Good Will Hunting

Dear John

I wish to make a will, but I do not have enough to go around. I fear that the Will may get into the wrong hands and cause upset to those who do not get a mention.

JB, Sydney

Dear JB

It used to be that when you made a will it was stored away so that not even your lawyer could find it. But in this digital age there are multiple copies of wills on computers, attached to an email, etc. This means that people worry that their relatives and friends may get to see the Will before they go and get upset that they have been left out or in some cases not been left enough. Such fear can drive clients to make wills that resemble an Oscar acceptance speech.

If your estate is modest then in order to give something to everyone your lawyer can slice and dice your assets into bequest sized packages and add a few things that you do not own now but aspire to own by your death such as a Morgan, Rolex watch, villa in the South of France, etc.   Gifts can be spread further by giving jointly to several beneficiaries, or for life, or in succession i.e. if the legatee predeceases you then someone else gets it. Add a “survivor takes all clause” and you could increase the longevity of even the frailest family member.

You will no longer need to fear a pre-death glimpse or even a full-scale relative review of your will. A carefully drafted will can contain a cast of beneficiaries who would do credit to a Cecil B. De Mille epic.

You will find yourself gaining in popularity as your will delights family and friends alike. Not to mention a bigger turnout at your funeral even if it is raining.

John Fytit

Extract from - I'll have the law on you -selected letters of John Fytit to be published later this year. 

(c) Paul Brennan 2015. All rights reserved. 

 

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Your Dad and his money

Warning: The is an extract from the Law & Disorder eZine which adopts a humorous approach to alert those who have yet to face certain legal issues. If your father is getting on and losing his mind, see a lawyer. However if he is only at the stage of losing his car keys, read on. 
Your Dad and his money

Has your Dad lost his marbles? If so, it is all over for him making a will in your favour, or changing an existing will to disinherit a few of your siblings as he does not have the mental capacity to do so. On the positive side once he has “lost capacity” you do not need to visit him so often, to avoid losing out.

A lawyer will often send aged clients off to a doctor to witness the will and also they will ask questions (and take detailed notes) to determine if their client knows:

• That he is making a will?
• How much he is worth?
• Who he would normally leave it to and in what proportions?
• And that he does appear sane.

The more complex the will or the change, the more “on the ball” the testator and lawyer must be.

A general suspicion of lack of capacity e.g. age and/or illness is not enough for a court, there must be clear evidence of significant doubt that the testator had capacity.

The onus of proof weighs on those supporting the will. The court will look at any suspicious behaviour (often helpfully supplied by an ex-wife). Or suspicious circumstances, such as any irrational provisions, beneficiaries excluded unexpectedly or undue influence (e.g. carer windfalls).

Trials are awash with evidence of bitter relatives and concerned neighbours together with medical evidence. Your lawyer with his notes will be a star witness.

Your lawyer may use his own sanity as a benchmark which can be a very low hurdle. The chances of your lawyer being sued in borderline cases by disinherited beneficiaries are quite high.

Therefore, do not expect any senior citizen discounts next time that you wheel your old decrepit dad in for a will. Your lawyer will check to ensure that their client is sane, whereas normally there is no such obligation.

(c) Paul Brennan 2013. All rights reserved. Paul Brennan is the author of The Legal Guide to Dying...Baby Boomers Edition which you can download from Amazon.

Lawyer Tease

Q. I have not made a will as I am too embarrassed to reveal how little I have got. I have always hoped that something would turn up, but time is running out.

A. It took me a few years to realise that my clients did not have more money than me; they just said that they did.

Over the years they have:

•          Invented rich uncles poised to leave them a fortune.
•         Made out that they had so much money that they had no need to work.
•        Claimed that they had given substantial sums to charity.

Some clients got carried away, hinting at expensive mistresses and rich, generous mothers-in-law.

All fantasy, of course.

Therefore, your claims of exceptional wealth will leave your lawyer unmoved. Unless, you give your lawyer even  the slightest reason to suspect that the claims are true. For instant, a $10.00 tip to his or her secretary on the way in, followed by claims of anything over $10M is likely to cause a complete melt down.

