A well-drafted will is a precise legal instrument. It says who gets what, who is in charge, and under what conditions. What it does not do — and is not designed to do — is explain anything. It will not tell your executor why one child received more than another, whether you wanted to be buried or cremated, that the painting in the hallway is worth having valued, or that there is a superannuation account with an old fund nobody in the family has heard of. A letter of wishes is where all of that goes.
What a Letter of Wishes Actually Is
A letter of wishes — sometimes called a memorandum or statement of wishes — is a private, informal document that sits alongside your will and speaks directly to your executor, and often to your trustee or guardian as well. It is written in plain language, it can be as long or short as you like, and it does not need to be witnessed.
The critical point is that it is not legally binding anywhere in Australia. Your executor can read it and decide to do something different. That sounds like a weakness, but it is actually the whole design: because it carries no legal force, it can say things a will cannot safely say, and it can be updated in an afternoon without a solicitor and without the formalities that govern changing a will.
It is also private. Once probate is granted, a will becomes a public document that any interested person can obtain a copy of. A letter of wishes never enters that process. It stays between you and the people you chose to read it, which matters a great deal when you are explaining a difficult decision about family.
Why Not Binding Does Not Mean Not Useful
Executors and trustees in Australia generally do follow letters of wishes, for two reasons. The first is simple human decency — most people acting in the role genuinely want to do what the deceased wanted, and the letter is often the only place that intent is recorded. The second is that courts take these documents seriously as evidence. In a family provision claim, where someone argues they were not adequately provided for, a calm and contemporaneous written explanation of your reasoning is far more persuasive than silence. It does not stop a claim being brought, but it gives the court and your executor context they would otherwise have to guess at.
Where the letter does the most work of all is with discretionary trusts. If your will creates a testamentary trust, your trustee has broad discretion over who receives income and capital and when. That discretion has to be exercised for decades, potentially by someone who never met the beneficiaries as children. A letter of wishes is how you tell them what you were trying to achieve — protect a beneficiary who is not good with money, treat the children equally over time rather than equally each year, favour education over lifestyle. Without it, the trustee is left applying a legal power with no sense of purpose behind it.
What to Put In It
There is no prescribed format. The following covers what most Australian families find genuinely useful:
- Funeral and body preferences — burial or cremation, religious or secular, where you want your ashes, music, who should speak. Funeral wishes in a will are often read days too late.
- The reasoning behind your distribution — especially where shares are uneven, someone has been left out, or one child received substantial help during your lifetime.
- Guidance for guardians — your hopes for how minor children are raised, schooling, contact with extended family, and why you chose the guardian you did.
- Guidance for trustees — the purpose of any trust, and how you would like discretion exercised in the situations you can foresee.
- Practical asset information — which bank, which insurer, which super fund, where the title deeds are, which items are valuable and which only look valuable.
- Sentimental items and personal messages — who should have your grandmother's ring, and anything you want individual people to hear from you directly.
- Digital life — what accounts exist and what you want done with them. Never write actual passwords into the letter itself.
The Drafting Mistake That Causes Real Damage
This is the part most people are never warned about. Every Australian state and territory gives the court a dispensing power to admit an informal document to probate if it is satisfied the deceased intended that document to operate as their will. In New South Wales that is section 8 of the Succession Act 2006; the other jurisdictions have equivalent provisions. A letter of wishes that reads like a set of instructions — "I leave the Ballarat property to Sarah" — can end up being litigated as an informal will, or as evidence that you intended to change the will you already had.
The fix is a matter of tone. A letter of wishes should explain and request, never direct. Write "my hope is that", "I would like my executor to consider", "my reasons for the division in my will are". Do not restate gifts, do not contradict anything in the will, and do not attach the letter to the will itself — keep it as a separate document stored with it. Say plainly at the top that the letter is not intended to be a will or a codicil and is not intended to have legal effect. If your letter is doing anything beyond explaining, that content belongs in the will, and your estate planning solicitor should draft it there.
Be careful too about what the letter cannot reach. Superannuation is not controlled by your will, and a letter of wishes has no effect on a death benefit nomination. The same goes for jointly held property passing by survivorship and, in most cases, a life insurance policy with a nominated beneficiary. Writing your intentions for those assets into a letter of wishes does not move them.
This article is general information only and does not constitute legal advice. For advice specific to your situation, speak with a qualified Australian estate planning lawyer.
Keeping It Current, and Findable
A letter of wishes has one failure mode above all others: nobody knows it exists. It is unsigned, unregistered and unrecorded anywhere official, so if it is sitting in a drawer your executor never opens, it may as well never have been written. The second failure mode is going stale — a letter that names a guardian you no longer want, or a bank you closed six years ago, is worse than none at all. Date every version, destroy the old ones, and read it through again whenever your will is reviewed.
Custodium Vault is built for exactly this problem: a secure place to keep your letter of wishes next to your will, powers of attorney, insurance policies and account details, with the people you nominate able to reach it the moment they need to. Have a look at the features or the pricing to see how it works.