Statement Of Wishes

A Statement of Wishes is also known as a Memorandum or Letter of Wishes.  

­čî┐Purpose: A statement of Wishes is typically used by someone setting up a trust (the settlor) or making a will that includes a trust (the testator). It guides trustees in managing trust assets. While there are no strict rules, it should not conflict with the terms of the Will or trust.

­čî┐Guidance for Trustees: For discretionary trusts (where trustees have broad discretionary powers), it guides them on issues such as which discretionary beneficiaries should benefit, when, and on what terms.

  • It allows the testator to express intentions regarding:
  • Gifts to be made by the executors (money or personal possessions).Prioritisation of beneficiaries.
  • Use of trust assets for maintenance, education, or long-term benefit.
  • Duration of the trust, investment strategies, and distribution of income.
  • If someone has intentionally been left with nothing or less than other beneficiaries, the Letter of Wishes can explain why. This can help during probate and reduce the likelihood of a successful challenge against the Will.

­čî┐Legally Non-Binding: A Letter of Wishes is not legally binding, but trustees must consider it and usually follow it.

Trustees often find it reassuring and helpful to know they follow the testatorÔÇÖs wishes. It helps them make important decisions as if the testator were in the room.

­čî┐Confidentiality: A Letter of Wishes can be kept confidential from beneficiaries.

­čî┐Flexibility: A Statement of Wishes provides remarkable flexibility. Unlike formal amendments to a will or trust deed, it can be changed without legal formalities. This flexibility allows you to adapt your wishes as circumstances evolve, ensuring that your intentions remain up-to-date.

­čî┐Risk of Separation: One of the most significant risks associated with a Letter of Wishes is that it might separate from your will. Since it exists as a separate document, thereÔÇÖs a chance it could get lost or overlooked.

Consider storing your Statement of Wishes professionally alongside your formal Will to mitigate this risk. This ensures that it remains accessible and aligned with your overall estate planning.

­čî┐Challenges to Your Will: If you anticipate potential challenges to your Will, the Statement of Wishes can explain your decisions. Along with a clearly drafted Will, a statement of Wishes reduces the chance of challenges being successful. 

­čî┐Importance in Trusts: At Fern Wills & Trusts, we strongly recommend creating a Statement of Wishes for every Discretionary or Life Interest Trust. So much so we pay for it ourselves and give one free of charge with each of these trusts.

­čî┐Remember that while a Statement of Wishes is useful, it is not a replacement for a Will or Codicil (an amendment to a Will). If you have specific wishes that must be followed, these should be included in your Will.

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