Letter of Wishes: Drafting and Legal Effect

Explain What a Letter of Wishes Does

A letter of wishes, also called a statement of wishes, explains the client’s preferences and the reasons behind them. It can help an executor understand personal circumstances or guide a trustee choosing between permitted distributions.

Separate the client’s requested outcome from the document intended to create it. A gift in a will disposes of property under that instrument. A separate request to consider a family member’s needs supplies context for a decision, where the decision-maker has that discretion.

Calling a document a ‘wish letter’ does not resolve a passage that says ‘I give my savings to my niece’. That wording raises a different question about testamentary intention. The Law Society of NSW’s estate-planning guidance addresses informal documents and the court’s dispensing power under section 8 of the Succession Act 2006 (NSW).

Read the whole document alongside the final will. Identify any reference to the letter in the will and assess whether incorporation or another legal issue changes its status. Resolve that question before describing the passage as optional guidance.

Separate Wishes From the Will and Trustee Powers

Compare each request with the gifts, beneficiary definitions and powers in the governing instrument. A personal request cannot supply a distribution power that the instrument and applicable law withhold.

An executor carrying out a fixed gift has a different task from a trustee exercising a discretionary power. Even where the same person holds both offices, identify which office controls the proposed decision. For the wider drafting process, keep the letter review alongside will preparation.

In Monaghan v Monaghan; Monaghan v Monaghan [2016] NSWSC 1316 at [49], the Court accepted that a trustee could consider a memorandum of wishes. The judgment examined the deed’s powers and the proposed exercise of discretion. The memorandum was relevant within that structure.

A Fictional Distribution Request

Assume a testamentary trust permits its trustee to apply income for the education of either of two named grandchildren. The client’s letter asks the trustee to consider one grandchild’s additional learning-support costs.

A proper consideration record identifies the permitted purpose and obtains the relevant costs. It also considers the other grandchild’s circumstances before deciding what support to provide. The letter explains a preference within the assumed power.

An incorrect approach treats the letter as requiring every future payment to go to the preferred grandchild. That bypasses the assumed discretion. If the request instead concerns someone outside the beneficiary class, the letter does not add them to that class.

The detailed powers and administration of a testamentary trust require their own review. Keep the wishes document tied to the particular clauses under which its recipient can act.

Take Independent Instructions and Record the Reasons

Take the client’s own instructions about the intended recipient and each proposed wish. Record why the client wants that person to consider it, including relevant relationships and any change from earlier guidance.

Speak with the client privately about decisions that benefit an accompanying relative. Record who arranged the appointment, who supplied a draft and who attended each discussion. Separate what the client says from information a relative provides.

Ask open questions about the proposed guidance and its effect. Record the client’s explanation in their own words, including any uncertainty about past events. An allegation supplied by a relative must not silently become the client’s settled account.

The Law Society’s capacity guidelines treat capacity as specific to the decision. They recommend contemporaneous records of the questions asked and the client’s responses where capacity is in issue. Document communication support and any clinical assessment obtained, alongside your assessment of the relevant legal task.

Pressure and capacity require separate attention. Record any attempt by another person to answer for the client or insist on particular wording. Resolve doubts about independent instructions before finalising the document.

Draft Clear Guidance Without Changing the Gifts

Draft each passage to identify the wish and explain its basis without silently rewriting the will. The following fictional passages illustrate drafting choices for solicitor review against the actual instruments.

Purpose and Recipient

I address this letter to the trustee of the education trust established under clause 8 of my will. I intend it to explain matters I would like the trustee to consider when exercising its discretion.

This passage identifies the recipient and the assumed power. Confirm that clause 8 establishes that trust and grants the discretion described. A general label cannot repair an incorrect clause reference or contradictory operative wording elsewhere in the letter.

Matters to Consider

I would like the trustee to consider Mia’s additional learning-support costs when assessing requests for education assistance. I recognise that the trustee must decide each request under the trust terms and the circumstances then existing.

The request supplies a reason for consideration without promising a fixed entitlement. Check the instrument’s definitions and education power before using this structure. If the client wants a guaranteed payment, address that instruction through the binding arrangements.

Supporting Context

Mia has received individual learning support during secondary school. My wish reflects those additional costs. The trustee can obtain current information about her needs when considering assistance.

This explains the preference without assuming that circumstances remain unchanged. Record where the client’s information comes from and preserve any supporting documents the client supplies.

Resolve ambiguous wording before signing. ‘Give Mia whatever she needs’ leaves the recipient and purpose uncertain. ‘Replace the gift to Sam with a payment to Mia’ appears to change the gifts. Ask which outcome the client intends, then prepare the appropriate document instead of leaving incompatible requests in the letter.

Keep the Document Consistent and Available

Review the final instruments before arranging the wishes document’s signing and storage. Use the following order so each later step rests on the correct version.

1. Identify the final will, any codicil and relevant trust terms. Record the clauses that govern each requested decision.
2. Read every wish against those instruments. Resolve inconsistent gifts, unsupported powers and outdated descriptions of beneficiaries.
3. Give the letter a version identifier and record its completion date. Identify earlier wishes documents it replaces, keeping them distinguishable in the file.
4. Keep a signing record identifying the exact version, the client’s confirmation and those present. Address any remaining capacity or pressure concern before completion.
5. Record where each original is held and who has copies. Agree what the intended recipient can be told, respecting the client’s confidentiality instructions.
6. Check retrieval. A person authorised to administer the estate or trust must be able to locate the operative instruments and identify the current guidance.

The Law Society’s digital-document guidance distinguishes original safe custody documents from files suitable for digitisation. Keep the safe custody register separately and securely. Do not apply routine file destruction to the estate-planning originals without considering their status and the client’s instructions.

When the client changes a wish, repeat the consistency review. A clear version history prevents an old letter in an executor’s drawer being mistaken for the current guidance.

Use the Letter During Administration or a Dispute

Record how the executor or trustee considers the letter in the decision they actually face. Identify the current document, the relevant power and the circumstances considered. Keep the decision and its reasons with the administration records.

If the trustee departs from a preference, record the circumstances supporting that decision. A request for education assistance might be overtaken by completed study or different needs among beneficiaries. The record must show the exercise of the actual power, with the letter treated according to its established legal status.

In NSW, section 63 of the Trustee Act 1925 provides a route to judicial advice on trust administration or interpretation. Consider that route where the meaning or proposed use of the document creates a material administration question.

A letter also needs careful handling if a dispute develops. Justice White’s discussion of trust information and wishes documents explains the different reasoning in Hartigan Nominees Pty Ltd v Rydge. Do not promise absolute secrecy merely because a letter is marked confidential. Assess access and disclosure in the particular circumstances.

Preserve the original letter and earlier versions, with the instructions and signing records. Keep corroborating correspondence and records of any financial support mentioned in the explanation. Distinguish the fact that the client made a statement from whether the underlying assertion is true.

A statement of wishes does not decide whether a later family provision claim succeeds. Assess the applicable succession and evidence rules for the proceedings before relying on any statement. Keep the original evidence available so the solicitor can address its use, accuracy and weight separately from the deceased’s expressed preference.