Updated 23 October 2026
Wills - Potential Problem #36: Not Documenting Personal Wishes
Writing down personal wishes can help your family make decisions without guessing what mattered to you. The document you use matters. A gift of jewellery, a preference for a religious funeral and instructions about future medical treatment do not all have the same legal effect.
A will deals with your estate after death. A letter of wishes generally provides guidance alongside it. Healthcare and financial decisions during your lifetime need separate consideration. A coordinated plan gives the right people both clear information and, where required, legal authority.
1. Put intended gifts in your will
If you want a particular person to inherit an item or a share of your estate, give your solicitor clear instructions for the will. Identify the beneficiary and the property, explain any conditions, and consider a substitute if the intended recipient dies before you. NSW Government guidance on wills explains beneficiaries, executors and alternative gifts.
For example, a request that your granddaughter receive a particular necklace should be considered as a specific gift. A note explaining the necklace’s family history can accompany that gift. Simply writing that you hope she will have it may leave the executor facing conflicting instructions or a request that the will does not authorise.
Check ownership as well as intention. You cannot assume your will controls an item owned by a company, held on trust or already given away. Clear descriptions, photographs and ownership records can help identify the intended gift, but a photograph or inventory does not itself change who inherits.
2. Use a letter of wishes for practical and personal guidance
A letter of wishes can explain preferences that do not need to operate as binding gifts. It might record the stories behind family photographs, people to contact after your death, preferred funeral readings, cultural practices or practical information about caring for a pet.
Explain priorities and workable alternatives. If a particular venue is unavailable, identify what matters most about the ceremony. If you hope a family archive will be preserved, describe its contents and suggest who could help. Distinguish a preference from an intended obligation so your family understands the flexibility you want them to have.
Where a will establishes a discretionary trust, a letter may explain considerations you would like the trustee to weigh. The trustee must still act under the trust terms and their legal duties. A letter cannot simply require them to disregard those obligations or confer powers the trust does not give them.
Avoid using the letter to impose new conditions on an outright gift. If you want a beneficiary’s inheritance held until a particular age, or used through a trust for a defined purpose, discuss suitable provisions in the will. Personal guidance alone may not achieve that result.
3. Understand the limits of a letter of wishes
A genuine NSW decision illustrates this distinction. In Stansfield v National Australia Trustees Ltd; Cory & Ors v National Australia Trustees [2004] NSWSC 1107, the deceased had established trusts under his will and also left a letter of wishes. At paragraph 3, the Court expressly described that letter as non-binding on the trustee.
The proceedings concerned family provision and trust arrangements. They were not a dispute about missing funeral instructions. The relevant lesson is that recording a wish does not automatically give it the same force as an enforceable will or trust provision.
However, a document’s label is not decisive. Under section 8 of the Succession Act 2006, the Court can recognise certain documents expressing testamentary intentions despite non-compliance with formal execution requirements. A later letter purporting to change gifts may create an informal-will question. Arrange a properly prepared new will or codicil when changing beneficiaries, rather than relying on a note.
4. Share funeral preferences before they are needed
Funeral arrangements often happen before a will is located or read. Give accessible instructions to your executor and the people likely to organise the funeral. NSW Government guidance on funeral wishes recommends recording and discussing those preferences.
Include relevant religious or cultural customs, your preferred burial or cremation arrangements, people to notify, and details of any existing arrangements. Name the particular parish, celebrant or community contact if that matters to you. Do not assume family members share the same understanding of your beliefs or preferences.
Funeral wishes are generally not legally binding, although an executor should try to follow reasonable requests. There is an important exception: a known written direction against cremation must be respected. Section 102 of the Public Health Regulation 2022 also addresses written directions about the particular method of cremation. Legal Aid NSW’s funeral guidance explains the practical position.
Discuss feasibility in advance, particularly for burial overseas or on private land. Recording the request does not secure the permissions, arrangements or authority needed to carry it out.
5. Keep healthcare and financial appointments separate
Your will does not authorise someone to make decisions while you are alive. An enduring guardian can make the personal, accommodation and healthcare decisions covered by their appointment when you cannot make them. An enduring power of attorney addresses financial and legal decisions and ends at death.
An Advance Care Directive records healthcare decisions for circumstances in which you cannot make or communicate them. NSW Health explains that a valid directive requires decision-making capacity, clear instructions and applicability to the circumstances. Discuss treatment choices with your doctor and share the directive with the people who may need it.
A general letter saying that you trust your daughter or prefer care at home does not itself appoint her as your attorney or guardian. The appointment documents and any healthcare directive should be consistent with your preferences, while allowing for the decisions and circumstances they actually cover.
6. Check the documents together
Illustration only: Helen’s will leaves her personal belongings to her two children equally. Later, she writes a letter asking for one painting to go to a niece and requesting particular music at her funeral. The music preference can guide the arrangements. The proposed gift raises a different issue because it conflicts with the will.
While Helen has capacity, her solicitor can clarify her intention and amend the will appropriately. If the letter is discovered only after her death, the executor should obtain advice about its legal effect before handing over the painting. The executor cannot assume either that the letter automatically overrides the will or that it can safely be ignored. This is a hypothetical example, not a client matter or court decision.
7. Keep clear records and make them accessible
Date your letter, identify the will it accompanies and keep a clear record of which version is current. Ask your solicitor to review changes affecting gifts, appointments or conditions. Do not alter the signed original will by handwriting new instructions onto it.
Tell your executor where the original will is held and where to find practical instructions. Give urgent funeral information to the relevant people separately. Store healthcare documents where treating professionals can access them. Keep passwords and recovery details in an appropriate secure arrangement rather than putting them into your will or a widely circulated family letter.
Review the documents after a death, relationship change, diagnosis, move or significant change in your wishes. Check that named contacts remain available. If a preference changes, replace outdated copies and tell the people who received them; several conflicting versions can undermine the clarity you intended to create.
8. Bring clear instructions to your appointment
Before meeting your solicitor, list the decisions that matter to you and identify which outcomes must be legally secured. Bring your existing will, appointment documents and any letters or lists you have already prepared. Explain any apparent conflicts and discuss alternatives where a request may be impractical.
CM Lawyers can help you decide which instructions belong in your will and which should be recorded separately. Explore our wills and estates services or contact Christine Manolakos and the team to review your documents and personal wishes together.
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