Why you should have a Will in place

In the last few years there has been an increase in the number of legal disputes around division of assets and funeral arrangements, primarily as a result of people dying without a Will in place.

One in two Australians don’t have a Will* and, as a result, when they die there is no way for their loved ones to know what their wishes may have been regarding their belongings or their funeral.

This may result in a costly and emotionally complicated process when it is time to settle an estate.

Recently, the South Australian government flagged its intention to review its succession laws after a number of incidents involving dispute over division of assets, and burial rights.

Other states have also made changes to the laws around who is entitled to claim against an estate – for instance, only those who were “financially dependent” on the deceased.

It follows an increase in the number of court cases based on disputes about who should inherit, and how much each person is entitled to, as well as who is the legal “next of kin” who can make important decisions. 

The South Australian Commissioner for Victims’ Rights Michael O’Connell has been reported as saying that the needs of next-of-kin were often overshadowed by any legal agreements the deceased may have made throughout their lives.

Existing legislation has resulted in cases where those who consider themselves to be the next-of-kin are excluded from inheriting. This is of particular importance to same sex couples, but is applicable to all.

In the recent, well publicised case of David Bulmer-Rizzi, who died whilst honeymooning with his husband in Adelaide, his husband was not recognised as his next-of-kin by South Australian law, meaning that all executive decisions fell to Mr Bulmer-Rizzi’s father.   If he had had a Will, however, he could have nominated his husband as the executor of his estate which would have given him sole power over funeral arrangements and so on.

This shows the importance of having a Will that relatives are aware of, with an executor clearly nominated, to ensure that your clients’ wishes are honoured.

If you would like assistance with preparing a Will, we can help through Flinders Trustees, who are part of the Australian Unity Group, along with Funeral Plan Management.