old days matters went on for a long while whereas these days, they are heard fairly quickly in the overall scheme.

CS       Some people put in Wills my belongings go to… or my property goes to … others, can they actually get pages and pages of itemised lists.

BB       Certainly

CS       With a whole heap of recipients

BB       Yes, I have had Wills where there has been pages long of personal items listing certain beneficiaries to be the recipients of those items.

CS       Like these cufflinks go to….

BB       And its very important of course to correctly describe the item, because if you say my cufflinks you might have half a dozen pair of cufflinks, so it

CS       And on it goes

BB       And on it goes, so very important to be specific, so the gift doesn’t lapse

CS       Ok let’s get to some callers, I’ve got some questions to ask about Enduring Power of a Guardian as opposed to Enduring Power of Attorney, but first John has a question for you, Brian is listening John

C1       Hi Brian are you there?

BB       Yes John

C1       My step mum has just died and left my dad, he is still alive. The house was in both names as joint tenants in common and she also had money in the estate. Now she has left the house and the money to her side of the family, where does my dad stand with the house?

BB       Well I’ll have to clarify with you John, you said that they own the house joint tenants in common.

C1       I think that’s what he said

BB       Now it would be one or the other. It would either be joint tenancy or tenants in common. And if it was a joint tenancy, then under the laws of survivorship the property would pass automatically to your father, but if it was tenants in common it means that your step mother could only will her half of the house for want of a better word

C1       So, to someone else

BB       Yes, to someone else

C1       Where does that leave my dad, he would have to sell the house?

BB       Well no, he would, he could bring a claim, he would be an eligible person under the Succession Act to bring a claim for greater provision out of your stepmother’s estate and if there is other assets, then because he is the spouse, he would be looked at fairly favourably in any further claim for provision out of her estate.

C1       Ok so it doesn’t automatically go to him, no matter what?

BB       Well not automatically, it very much depends on how the assets are held

C1       So which one is the best one for him?

BB       A joint tenancy, which means he would inherit the house under the rules of survivorship

C1       Thanks for your help

CS       Good on you John, thank you. A false Will Tony, what’s your question

C2       Well I’m wondering, my mother is very elderly, she is in her 90’s and she lives in a retirement village in the country and I’m concerned that her relatives, on her side of the family would possibly introduce a false Will, to get some of the assets, what do you?

BB       Well you would have to look at the scenario at the time of her death, that being said of cause, there are formal requirement for the making of the Will and it has to be properly signed, it has to properly witnessed, so in terms of, on the face of it looks as though it would be a false Will, one would hope that you could look at the document itself and any surrounding circumstances, that’s why it is important to engage a lawyer to prepare and have the Will signed in front of for those sorts of reasons

C2       Yes, I want to thank you, can I say something before I go, I’m a recent convert to 2GB, but I’m loving it!

CS       Excellent Tony, we like to hear that

C2       I mean that

CS       Good and whenever anyone wants to get stuck into us, all you have to say is do you listen to 2GB?

C2       I do now

CS       Because quite often Tony, the people who want to take us on about what they hear, hear things third hand and they don’t hear it for themselves.

C2       Yes

CS       Good on you Tony

C2       Thank you sir

CS       Much appreciated, 131873 Molly go right ahead

C3       Well it’s about a Will, my nephew died and he left $150,000.00 to go in trust for his 3 children, the little girl is 5, the other boy is 17 and the eldest is 19. Can his wife go to the solicitor and demand, she took $50,000.00 out of each of their money?