Extract from - I'll have the law on you -unmitigated advice on law and lawyers by John Fytit AO to be published later this year. 

(c) Paul Brennan 2014. All rights reserved. 

Click here to see a short Youtube clip "Dog Tease"

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Advice to Mothers in law making a Will

Dear John

I have appointed my son as my Executor as he is devoted to me. However, I am concerned that he has fallen under the influence of my daughter in law who has asked me if I had any objection to a “Cardboard Coffin”.  

Is there any legal obligation on the executor not to be too cheap with the funeral arrangements?

Worried mother

Dear Worried Mother

You are right to be concerned, Edith Piaf’s mother was put out with the trash.

You could express a wish in your Will for either cremation or burial but usually that does not bind the Executor. 

Whereas, your Will makes specific directions for the disposal of your money and other assets, your body is not really property as such, and therefore it is up to your executor as to how it should be disposed of, within reason. Health departments and courts can, in certain circumstances, deter some of the more enthusiastic means of disposal favoured by daughters in law, such as “sky burial”.

However, careful wording of the Will can alleviate some of your concerns. A clause such as “I leave $5000 to a donkey sanctuary unless I am buried in a solid oak coffin” should suffice. It does not need to be oak and can be any other material, although I would caution against any precious metals e.g. gold or silver as even a clause specifying “and remains there” can be ignored.

I find that once this method is explained to clients even the most conservative life can be celebrated with professional mourners, a horse drawn hearse, or apologies read out by certain relatives at the graveside.

Finally, a court would find that as Executor this is your son’s decision alone and your daughter in law should make that quite clear to him.

J.F.

(c) Paul Brennan 2013. All rights reserved. Extract from John Fytit’s International Legal Problem Page. For more go to http://www.lawanddisorder.com.au/legaladvicepage.html

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# 96. They hate parents

Parents not coping with finances

Dear John

My parents are getting on and I am concerned that they are no longer able to exercise their usual prudent financial rigour to the assets that they have amassed. This is of particular concern to me as I have inherited only “Right Brain”  artistic type genes and money has not really interested me up to now. But I would be extremely distressed if it stopped short.

Should I take on some of the burden of managing my parents' finances?

Worried Daughter

Dear WD

Most children believe that their parents are well meaning but a little daft, or is that just my children? Parents are not to be trusted with decisions concerning  your inheritance as the consequences of a wrong move can have serious implications for you. They could go completely gaga and spend it! Therefore you must get involved. Once you start applying estate planning principles to your parent’s money rather than your own it becomes a fascinating subject.

JF

(c) Paul Brennan 2011. All rights reserved.  Extract from John Fytit’s International Legal Problem Page. For more go to   http://www.lawanddisorder.com.au/legaladvicepage.html

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# 95. They are never happy

John Fytit’s International Legal Problem Page.

YOUR LEGAL QUESTIONS ANSWERED

Dear John

My lawyer has nagged me for years about making a will.  He said it is one of the cheapest legal things that I can do.  I finally gave him instructions but he expressed no joy at my change of heart. He then charged me like there was no tomorrow.

What's going on?

TN, Mauritius

Dear TN,

In the past, there was always an unspoken understanding that a client, having made a will, would do the right thing and promptly fall off the perch.  Now, even clients who have every intention of pegging it, seem to hang on.

Medical practice has changed. It used to be three score years and ten and that was your lot but now doctors  seem to go all out to keep people going. Losing a few patients, here and there, no longer seems acceptable to the medical profession. Doctors say that they are just trying to meet the elevated expectations of relatives as a result of hospital dramas.

Worse still, clients are being encouraged by well-meaning financial planners and others in the finance industry to make wills long before they have any intention of dying at all.  

Therefore, will prices which have traditionally been based on a quick turnaround, have had to go up. Some firms keep prices down by offering an Early Bird Discount to try to attract the more serious players who although dying still find it hard to resist a bargain. 

Try saying that you haven't been feeling well that may help.

