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Letter Of Wishes (NSW)

Every word in a formal will is important. A testator should draft a will to include only those clauses that achieve the intended legal outcomes. While a testator may also like to leave messages to loved ones, extraneous information can complicate a will and may even lead to confusion over the testator’s intentions. However, there is an option for a testator to leave a message in a letter of wishes. This document can be left with the other testamentary documents and read alongside the will. This article explains the purpose of a letter of wishes in New South Wales.

Who Should Write A Letter of Wishes in NSW?

A testator can use a letter of wishes (also known as a statement of wishes) for a purely practical purpose. In this document, the testator can fully explain their wishes for the administration of their deceased estate. It can be written simply so that even a relatively unsophisticated executor can understand the testator’s intentions. It can, for instance, state the location of crucial documents and specify who receives each sentimental item.

The executor can use this document as a guide when dividing personal items from the deceased estate. Rather than including an exhaustive list of all belongings in their will, the testator can direct their executor through a letter of wishes to distribute individual items to certain people. This list of possessions can be kept in a spreadsheet that the testator can update from time to time. Regularly reviewing and revising this spreadsheet is more straightforward than updating a formal will.

Another reason for a testator to write a letter of wishes in NSW is to explain unexpected bequests. The testator can take the opportunity to justify leaving a valuable item to an old friend or distributing their estate unequally between their children. The testator can provide context for their decisions and perhaps reduce the potential for someone to contest their will. When the testator’s loved ones understand their reasoning, they are less likely to ask the Supreme Court of NSW to overturn the will.

Another significant reason to leave a letter of wishes is if a testator has young children. This letter can set out the parent’s wishes for the future care of their children. Of course, these wishes are not legally binding, but they can help the new guardians understand how the testator was raising the children. The new guardians may choose to follow this guidance in their care of the children. For instance, the testator might specify that their children be raised in a specific religion or receive a particular type of education. In this way, a letter of wishes may also become a letter to the children, reflecting the testator’s wishes for their children.

It is important to note that this letter of wishes is not legally binding in NSW, and the executor can disregard any of these instructions. The NSW Supreme Court examined this question in Stansfield v National Australia Trustees Ltd [2004]. Master Macready stated that even if there is a letter of wishes, the executor or trustee is not bound to follow the deceased’s wishes.

Are there any risks?

A letter of wishes can be a helpful document, but it can also be problematic. For instance, there is a risk that it might be mistaken for legally binding testamentary instructions. A formal, valid will conforms to the requirements of section 6 of the Succession Act 2006. However, the Supreme Court has validated documents that do not comply with these requirements as an informal will. The deceased’s family or executor may view a letter of wishes as an informal will, even if it is not signed or witnessed. In that case, there might be legal challenges if a testator’s letter of wishes contradicts something in their will. Whether the Supreme Court agrees with this assertion or not, it will be expensive and time-consuming to resolve the matter.

How To Write A Letter of Wishes

A testator can write a letter of wishes in any way they like. However, a testator should follow specific guidelines to prevent anyone from mistaking the document for an informal will.

One safety mechanism that a testator should employ is to insert a disclaimer at the beginning of the document, such as:

“This letter of wishes accompanies my last will and testament of [insert date]. Without imposing any legal obligations, it is my wish that my executors act according to the following wishes.”

The testator can then set out each of their wishes in dot points or paragraphs. The more facts the testator can include here, the more valuable the information will be for their executors. They can include any information that will save the executor time and effort, such as bank account numbers, superannuation account details, life insurance policies, and vehicle registration details. The testator can take the opportunity to ensure that all of their investments are easy to locate – especially if they have an asset that is easy to overlook (such as a Bitcoin trading account, valuable artwork, or safety deposit boxes).  The testator can also list any current debts or liabilities, which will help the executor immensely in the first stages of deceased estate administration.

Five Tips For Writing A Letter of Wishes in NSW

  1. It is important to remember to label the document confidential and keep it somewhere secure (such as with the solicitor who holds the will in safe custody).
  2. Remember to address the letter to the executor/s. The executor administers the estate, so they must understand the testator’s wishes.
  3. It is safer not to include financial and accounts passwords.
  4. The letter of wishes must not be mistaken for an informal will. The testator can help prevent this by clearly stating that the document is not binding on the executors.
  5. A solicitor can help draft the document to express the testator’s wishes while avoiding any unintended consequences.

If you plan to write a letter of wishes, the team at Armstrong Legal can help you draft the document or review it for any issues. Please get in touch with our team via our online contact form or telephone 1300 038 223 today for experienced and practical advice.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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