A Statement of Wishes can be an important tool in your estate planning arrangements, in addition to a:
- Will with Testamentary Trusts / Will;
- Enduring Power of Attorney, and
- Appointment of Enduring Guardians and any Advance Care Directive.
A Statement of Wishes (or Memorandum of Wishes) is an informal (not legally binding) document that accompanies your Will (and is often kept with it, but doesn’t form part of it unless stated to) and gives to your executor or trustee important guidance on how you would like certain matters dealt with or attended to after your death, such as:
- reasons for decisions made concerning your Will;
- how you would like sentimental items distributed (assuming the Will allows this);
- burial and organ donation suggestions (if not covered in the Will);
- intentions regarding management of trusts and investments;
- wishes regarding children’s care, maintenance and education;
- locations of documents or keys to safes;
- bank account and other relevant information, including assets a person owns or controls;
- useful suggestions regarding businesses and their continued operation;
- care for pets; and
- passwords and login details for digital assets and various things including social media accounts and emails (noting that their terms of service may not strictly allow this).
It can be as detailed or broad in scope as you wish and can be updated as you need without necessarily having to change your Will, although the wording of your Will always takes priority or precedence over the Statement of Wishes.
A Statement of Wishes can be prepared at any time, although it is usually made at the time of making your Will or soon thereafter. You should review and amend it at regular intervals and when your family circumstances change.
It is usually a good idea to sign and date the Statement of Wishes and if it is intended that the Statement of Wishes be used as a Statement of Testamentary Intention or as evidence in any proceedings in relation to your estate such as for a family provision order under the Succession Act 2006 (NSW), then all facts, matters and circumstances referred to in it ought to be correct and you may want to put it in an Affidavit form acceptable to a Court.
Although executors and trustees may be obliged to provide a copy of a Will to certain persons and beneficiaries, they are not required to reveal the contents of a Statement of Wishes to a beneficiary.
Further, where a Statement of Wishes isn’t part of a Will, it isn’t filed with the Supreme Court and thus doesn’t become a public document like the Grant of Probate or a Grant of Letters of Administration with the Will Annexed and can remain confidential.
FURTHER INFORMATION
For further information please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au.
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