JF

Send your legal questions to john.fytit@lawanddisorder.com.au

Warning:

1. Relying on legal advice from a fictitious cartoon character although cheap is imprudent.  However your own lawyer is always available as a poor second.
2. John will try to deal with your question in this eZine.  As John is a two dimensional cartoon character it will not be possible for him to enter into personal correspondence with readers. 
3. John like some other lawyers is not to be trusted with serious legal questions.

John Fytit is the name of the central cartoon charter in Law & Disorder cartoons which started in Hong Kong in 1992. He is from the fictitious Hong Kong firm Fytit & Loos (pronounced “Fight it and Lose”). A very unsuccessful name as people read “Fytit” as “Fit it”. The International Problem Page started in 2005.

(c) Paul Brennan 2011. All rights reserved. 

Click here for the relaunched "John Fytit’s International Legal Problem Page". Extracts also appear  on this blog.

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# 89 They make poor spouses

Intestacy - the dead end

Dear John

My elderly cousin is dying and it looks as if I am the closest relative. He will not make a will as he hates lawyers-he used to be married to one. But he says that he wants me to inherit. He is worth a few bob and his property is in various states and countries.

DT. Sydney

Dear DT

Clearly, your cousin has been traumatised by his choice of spouse. This is not uncommon.

There is a certain pecking order where the deceased does not leave a will. It starts off with spouses and children, then often parents, brothers and sisters, nieces, nephews and finally government coffers. But, it is a list, like a shopping list and if you are not on the list however deserving your claim may be in your view, you lose out. 

What happens if you are illegitimate? Whereas illegitimate children are usually quite acceptable these days, illegitimate cousins are unlikely to make the list.

Some countries or states may not recognize the right of a cousin to be in the pecking order, at all. This could mean that you would not inherit property located in that state or country.

Therefore, it is important that you research where the assets are located and encourage your cousin to sell any inconveniently located assets.  Your lawyer can help you with this paperwork.

It may be necessary to relocate your cousin to a more convenient jurisdiction which fully recognises your claim.  If he is awkward and dying rich relatives can often be particularly miserable, it is best to leave the transfer to the last minute in order to minimise any unpleasant scenes. 

What happens if he dies in transit?  Well, it depends if anybody notices.

J.F

(c) Paul Brennan 2010.  Extract from John Fytit’s International Legal Problem Page. Now written on this blog.

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# 87. They struggle to communicate

Advice to Bill Gates

Recently, I was asked to appear on Channel 7’s “Sunrise” breakfast show to talk about Bill Gates who had decided not to leave most of his $56B to his three children.  Could they challenge the will?

Here is what I wanted to say:

In Australia and most of the rest of the world, there are three ways that such children would be advised to challenge the will:

• That your Dad is nuts.  This is increasingly popular. 
• That you are still dependant on your parents.  This seems to work at any age, your parents never seem to make adequate provision.
• That your Dad’s lawyers messed up the terms of the will.  This is an argument that we understandably, try to discourage.

Allegations of frequent loss of car keys, forgetting names and having no idea of where a car is parked are dismissed by most judges as normal behaviour.  However, I suspect that trying to convince any judge that someone who gives away as much money as Bill Gates is entirely rational would be an uphill struggle, especially if he tried to maintain that his wife encouraged him to do so.  I sometimes feel like a walking financial provision application myself.

Claims against rich people alive or dead have always been fairly common as long as I can remember and like Tiger Woods you never know what is coming out of the rough.

What is adequate provision?   Well, $56B would do it but anything less may be the subject of a challenge.  

I suspect Mr Gate’s children would prefer the whole inheritance neatly divided three ways as most of us do.

Rather than leave my own children locked in expensive and divisive litigation I have decided to take the advice I normally give to my own clients and spend it before I go.  I shall leave a note explaining that it was for their own good. 

Click here for what I managed to say:  

  

Click here for other ill-fated TV appearances

(c) Paul Brennan 2010. All rights reserved.

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# 85 They put inheritances at risk

Gifts. The importance of giving correctly.

