In New South Wales (NSW), a Letter of Wishes is a non-legally binding document that complements a Will. It allows a testator to provide their appointed executors and trustees with valuable guidance as to their values and principles, and their wishes for the administration of the estate and management of estate trusts.
What is the value of a Letter of wishes in Estate Planning in NSW?
A Letter of Wishes is not a legal document but rather a supplementary, informal document that provides additional guidance to executors, trustees, and testamentary guardians of children on matters relating to funeral arrangements, disposal of their remains, distribution of personal belongings, their wishes for the care of their children including with respect to education and travel, the administration of their estate and the management of trusts under their Will.
The key points to consider when writing a Letter of Wishes in estate planning in NSW are:
- Non-Binding: Unlike a will, a Letter of Wishes is not legally binding.. It does not carry the same legal weight, and the executor or trustee is not legally obliged to follow the instructions contained within it
- Guidance: It is meant to provide guidance and insight to the executor or trustee when making decisions regarding matters that will not be addressed within a will. It can help them understand the testator’s intentions and wishes when exercising their discretion.
- Flexibility: One of the benefits of a Letter of Wishes is that it allows the testator to convey their desires, concerns, and preferences in a more flexible and personal manner than a formal Will.
- Private: Letters of Wishes are typically kept private and are not part of the public record, which can be beneficial if the testator has sensitive or personal instructions to convey.
- Not a Substitute for a Will: It is important to note that a Letter of Wishes should not be used as a substitute for a properly drafted and legally valid Will. It should complement the will, not replace it. The legal aspects of asset distribution are determined by the Will.
- Updating: It can be updated more easily than a will, and the testator can make changes or add new instructions as needed without the same formalities required for changing a will. For instance, a letter of wishes need not be witnessed or signed on every page.
While a Letter of Wishes is not legally binding, it can still play a valuable role in estate planning by providing a more personal touch and specific guidance to the executor or trustee, helping them understand the testator’s intentions and wishes. Understanding a testator’s values and principles will give reassurance to the executors and trustees in the knowledge that they are doing what the testator would truly have wanted them to do It’s important to work with legal professionals experienced in estate planning when creating both a Will and any associated Letters of Wishes to ensure your wishes are carried out as closely as possible.
What should be included in a letter of wishes in NSW?
The following information can be included in a Letter of Wishes:
- Personal Messages and Guidance:
- Express personal sentiments, values, and guidance for your beneficiaries.
- Share your reasons for making specific bequests or decisions, which can help prevent misunderstandings or disputes.
- Distribution of Personal Belongings:
- Provide detailed instructions for the distribution of personal items, such as jewellery, artwork, or family heirlooms.
- Specify who should receive these items and under what conditions.
- Location of Safe Deposits:
- Include information about the location of any safe deposit and the location of keys connected to such things.
- Funeral and Burial Wishes:
- Include preferences for funeral or memorial service, such as the location, religious or non-religious aspects, or any specific requests.
- Express preferences for burial, cremation, or other arrangements.
- Organ Donation:
- Include any specific wishes you have regarding the donation of your organs.
- Guardianship and Care of Minor Children:
- If you have minor children, you can share your views on their upbringing, education, and care.
- Whilst nominating the guardians for your minor children is an important element to add to your will, the letter of wishes can complement the clause under the will and explain why you believe they are suitable choices.
- Pets:
- If you have pets, you can share your wishes regarding who you would like to take care of them, their favourite things to do, their favourite foods and any quirks they have.
- Business or Financial Matters:
- Share insights or wishes regarding any business interests, investments, or charitable contributions.
- Provide information about any specific management or investment strategies you prefer.
- Provide the details of your Estate planning lawyer and any financial advisor you use.
- Digital Assets and Passwords:
- Include information about your digital assets and online accounts.
- Provide access details or instructions for managing or closing these accounts.
- People to notify
- Include a list of people you would like your executors and trustees to notify of your death.
Update and Maintenance: Just as with your Will, a letter of wishes should be reviewed and updated regularly and particularly when circumstances change.
Clear and Compassionate Language: A letter of wishes should be clear in language and the tone should be compassionate and considerate. These pages will be read by the executors and trustees to ensure that your intentions and wishes are adopted by them as closely as possible. It is important to avoid using language that may be perceived as coercive or contradictory to the legal documents. Instead, it should be a document that complements the more formal, legally binding documents like the will.
A Letter of Wishes should be kept with your other estate planning documents where it can be accessible to your executor and trustee upon your death. To seek assistance in the preparation of your estate documents contact us online or by phoning (02) 4050 0330.
