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It’s a part of life no one really wants to consider – the prospect that a child will be left without both parents due to an accident, illness or some other cause.
And yet this is an eventuality that should be planned for to provide peace of mind. What will happen to your children if you and your partner (or ex-partner) both die, particularly if the children are young?
This issue is generally dealt with in a person’s will by the appointment of a guardian/s to care for all aspects of a child’s upbringing in the absence of their parents.
How you wish your child to be raised after your passing – what values you want to be imparted to them, what type of education they should receive, as well as other matters – can be detailed in a ‘Statement of Wishes’ that accompanies your will.
This statement helps guide the executor of the will to realise your desires, and the guardian to fulfil your wishes in relation to your child/ren.
How do you go about preparing a Statement of Wishes?
A Statement of Wishes (sometimes also known as a Letter of Wishes) is an informal document that provides guidance to the executor of a will.
The document itself is not legally enforceable, but helps the executor better understand the will-maker’s wishes across a range of issues, some of which include:
- an explanation as to why a certain beneficiary was not included in the will;
- how special heirlooms or other personal possessions are to be distributed;
- where documents, passwords and other personal effects are kept;
- other information not appropriate to be written into the will, such as details of assets and income in a trust, superannuation or a business, and;
- in the situation we’re looking at here, the care and raising of children under 18.
In relation to children, the content of a Statement of Wishes may obviously differ greatly depending on whether the children are teenagers, school-age or infants. In any event, issues related to upbringing, religion, education, health, and contact with family members and friends are some of those addressed.
Some statements may wish to address a more detailed and varied range of issues, from a computer and mobile phone use to pets, alternative health treatments, overseas trips and extracurricular activities.
Many people use a Statement of Wishes to act as a kind of moral or values code, both for their children and the appointed guardian/s. It may confirm that the children’s guardians are appointed because they share these values and will raise them in line with those values.
Such a statement may also provide more specific guidance on matters such as family trusts. This could include detail on the age at which children should become involved in a family trust, whether children should receive equal distributions from the trust, and whether extra financial help should be provided to any child who experiences financial hardship.
Key things to remember about a Statement of Wishes
While a Statement of Wishes is not legally binding, great care and diligence nevertheless need to be taken in drafting the document as its contents can still be taken into account in any subsequent dispute or disagreement about the terms of your will.
Specifically, the letter should be addressed to the executor of the will and labelled ‘private and confidential’. The statement should also make it clear that the executor is not obliged to follow its terms, nor is it a formal document.
For this reason, the language used in a Statement of Wishes should avoid being directive or able to be construed as restricting, for example, a trustee’s discretion. To do this avoids the possibility of the statement being regarded as an informal will or requiring a resettlement of trust.
At South Geldard Lawyers succession law, including the making of a will or composing a Statement of Wishes, is one of our specialties. Call us today if you have any questions or queries about any of the issues raised in this article.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
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