30/07/2012

In addition to writing a Will, a testator may write a separate ‘List of Wishes’.

The list or letter is a document that expresses a testator’s personal hopes and wishes concerning future events and is intended to provide general guidance to the executor or trustee of a person’s estate.

To avoid any problems later when such documents are found and have to be presented to the court after a person’s death, a list of wishes needs to be clearly marked to say it is not testamentary, is not binding on any person and creates no legal obligation.

While such document are not legally binding, they can have strong moral sway and be a practical tool to assist executors and trustees in reaching decisions about how to handle a person’s estate.

A list of wishes can also be used to express the testator’s views or to explain his actions. It can deal with a range of issues including:

• directions about funeral arrangements, who to notify of the death and details of any organ donations;
• guidelines for guardians about the care of children concerning their education, residence, social environment and holidays, general care and religious upbringing, etc;
• an explanation of why certain beneficiaries have or have not been included in the will;
• preferences for the distribution of personal assets and effects, particularly if there is no spouse to whom possessions which have some emotional value like jewellery or family heirlooms would normally pass;
• wishes in relation to assets which do not form part of the estate or if the testator leaves the estate or part of it in a discretionary trust, eg directions for balancing the distribution of lump sum superannuation benefits or pension entitlements with payments of income from a testamentary trust to beneficiaries, especially if these are children under the age of 18;
• the names of any charities or causes that the testator would like considered;
• details of any advisers or family friends from whom assistance could be obtained, eg accountants, financial planner or legal advice; and
• a list of passwords to allow the executor to deal with the testator’s online persona.

Importantly, the list should not contain any instructions that could be interpreted as testamentary in nature, as the determination of whether the wishes are intended to be a formal Will or part of it could involve the estate administrators in litigation, expense and delay.

A letter or list of wishes can be used to speak more personally to the executor or the beneficiaries. It can also be updated as the family and personal circumstances change.

For assistance in preparing a list of wishes as part of your Estate Planning or if you have any questions in relation to this article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.