Letter of Wishes Australia: What It Is and How to Write One
In estate planning, one’s wishes regarding the distribution of assets are generally stated in a legal document known as a will.
However, a less formal but essential document is the Letter of Wishes. This document serves as a guide for executors and trustees in carrying out their duties.
This article explores the concept of a Letter of Wishes in Australia and how to write one.
What is a Letter of Wishes in Australia?
A Letter of Wishes, also known as a Statement of Wishes, is an informal document that guides the executor, trustee, or beneficiary of a will.
It includes the wishes of the person writing the will (the testator) concerning their assets and how they will be managed or distributed.
The contents can be broad and varied, ranging from specific funeral arrangements to instructions about the care of minors or pets or advice on managing a family business.
A Letter of Wishes can also include personal messages to loved ones.
How is a Letter of Wishes Different from a Will in Australia?
While a will is a legally binding document, a Letter of Wishes is not. The will provides the legal framework for how the estate will be distributed, and failing to follow its instructions can have legal implications for the executor.
On the other hand, a Letter of Wishes serves as a guide and does not have the same legal standing. Its contents are considered requests rather than commands, and while the executor or trustee is expected to consider the wishes, they are not legally obligated to follow them.
What Should Be Included in a Letter of Wishes?
A Letter of Wishes can contain a range of elements tailored to the specific circumstances and desires of the person making it. Below are some standard inclusions:
Instructions or Wishes About Funeral or Memorial Services: You might have specific preferences about your funeral or memorial service—for instance, whether you prefer to be buried or cremated, where you’d like your final resting place to be, or what kind of service you want to be held.
Including details in your Letter of Wishes can guide your loved ones and ensure your final wishes are respected.
Guidelines on Managing Specific Assets, Like a Family Business: If your estate includes complex assets like a family business, real estate, or significant investments, you might provide detailed instructions about how you wish these to be managed or distributed.
For example, a family business could remain in the family or be sold, with the proceeds shared among your heirs.
Thoughts on the Upbringing, Education, and Welfare of Minor Children: A Letter of Wishes is an excellent place to express your desires about the upbringing of your children. This could include preferences about their education, religious instruction, or other welfare aspects.
While these instructions won’t be legally binding, they can offer invaluable guidance to those taking on parenting responsibilities.
Personal Messages to Loved Ones: Often, a Letter of Wishes is used to communicate private messages to loved ones. These could include expressions of love, advice for the future, or explanations about the decisions made in your will.
This can help reduce any confusion or potential disputes among beneficiaries by providing context to the provisions in your will.
Reasons for the Distribution of Assets: If you’re distributing your assets in a way that may seem unusual – for example, if one child is receiving more than another, or if you’re leaving significant gifts to charity – it can be helpful to explain why. This can help prevent misunderstandings or disputes among your beneficiaries after you’re gone.
Remember, a Letter of Wishes is a flexible document that can be revised or updated as circumstances change. While it isn’t legally binding, it can provide significant help and guidance to your executors, trustees, and beneficiaries.
Therefore, it’s worthwhile to invest the time to create this document, with or without the assistance of a legal professional.
How to Write a Letter of Wishes in Australia
Writing a Letter of Wishes is a personal and crucial step in estate planning. It’s a document that supplements your will by providing additional instructions or preferences about your estate or personal matters.
Here are the steps you can follow to write one:
Step 1: Consider the Purpose
Start by identifying the purpose of your Letter of Wishes. It could be used to provide more detailed instructions for your executor or trustees, to explain the reasoning behind specific provisions in your will, or to communicate personal messages to your loved ones. Understanding the purpose of your letter will help guide the content you include.
Step 2: Address the Letter
Address the Letter of Wishes to the person or people who will be responsible for carrying out your wishes. This could be your executor, trustees, or even your beneficiaries.
Step 3: Outline Your Wishes
Detail your wishes clearly and precisely. Remember, the purpose of this letter is to provide guidance, so make sure your instructions are easy to understand and follow. If you’re addressing several topics (e.g., funeral preferences, the care of minor children, the distribution of personal belongings), consider organising your letter with headings or bullet points for clarity.
Step 4: Provide Detailed Instructions
Be as specific as possible in your instructions to avoid any ambiguity. For example, if you’re describing a personal belonging you wish to be given to a particular person, provide a thorough description of the item and the person’s full name to avoid confusion.
Step 5: Explain Your Decisions
Use the letter to explain any decisions you’ve made in your will that may raise questions or cause confusion. Explaining your reasoning can help prevent misunderstandings or disputes among your beneficiaries.
Step 6: Sign and Date the Letter
Although a Letter of Wishes is not legally binding, it’s a good idea to sign and date it to indicate that the contents reflect your wishes at that time.
Step 7: Keep It Safe
Store your Letter of Wishes with your will and other essential documents, and let your executor know where to find them.
Is a Letter of Wishes Legally Binding in Australia?
No, a Letter of Wishes is not a legally binding document in Australia. It is more of a guidance document for executors, trustees, and beneficiaries.
They are under no legal obligation to follow the requests, but in practice, they usually do unless there are compelling reasons not to.
Need Help Drafting Your Letter of Wishes?
Making a will and drafting a Letter of Wishes is a significant step in estate planning.
At Justice Family Lawyers, we can guide you through the process, ensuring that your wishes are clearly expressed and legally sound.
Let us assist you in this vital task. Contact Justice Family Lawyers today for expert advice and guidance.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.