Letter of Wishes (WA)
Not everything a testator wants to say to their loved ones should be included in their will. Because every word in a will can have a legal effect, it is wise to limit ancillary clauses. Instead, a testator with additional information for their executors or beneficiaries can leave a supplementary Letter of Wishes for their executor to read in conjunction with the will. This summarises the deceased’s non-binding wishes for their family and estate after their death. This article explains the purpose of a Letter of Wishes in Western Australia.
What Is A Letter of Wishes?
A Letter of Wishes (also known as a Statement of Wishes or Memorandum of Wishes) is an informal document that relays a testator’s non-binding directions. The testator should leave this with the other testamentary documents to be read before or after the formal will. Unlike a will, which is public once probated, a Letter of Wishes remains a confidential document. This confidentiality allows the testator to be more intimate with family and friends. As the Letter of Wishes does not need to be witnessed, the testator can write the letter privately, and no one will know the contents until after their death.
A testator can draft this Letter of Wishes to provide a practical guide for their executor, stating preferences for everything from funeral arrangements to how they want the executor to administer the deceased estate. The testator can explain their wishes in simple language that a nonprofessional executor can understand. Instead of leaving an exhaustive list of belongings in their will, a testator can use the Letter of Wishes to describe how they want to divide personal possessions. Regularly updating this document is much easier than updating a formal will.
A testator can also leave messages to loved ones in their Letter of Wishes. These messages should be left out of a formal will as such statements can create confusion over the testator’s intention. A testator can take the opportunity to explain unusual and unexpected bequests. For instance, the testator can explain leaving a particular heirloom to one grandchild or leaving a sizable bequest to their favourite charity. When the testator can justify their decisions in this way, it often reduces the potential for later legal disputes over the will’s contents.
When a testator has young children, they can use a Letter of Wishes to address their children’s future. The document is not legally binding, but it can provide the new guardian insight into the deceased’s hopes for their children’s upbringing. For instance, the testator might request that their children attend a particular school or practice a certain faith.
Writing A Letter Of Wishes In WA
A testator should be careful to clarify that the document is not an informal will. At a minimum, a testator should insert a disclaimer at the start of the document, such as:
“The following is to assist and guide you in administering my estate. I ask you only to take these wishes into consideration as you exercise your discretion, as they are not intended to be legally binding on you as executor. Furthermore, I recognise that as these wishes are not legally binding, your decisions may differ from my wishes.”
Apart from this disclaimer, there are really no prescribed rules for writing a Letter of Wishes. The testator can write in paragraphs or even dot points if it is suitable to convey the information. The testator should include any information that will be helpful for the executor to finalise the deceased estate. This might include bank account numbers and details of superannuation and life insurance policies. The testator should note any valuables or investments that are easy to overlook, such as safety deposit boxes and digital currency accounts. A list of the testator’s current debts and liabilities will help the executor start the deceased estate administration.
When drafting a Letter of Wishes, a testator needs to be careful that the document is not mistaken for a legally binding testamentary document.
Although a will must conform to the execution requirements laid out in the Wills Act 1970, the Supreme Court of Western Australia has previously upheld informal wills as valid testamentary instruction. As such, there is a risk that the deceased’s executor or family may view the Letter of Wishes as an informal binding will. This may lead to legal challenges if there is a contradiction between the formal will and the Letter of Wishes.
A Letter of Wishes is personal and unique to you, so you should discuss your needs with your solicitor when you draft your formal will. The team at Armstrong Legal can help you prepare a Letter of Wishes or review your document for any issues. Please contact the team on 1300 038 223 for specialist legal advice.