A letter of wishes (or memorandum of wishes) is a document that is often kept with a will. A testator can use it to convey additional information to the executor of their deceased estate. This document can also provide a simple and up to date record of the deceased’s possessions. However, there are potential pitfalls to writing a letter of wishes. This article explains when a testator should use a letter of wishes in Queensland and provides some tips to avoid potential pitfalls.
A letter of wishes is not a legally binding document. For a document to be a valid, formal will in Queensland, it must conform to the Succession Act 1981. The will must be written, signed and dated in the presence of two independent witnesses. The testator must also intend for the document to serve as a last will and testament.
In contrast, a letter of wishes sets out a testator’s wishes in relation to various aspects of their estate. It is usually intended to be read in conjunction with the will and provides additional information.
Anyone can benefit from preparing one of these documents in Queensland. The testator can write something in their own words to help guide their executor through the estate administration. The testator can also include special messages for their loved ones.
The testator can use a letter of wishes to give instructions about their funeral arrangements. A testator sometimes includes a short statement about burial or funeral arrangements in their formal will (such as a preference for or against cremation). A letter of wishes can expand on these instructions with a choice of music, readings, or even dress code. The executor can use these instructions as guidance when planning the funeral.
Parents of young children often write a letter of wishes containing their hopes for their children’s future upbringing. In this way, the parent can record their preferences on such matters as the child’s education and faith. These wishes do not bind the new legal guardian of the children, but they may influence the guardian’s decisions in the future. Many testators also take the opportunity to leave a lasting message for their children.
A letter of wishes can also explain the contents of a will. The testator may, for instance, explain why they leave certain property to one child and not another or outline why they believe that an unequal distribution of assets is fair. This explanation may go some way to preventing their loved ones from contesting the provisions of the will. If a family member does claim against the estate, the court has considered the testator’s Letter of Wishes during their deliberations. For example, in the case of Underwood v Underwood [2008], the court upheld the testator’s decision to leave his business interest to his nephews. The court noted that the deceased prepared his will in close consultation with his solicitor and adequately explained his intentions in a letter of wishes.
The testator can also leave details about the distribution of sentimental items. It can be helpful to leave a detailed set of instructions in the letter of wishes because the testator can update this document as required. They may even wish to keep a spreadsheet describing each possession and the intended recipient’s name.
There are a number of factors that a person should keep in mind when writing this document.
The testator can give the document directly to their executor, but they may not be able to locate it later. Armstrong Legal recommends that a testator store a copy of the document with their will, preferably with their solicitor.
The testator must ensure that they deal with all important matters in the formal will. The letter of wishes is just that – wishes – and the executor may choose to disregard any of these wishes.
The letter of wishes should not include anything that contradicts the terms of the formal will. For instance, it should not say that the estate is only for the children if the testator leaves their estate to their spouse and children. Such a contradiction could result in the executor misconstruing the document as an informal will. If that occurs, the executor may need to ask the Supreme Court of Queensland to decide on the testator’s intention. The testator can make a clear statement in their letter of wishes that:
“This is a letter of wishes only. It accompanies my will dated [insert date that testator executed their will]. It does not impose any legal obligations on my executors, but I do wish for my executors to consider the following when acting on my behalf.”
The testator can use the letter to assist their executor. Some information that is particularly useful to include is:
The solicitors at Armstrong Legal can help you draft a letter of wishes to help your executor administer your estate efficiently in compliance with Queensland law. You can reach our team on our online contact form or telephone 1300 038 223 for legal assistance.
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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