Dear John
My elderly, rich, uncle is dying but has such a dislike of lawyers he refuses to make a will.  As his closest and dearest relative I am naturally concerned about this crazy notion.

RL

Dear RL

When you say dying, my experience is that once people reach 55 they seem to spend a lot of time dying or at least mentioning signs of decline.  Rich people can be the worst offenders often outliving caring neighbours only to make a Will decades later in favour of the 50 something blond across the road.  It is important to make sure that they are definitely on their way out and not just tyre kickers.

His verbal assurance is of no use, you need it in writing.  It is often difficult to find the right time to bring this up but, would it be too much trouble for him to give it to you by way of gift, before he goes?    Of course, this would probably cause tax issues for you, but it may help him to know that you are ready to make sacrifices too.  

There are three requirements for a gift:

• An intention to donate.  His hatred of lawyers does sound odd.  But by exposing him you risk the gift being set aside due to a lack of intention caused by his mental state.  Most uncles are crazy but as they are often the source of unexpected windfalls it is seldom mentioned.
• A sufficient act of delivery.  As in preparing Wills, a DIY approach to documents evidencing gifts especially large ones can end in tears, as polite words such as “I wish” or “I would like” may be interpreted as future intent rather than immediate intent e.g. “I HEREBY transfer”, so involve your lawyer before hospital visits. 
• Acceptance of the gift by you.  I assume that you have this covered.

Without all three other beneficiaries could fight you for the money and worst of all your uncle in a lucid moment could ask for it back.

JF

(c) Paul Brennan 2010.  Extract from John Fytit’s International Legal Problem Page. Now written on this blog. 

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# 57. They don't seem to understand our issues

Leaving your spouse out of your will

Dear John

My spouse is devoted to me but I worry that in grief at my death, my spouse will fall easy prey to some fortune hunter. Of course, I would not begrudge some happiness after my passing but what if my spouse dies and leaves everything to this chancer’s children?

P.M.

Southend, UK

Dear P.M.

Whether you have worked hard to earn it, had the good fortune to have someone leave it to you, or just spent the last 40 years bored witless watching your spouse amass it, your concern is understandable.

We all from time to time consider leaving our money directly to our children expecting our spouses to understand. They generally don’t. In fact, they expect the children to see sense and renounce their windfall whereas your children naturally decide to respect your wishes.

If you adopt this strategy there are risks:

• You can expect your spouse to sue the estate. Such cases often settle but only after acrimonious affidavits full of accusations about your sanity, bad temper and slovenly habits. Fortunately, this is all done in confidence, it is not as if your neighbours and friends get to read the unpleasant detail, unless of course they are called as witnesses.
• I would suggest that you make your own funeral arrangements just in case your spouse decides to cut a few corners.
• Above all, you must not allow your spouse to know of your intentions in case they decide to do the same thing. Whereas they need to be saved from themselves you probably feel that you can be trusted to leave the money to your kids unless of course they marry unwisely or forget to call you on your birthday.

To look on the bright side, you are usually long gone before the fighting starts. But, if you cannot stand to have your memory besmirched in this manner but still fear your money ending up with the wrong person there really is only one option: don’t go.

I hope this helps.

J.F.

Extract from John Fytit’s International Problem Page. (c) Paul Brennan 2009.

#20 They do not pay enough attention to their mothers

Dear John,

Is there any legal way I can make my children face up to their responsibilities and show me some attention?

Aged mother, Melb. Aust.

Dear Aged Mother,

Any mention of your will should do the trick.

Find a worthy cause to champion. Your lawyer will have a whole book of Charitable Institutions. My advice is to opt for the slightly off beat. My own clients have become very fond of a Donkey Sanctuary on the South Coast of England.

A word of caution: do not leave your money to your own pet. It is a certain death sentence. Unless, of course, your pet shows you no attention either.

Use a codicil, which is a short addition to a will in order to write out any particular offender. Alternatively announce that you intend to make a new will to shake up all of your children.

With a bit of thought your next Mothers Day could be a very special occasion, indeed.

J.F.

Extract from "The International Legal Problem Page" blog where lawyer John Fytit solves your legal problems

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