BB       Well in short Molly, no

C3       Well they done it, the solicitor gave it to her and John that’s his eldest brother, he is one of the executors, now they sent an email down, well he can’t touch the computer because he’s been in a wheel chair, he got hurt at football 20 years ago and he can’t write, he can’t do nothing for himself. So he had to wait until somebody come to send her back an email to say defiantly she can’t have any more money, she wants money now for the little girl’s uniform, but my sister bought all the little girls uniforms, all for the winter and all for the summer

BB       Well can I say Molly, most Wills in those situations provide for a trustee to look after the beneficiaries monies if they’re infant beneficiaries, that’s generally either under 18 or 21. However most Wills if there are infant beneficiaries do provide that the trustee can advance monies for those infant beneficiaries for their maintenance, advancement, education etc along the way but that’s generally at the sole discretion of the trustee appointed under the Will

C3       He stay with Ian until the Will was, cause he only had a few days to live. It was to be tied up until the 3 of those children reached the age of 25

BB       Yes, but as I said it would be, normally the Will would provide for advancement of certain monies before hand, but it would sound quite odd that there was a $50,000.00 amount given to the children’s mother, without knowing the circumstances of course, but that wouldn’t appear to be normal

C3       Well I know that she got $300,000.00 that come out of their insurance, Ian’s insurance and she can have the house, well the house would be worth $500,000.00 or $600,000.00, but she is a real alcoholic, I don’t know what they’re going to do, my sister they’re nearly off their head, this is in the country

BB       Look it’s very difficult to comment on specific circumstances when you don’t have a copy of the Will in front of you or, and often we hear things third hand, but certainly the personal legal representative of the deceased person is the appointed executor and trustee

CS       Good on you Molly, thank you very much for your call.

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Brian Barlow is with us from Turner Freeman, we are talking Wills & Estates this afternoon. Just very quickly there is an important difference between an Enduring Power of Attorney and an Enduring Power of Guardian. Describe that difference to us Brian

BB       Yes Chris they are two very distinct documents. An Enduring Power of Attorney looks after a person’s legal and financial affairs, whereas the appointment of an Enduring Guardian looks after a person in terms of their health and life style decision making. So they are 2 very separate powers and in fact they are as equally important documents, but there is that distinction. I think a lot of people sometimes get confused because the word enduring is used in both documents, but they are different in that regard.

CS       Ok 131873 a question on Probate, Robert, Brian is listening

C4       G’day Brian how are ya

BB       Yes good thanks Robert

C4       Mate, I’ve got a question. A few years ago like 6 years ago when my mother passed away, she didn’t have a Will and she had a few thousand dollars left in her nursing home account. We gave in a form of a cheque to the lawyer with all her paperwork. Now it took the lawyer 6 years to actually get the house and the Probate done, there was only 1 house, 4 names, right

BB       Yes

C4       Since then my brother has passed away, right, so now it’s time to get it back to 3 names. We still haven’t got, actually he has just finished that Deed, right. But when we approached him to give us the Deed, right and return the cheque that he fixed up, he said there was no cheque, right

BB       Yes, yes Robert

C4       We’ve got copies of the cheque and copies of the letter we gave him with the cheque, right and he says there’s no trust fund and there never was.

BB       Look Robert I am presuming if there was a house involved that there would have been Probate required, but you mentioned that your mother died without a Will

C4       That’s right

BB       Which means there couldn’t have been Probate of the Will granted, what would have had to have happened is there would have had to be Letters of Administration of her estate applied for which is a similar type application to Probate, but it’s not Probate. You mentioned there was a few thousand left, now that may well have gone to cover the legal costs of applying for the Letters of Administration and the filing fee with the Supreme Court.

C4       I agree 100%

BB       So, depending on how much

C4       The letter stated that there was that trust fund plus the cheque

BB       But

C4       If they lost it

BB       Yeah somebody, who applied for the Letter of Administration do you know?

C4       They did, they lawyers, I understand that he paid all his disbursements and fees, right but he didn’t use the money that was in the trust fund because, there was no fund

BB       Look Robert it is very difficult when you don’t have the facts in front of you, but certainly you’re entitled to a response and I would insist on a response.

CS       Alright Robert, I’ve got to leave it there, because we’ve got so many callers who want to have their questions answered, David go ahead

C5       Hello

CS       Hi David, go ahead Brian is listening

C5       Ok, I’ve got an uncle who has bought his own house before he married. His wife had her own house before they married. He said all along to his fiancée now wife, this house, we have no children, I want this house to go to my niece and nephew. So that’s what’s been told, that’s what is in his Will, now he has got of bit of doubt as to whether, when he dies, obviously legally the house will first pass to his wife. Can he be sure that the house will actually pass, he is going to leave his wife in the house until she passes away, but can he be sure that the house will pass on to his nephew?

