Why you should do a Statement of Wishes with your Will

The role of the executor is broad and, depending on the size and nature of the estate, can be quite demanding. You can, however, make your executor’s job much easier by leaving a Statement of Wishes.

What is this?

A Statement of Wishes, also referred to as a memorandum of wishes or letter of wishes, is a document that gives the executor relevant information and guidance for performing their role. This includes:

1. Relevant information

Your executor will need information in order to notify relevant parties of the death, correctly identify estate assets, pay debts and distribute the estate.

It is not uncommon for the executors to spend hours or days rummaging through the deceased’s personal papers, hunting for this valuable information.

You can save them a lot of time and stress by storing the information in one easily found location, which is normally stored with your original Will or your copy of the Will.

What information you should include:

  1. The name and contact information for your solicitor, financial adviser and accountant.
  2. The name and contact information for all beneficiaries named in the Will, as well as any other family members or friends who will need to be notified of your death.
  3. Details of your assets such as:
    • bank name and account number;
    • shares, Shareholder Reference Numbers (SRNS) and Holder Identification Number (HIN);
    • superannuation fund and membership number;
    • the location of title deeds, contracts and legal documents;
    • details of any debts you owe and the contact details for the lender; and
    • identification and valuation information for any artwork, heirlooms or collectibles.
  4. Details of any digital assets and accounts, including passwords.
  5. Details of any social media accounts and what you would like to happen with your social media accounts after your death.

2. Expression of wishes

In the administration of your estate, the Executor will make many small, potentially inconsequential, decisions.

Even this can be made easier for the executor if they have a document setting out how you would like your executor to make certain decisions, including:

  1. your wishes in relation to burial, cremation and funeral arrangements;
  2. how you would like your personal belongings (jewellery, clothing, furniture, ornaments, etc) divided. For example “I would like to give my computer and all gaming consoles to my nephew.”

If at the date of your death, you may be survived by minor children (under 18 years old), the Statement of Wishes can include particular instructions in relation to the children.

Instructions for the children’s guardian:

  • What school you would like your children to attend and what education you would like them to have;
  • Wishes in relation to maintaining relationships with grandparents and extended family;
  • Wishes in relation to religious or cultural upbringing; and
  • The location where you would like your children to be raised.

Instructions for the trustee:

The trustee holds on trust the beneficiaries share of the estate until they reach the age set in your Will (18 years or older). During that time, the Will may authorise the executor to make provision for the beneficiary’s maintenance, education and advancement in life.

You can include particular wishes such as whether or not the executor should use the funds:

  • to pay for sporting equipment, musical lessons, and extracurricular activities;
  • to buy the child a car;
  • to pay for a computer, mobile phone or other electronic devices for the child;
  • to pay for the child to travel and, if so, to what extent;
  • to pay for alternative education such as a trade course or internship; and
  • to pay an allowance to the children’s guardian or contribute to the costs of raising the child.
Unlike your Will, your Statement of Wishes is not legally binding. This means that the executor does not have to follow them to the letter or at all and there will normally not be any repercussions for the executor’s failure to comply with your wishes.

It is up to the executor to decide whether they will follow your wishes as set out in your Statement and it can provide invaluable guidance to assist your executor in fulfilling their duties.

Being non-binding also allows the executor greater flexibility. Say for example that in your Statement you say that you want your niece to get your antique dining table and chairs. However, at the date of your death, your niece is living in Canada and the cost to ship the furniture to her would be exorbitant. Your executor can use their discretion to gift the dining set to another relative and make an alternate gift to the niece.

Another advantage of the Statement of Wishes is that it remains confidential. Once an application for a Grant of Probate is made, the Will becomes a public document. The Statement of Wishes does not form part of the application for Probate. Therefore, a copy of the Statement does not need to be provided to the Supreme Court, to the beneficiaries or any other relatives.

Finally, your Statement of Wishes can be updated and changed at any time. It is generally recommended that you update your Will with the assistance of a solicitor who also acts as a witness to you signing the Will. This can incur legal costs and there may be some difficulty in booking in appointments.

Your Statement of Wishes on the other hand does not need the involvement of a solicitor, can be done at any time and does not need witnesses. You can update the Statement however you want, as often as you want.

Even though it is an informal document, it is recommended that you date and sign every page of the Statement, so it is easy to identify the latest version and to prevent any page or pages being fraudulently substituted.

The informal Statement of Wishes is an essential part of your estate plan and a perfect accompaniment to the legally binding Will. It creates a record of your more personal information and wishes and also provides the executor with guidance to perform their duties more efficiently and as you would prefer.

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.