Sometimes, there are things that are not appropriate to be dealt with in your Will. Instead, you can include a ‘Statement of Wishes’. A Statement of Wishes is a confidential document which is designed to guide and assist your executors when it comes time to administer your estate, trusts and companies.
Your Will is an important legal document that sets out what is to happen with assets owned in your sole name after your death.
However, there are a number of issues it may not be appropriate to deal with in your Will such as:
- assets in a company;
- assets in a trust (income and capital);
- communicating a set of principles to assist the executors when making decisions;
- guidelines for trustees and/or guardians;
- details about the managers of your business(es)
- care information for a particular beneficiary of a trust;
- guiding principles, for example ‘I wish that all beneficiaries receive equally from the estate’; and
- any other information not appropriate to be written into the Will.
These issues or principles may be of extreme importance to you and allow you to communicate to those in control of your estate or entities but are not appropriately noted in a Will.
A Statement of Wishes takes the form of a separate document to your Will. It can be done in the form of a Letter to your Executors and Trustees or even as Memorandum of Wishes and should be stored with your original Will.
At David Davis, we always store your Statement of Wishes with your Will so that your executors have the instructions and tools they need to administer your estate.
A Statement of Wishes is intended to provide general guidance to the executors and trustees of your estate and trustees or directors of your companies following your death.
A Statement of Wishes is not legally binding but can be very beneficial
While the document is not legally binding it may have a strong moral influence and provide a roadmap to those left behind including:
- your executors;
- trustees and directors of trusts and companies established during your lifetime;
- trusts or trustees established under your Will;
- guardians of your minor children;
- managers of your business; and
- loved ones.
How do I write a Statement of Wishes?
It’s important that your Statement of Wishes is drafted by a lawyer and reviewed when a change in your circumstances occurs. For example, the birth or death of a family member or a new entity added to the estate.
An incorrectly drafted Statement of Wishes could have devastating effects on your estate and entities.
For example, a Statement of Wishes must be drafted so as not to contain directive language (to avoid the Statement of Wishes being considered an informal Will by the court) or fetter the trustee’s discretion (to avoid a resettlement of trust).
What can I address in my Statement of Wishes?
A Statement of Wishes is a very personal document and you may include anything you like which you think may assist your executors and/or trustees with the administration of your wealth in a way you would have wanted.
Some people prefer to make their Statement of Wishes a list of guiding principles or a moral code for their executors or trustees to assist them in making decisions. Other times a more technical approach is preferred.
Below we have prepared an example list of items that can be included in a Statement of Principles.
- Wishes in relation to assets which the Will maker may have effectively controlled during their lifetime but will not form part of their estate; for example, assets in family trusts, superannuation funds, and companies.
- Wishes regarding control of testamentary trusts such as the age children should become involved and the use of their skill sets,
- Minimum age for distribution of capital from trusts (including testamentary trusts).
- For which purposes trust capital may be advanced or whether it should be advanced by way of loans.
- The names of advisors or family friends from whom assistance should be obtained in relation to financial planning, accounting services, legal advice, insurance brokerage, stockbroking, religious guidance or other matters.
- Personal assets, particularly those with emotional value such as jewellery, items of collection, artwork, furniture, other personal effects or family heirlooms.
- Any charities or causes that the Will maker would like the beneficiaries to consider and/or possibly the establishment of a fund for a special cause.
- Lists of assets and their details:
- Real estate owned and details of insurance policies held in relation to the real estate;
- Details of any bank, building or credit union accounts;
- Details of your superannuation fund(s);
- Shares in companies and location of share certificates;
- Life insurance policy details;
- Managed investments;
- Interests in a partnership and any relevant details;
- Shareholders agreements that you may be party to;
- Motor vehicles registered in your name.
- The location of important documents such as deeds and financial information.
- Any wishes or directions as to how infant children should be cared for including upbringing, religion, schooling and education, contact with family members and friends.
- Any investment directions.
- Details of any safe deposit.
- Any debts due to you.
- Any concerns about creditors of your estate.
- Any concerns about family members making a claim on your estate.
- Your reasons for leaving certain family members out of your Will;
- Directions in relation to funeral arrangements and burial or cremation requests, including details of any prepayments, plot and/or niche reservations or purchases.
- Your directions in relation to organ donation and donating human tissue.
- Any other matters the Will maker would like their executors or trustee to take into account. For example, you may wish that all children receive equal distribution from the Family Trust or that particular financial care is provided to any of your children experiencing hardship.
The above list is an example only, of items which could be included in a Statement of Wishes. However, as the Statement of Wishes is very personal and unique to each individual, you should discuss adding anything further with your lawyer when making your Will.