BB       Well on the face of it David, no. If he leaves his wife, presumably a life interest in the property with the interest in remainder to his nieces and nephews, then if the wife was not left adequate provision in the Will, she could bring a claim or greater provision under the Succession Act. So there are no guarantees in that, but you’d have to have look at the whole of the financial circumstances of the wife, I mean you mentioned that she had a home, presumably that was sold perhaps and they combined their assets and they bought one home

C5       No, no she still has it and she actually has more money than him

BB       Yeah

C5       Or more assets

BB       Well look that doesn’t automatically preclude her from bringing a claim. A person such as spouse or a de facto are eligible people to bring a claim and you would have to look at whether adequate provision was made for her and whether there should be further provision made for her

C5       Can a lawyer help with this?

BB       Yes certainly, a lawyer can give advice in that regard

C5       Would a letter be sufficient, a letter of intensions attached to the Will or would you need something better

BB       Well any evidence as to what the deceased’s intensions are, are important. I mean I would do more than a letter, I would suggest to have it referred to in the Will or perhaps a Statutory Declaration accompanying the Will

C5       He better get off to a solicitor, thank you for very much

CS       Good on you David, thank you. Look at the end of the day, I know people try and deal with things themselves, but could they be creating more work not going to a lawyer. Now I know you actually don’t solicit for work here, but you would appreciate the fact that your kept in work, so but genuinely is it better for people to go to a lawyer on issues as complicated as the last one and the one before

BB       Yes, look Chris unreservedly I say, yes. You know, I’ve always been a believer in horses for courses. And the difficulty that I find during today’s time is that people have access to the internet and you know, sometimes a little bit of knowledge is dangerous

CS       Yes

BB       And you know without considering all the factors and the options, so yes I’ve seen some people create some real problems for themselves because the sought to save money early on, when you know money well spent early on can spot any problems later on

CS       It’s like health, you know people start to get on the internet now and try and work out what their problem is and they have it their mind and they set up all sorts of perimeters about their lifestyle, when they probably best just to go to the doctor at the start and get the better advice right at the beginning. Mark go right ahead, Brian is listening

C6       Yeah, Brian what I’m ringing up about is, my father passed away about 4 years ago and he had a partner, she wasn’t a de facto and in the Will she got given a life tenancy of a property he had. She chose not to take that property so we sold it and we have the money held in a bank account so she can buy another property. There has been no contact to buy another property at all. The feeling we have is she has no interest in taking up that offer. Now is there any way we can get that money. Like do we have to come to an agreement with her or is there a time limit that it lasts for, or?

BB       Well if she is a beneficiary under the Will in terms it, I presumed that the Will provided that she had a life interest, but gave her the opportunity to sell that property and perhaps purchase another property under the same trust as the life interest. So again it’s not an uncommon provision. I would be very hesitant to, without first getting her consent by way of a Deed, that she gives up that life interest, before you did anything with it. I mean ultimately if, you know you can’t locate her or can’t get her to sign a Deed, I guess the last resort is making the appropriate application to the Court, but certainly I wouldn’t suggest you do it without getting her to either consent by way of a Deed

C6       So we should go and say to her, hey if you’re not interested, come to some agreement that she releases it

BB       Yes

CS       Good on you Mark, thank you mate I must leave you. That was an interesting question and a question that would pertain to a lot of people at the same time. Brian, thank you very much for answering our questions, we always have several that our left over mainly because people don’t jump in at the very start, but I can only suggest that when we have legal matters on next Tuesday that people get in early and get your questions answered, thank you Brian

BB       Thanks for having me Chris

CS       Alright, Brian Barlow from Turner Freeman, sponsors and participants in our legal matters segment each and every Tuesday on the programme.