The Importance of Having a Will

The Importance of Having a Will

We have previously mentioned how important it was to make a Will and to keep it up to date.  In earlier blogs we have mentioned celebrities such as Aretha Franklin and Hugh Hefner being involved in litigation as to their estates.  In particular, Aretha Franklin is reported to have died without making a Will or preparing a trust in relation to her large estate, reportedly in excess of $100 million.  Some of the other celebrities who are also stated to have not prepared a Will before their death are Prince (57 years old at time of death), Amy Winehouse (27 years old at time of death), Bob Marley (36 years old at time of death), Jimi Hendrix (27 years old at time of death), Sonny Bono (62 years old at time of death), Kurt Cobain (27 years old at time of death).  In all those cases, litigation ensued and some are still continuing to date, many years after the celebrity’s death. 

It will have been noted that there is current litigation in the Supreme Court of South Australia as to the Estate of SA businessman Liu Hongtao.  It is alleged that the estate is worth approximately $30 million.  The parties involved in the litigation include the deceased’s mother, his wife and his two children.  There has been a recent judgment in those proceedings on 11 August 2020 which would appear to be the start of lengthy expensive proceedings.

It is often stated that there are two certainties in life – death and taxes. Most will attend to preparation of their income tax returns. It is also important to prepare a Will and associated documents. This, so that financial and property matters can be sorted out in an orderly fashion prior to death.

In a number of countries, including Australia, there are laws which provide for situations where a person dies without making a Will or where a portion of the estate is not dealt with in a Will. Where a person dies in such circumstances, they are described as having died ‘wholly’ or ‘partially’ intestate. In South Australia, where there is a Spouse or domestic partner and no children then that person is entitled to the whole of the estate. Where there are children and there is no surviving Spouse, the children are entitled to the whole of the estate. Where there are both a surviving Spouse and children, then there are rules which apply for distribution of the estate between the Spouse and the children. There are also rules where the deceased is survived by both a Spouse and a domestic partner. There are provisions for grandchildren and relatives where those circumstances need to be taken into account.

From the above it will be seen, that it is preferable for persons to prepare a Will so that their estate is dealt with in accordance with their wishes rather than by the default rules. Furthermore, it is useful to remember that marriage revokes an existing Will. So, even if a Will had been prepared, it is no longer valid and a new Will needs to be prepared. A divorce also affects a Will, especially where property in the Will was given to the former Spouse or partner.

To have peace of mind, please contact the helpful team at Belperio Clark Lawyers on (08) 8212 1322.

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