A Letter of Wishes is not legally binding in Australia, unlike a handwritten will. It is typically used as a supplementary document to a will, providing guidance and personal expressions of wishes to the executors and beneficiaries of the will.
While it can provide valuable insight into the intentions and preferences of the person who wrote it, it does not carry the same legal weight as a will. Executors and beneficiaries may consider the contents of the Letter of Wishes, but they are not legally obligated to follow its instructions.
The primary purpose of a Letter of Wishes is to offer non-binding guidance, often on matters that are more personal and less suited to the formal and legal nature of a will.
Will vs A Letter of Wishes
A will and a Letter of Wishes are essential documents in estate planning, but they serve different purposes and legal standings. Here’s a comparison of the two:
Legal Status
- Will: A will is a legally binding document. It is enforceable in a court of law and dictates how your assets and estate should be distributed after your death. It must comply with legal requirements, such as being written by a person of sound mind, being signed by the person making the will (the testator), and being witnessed according to the jurisdiction’s laws.
- Letter of Wishes: A Letter of Wishes is not legally binding. It is an informal document that provides guidance and expresses personal wishes to the executors and trustees. It can offer insight into the reasoning behind the decisions made in the will, but it cannot enforce those decisions.
Content
- Will: A will typically includes information about the distribution of assets, the appointment of executors, guardians for minor children, and other legally enforceable instructions regarding an estate.
- Letter of Wishes: This might include more personal, detailed guidance on how the testator would like specific items or affairs handled, preferences for funeral arrangements, explanations for the distribution of assets, or advice to guardians of minor children.
Flexibility and Amendments
- Will: Changing a will usually requires formal amendments known as codicils or drafting a new will, often involving legal oversight.
- Letter of Wishes: It can be updated or changed more quickly and informally, as it doesn’t require the same legal formalities as a will.
Purpose
- Will: Its primary purpose is to legally enforce the distribution and management of an estate after death.
- Letter of Wishes: It aims to provide non-binding guidance and clarity to executors and beneficiaries, helping them understand the testator’s wishes and intentions.
Confidentiality
- Will: After the grant of probate, a will typically becomes a public document.
- Letter of Wishes: It generally remains private, shared only with those who need to know its contents, like the executors or family members.
Witness Requirement
- Will: It usually requires witnesses to be legally valid.
- Letter of Wishes: It does not typically require witnesses.
A will is a formal, legally binding document that dictates how an estate should be managed and distributed after death. In contrast, a Letter of Wishes is an informal, non-binding document that provides guidance and expresses personal preferences to help inform the executors and beneficiaries. Both play essential roles in estate planning, but they serve different functions.
Can A Letter Of Wishes Be Challenged?
A Letter of Wishes, while not legally binding, can be challenged, particularly if it is perceived to influence the distribution of an estate in ways that raise legal concerns. However, the nature of these challenges would differ from those directed at a will, given the non-binding status of a Letter of Wishes.
Here are a few scenarios where a Letter of Wishes might be challenged:
- Influence on the Executor or Trustee: If beneficiaries or other interested parties believe that the executor or trustee is using the Letter of Wishes in a way that contradicts the legal directives of the will or trust, they might challenge the actions of the executor or trustee.
- Clarity and Consistency with the Will: If the Letter of Wishes contains statements significantly different from the provisions of the will, this could lead to disputes among beneficiaries, particularly if they feel the Letter of Wishes is being used to influence the distribution of the estate unfairly.
- Coercion or Undue Influence: If there are concerns that the Letter of Wishes was written under duress, coercion, or undue influence, parties might challenge its contents, especially if they believe this impacted the deceased’s intentions as expressed in their will.
- Mental Capacity: Similar to a will, if there is a question about the individual’s mental capacity at the time the Letter of Wishes was written, its contents could be questioned.
It’s important to note that while these challenges can arise, the scope and impact of such challenges are typically more limited than those against a will since a Letter of Wishes is not a legally binding document.
The legal proceedings would focus more on the actions of the executors or trustees concerning the will and trust rather than on the Letter of Wishes itself. Legal advice from an expert will lawyer should be sought to understand the implications and the appropriate course of action.
Does A Letter Of Wishes Need To Be Witnessed?
In general, a Letter of Wishes does not need to be witnessed to be considered valid, especially since it is not a legally binding document. The purpose of a Letter of Wishes is to provide guidance and personal instructions to the executors or trustees of a will or trust. Unlike a will, which has strict legal requirements for witnessing to ensure its validity, a Letter of Wishes is more informal.
However, there are a few considerations to keep in mind:
- Credibility: Having a Letter of Wishes witnessed can add to its credibility, especially if there is a question about its authenticity or the circumstances under which it was written.
- Consistency with Legal Practices: In some cases, individuals might choose to have their Letter of Wishes witnessed following similar formalities to a will to reinforce the seriousness and thought they have put into their wishes.
- Jurisdictional Variations: While the general rule is that witnessing is not required, legal practices and norms can vary. It is always advisable to consult with a legal professional in your jurisdiction to ensure that all estate planning documents, including a Letter of Wishes, are prepared following local laws and customs.
While not legally necessary, witnessing a Letter of Wishes can sometimes be a prudent step to enhance its perceived validity and sincerity.
Challenging a Letter of Wishes Due to Diminished Mental Capacity
Our client approached Walker Pender seeking advice on the legal standing of a Letter of Wishes left by her late father. The father, who did not have a formal will, left behind a Letter of Wishes that unequally distributed his estate, allocating 50% of all assets to his older son. Our client raised concerns about her father’s mental state at the time of writing the letter, noting his advanced dementia.
To assist our client, we first established the non-binding nature of the Letter of Wishes, emphasizing that it cannot override intestacy rules given the absence of a valid will. We then focused on gathering medical evidence to support the claim of her father’s diminished mental capacity, contacting medical experts who could testify about the progression and impact of his dementia.
With this evidence, we successfully argued that the Letter of Wishes, written under questionable mental capacity, should not influence the distribution of the estate. This approach aligned with the principles of equitable distribution under intestacy laws. The court, acknowledging the father’s impaired mental state and the lack of a legally binding will, ruled in favor of our client. The estate was distributed equally among all siblings, ensuring a fair and just outcome in line with intestacy rules.
Is a Letter of Wishes Legally Binding?
Unsure if a Letter of Wishes is legally binding? Walker Pender is here to guide you through the complexities of estate planning. Our expert team can help you understand the legal status of a Letter of Wishes and ensure your estate is managed as you intend. Don’t let uncertainty affect your future plans. Contact Walker Pender today for personalised, professional advice to secure peace of mind for you and your loved ones.
