When making a new Will and Testament, there may be details that you wish to include as to the reasons for its provisions which aren’t suitable for inclusion in the Will. In such circumstances, we would recommend that you make what is known as a “Memorandum of Wishes”. In this blog post, we explain what a Memorandum of Wishes is and why you may need one.
What is a Memorandum of Wishes?
A Memorandum of Wishes is a document to file with your Will that expresses your feelings, thoughts, reasons or wishes regarding the provisions of your Will and/or the administration of your Estate. Whilst the contents of such a document are not meant to be binding on your Executors in the same way as a Will (nor should they purport to be), they can provide important directions or clarifications for your Executors and Trustees when you are no longer around to provide them. Generally, a Memorandum of Wishes is written in the first person and bears the same date as your Will. While anyone can prepare a Memorandum of Wishes in their own time, we recommend that it is signed contemporaneously with your Will, and in front of a witness, to give the contents of the document additional weight.
The reason for the observation that it should not be expressed to have any testamentary effect is to ensure that by signing it, especially subsequent to your Will, your Will is not revoked. It is also important to make it clear to the Registrar of Probates when an application for a Grant of Probate of your Will is lodged that it is effectively an “aide memoire” and not an additional document meant to have any testamentary effect.
Why do I need a Memorandum of Wishes?
There are several reasons why a Memorandum of Wishes may be appropriate for you.
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You have excluded someone from your Will and want to provide an explanation
If you have excluded someone from your Will (in whole or in part by way of a reduced share) who may have had an expectation of a different outcome, such as one of your children, a Memorandum of Wishes allows you to explain why you have made such a decision. We can assist you in its preparation which anticipates a potential claim by the aggrieved would-be beneficiary against your Estate and which document can be produced in a proceeding for “further provision” as evidence of your intentions.
For example, your Memorandum of Wishes could detail how you had become estranged from the them, including a timeline of your relationship and details of their strong financial situation (or details of the financial assistance you have rendered previously in comparison with other beneficiaries) that has lead you to the conclusion to prepare your Will in such a way While such a document does not prevent a claim on your Estate, making a Memorandum of Wishes is part of a ‘belt and braces’ approach to protect your Estate as much as possible and enable you to “speak from the grave”.
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You have minor children and wish to provide guidance to their Guardians
For clients with minor children, we would strongly recommend including a clause in your Wills appointing a Guardian or Guardians for your children in the event that both parents were to die before your children’s 18th birthdays. In such circumstances, a Memorandum of Wishes accompanying your Will can set out further directions or suggestions as to how you wish your children to be raised. While the Will covers the powers of your Guardians, such as choosing where they and your children shall live, the Memorandum of Wishes can set out your preferences, such as where you would like your children to attend school, whether you would like them to be raised in a certain religious tradition, whether they should have a “gap” year prior to commencing tertiary education, and so on.
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You have a family Trust and wish to provide guidance for how its assets should be employed for the benefit of the family members.
As mentioned in our blog post on which assets form part of your Estate, assets held in a family Trust do not form part of your Will. Its provisions however will transfer the control of your Trusts, usually to your Executors. You may have adopted a particular distribution strategy for income of your Trust during your lifetime which you would like your Executors to continue after your death. You may also have specific wishes for assets that form part of the capital of the Trust, such as real property, but you are aware of potential taxation consequences of binding the Trustees of the Trust to act in a certain way. Such directions do not belong in a Will as they deal with matters outside of the Estate but they are still matters which should be recorded and filed with your Will in a Memorandum of Wishes.
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You have specific chattels (personal items) that you wish to leave to certain beneficiaries
While bequests of chattels can be made in your Will, we prefer to include a clause that directs your Executors to distribute your chattels according to any list you have made and filed with your Will for all but the most valuable assets. The reason for dealing with chattels in a separate list is that it is easier for you to alter the list as you add to or dispose of chattels. It also prevents the Will from becoming ‘clogged up’ with a long list of bequests. For example, you may have an extensive collection of jewellery which varies in value that you wish to distribute to your granddaughters for sentimental reasons. Having a list separate to your Will (either in a Memorandum of Wishes or even a simple dot-point list) allows you to make simple changes as your collection grows or shrinks, such as when you gift a piece to a recipient for her birthday or wedding. Any items not included in the list shall be distributed according to your Will, usually to your spouse or divided equally between your children or by them having a methodology of taking it in turns to choose.
Comprehensive estate planning and Will making is not always as simple as filling in a template Will. Sometimes, there are matters that should be considered by your Executors outside of the confines of the Will. We are experienced in assisting clients with complex family situations and assets held in multiple structures and can help you prepare a Will and, if appropriate, an accompanying Memorandum of Wishes that covers the type of issues referred to above.
Please contact us today to arrange a no-obligation meeting to discuss such an issue or any other of your Estate Planning needs.