Statement of Wishes – Worth it or not?

What effect does a statement of reasons (or wishes) have in defending a challenge to an estate? In the case of Plummer & Anor v Montgomery [2023] NSWSC 175 (Plummer), which involved an unsuccessful family provision claim by two adult stepchildren, the Court placed weight on the deceased’s written reasons for not making any provision.

But what are the risks for will-makers when preparing such a statement?

Plummer case

The deceased left a Will dividing her estate equally between her two biological children and her granddaughter. The deceased’s husband had predeceased her and the deceased had made no provision in her Will for two of her husband’s daughters (the Plaintiffs).

The Plaintiffs therefore made an application for a family provision order pursuant to the Succession Act 2006 (NSW) (the NSW Act). Given that the NSW Act does not have a separate category for step-children claimants (unlike Victoria), they were required to claim under the ‘member of the household’ category.

Ultimately, whilst the court was satisfied that the Plaintiffs were eligible applicants and that there were factors warranting the making of an application, the Court declined to make an order for provision, essentially finding that:

  • There was no close personal relationship between the deceased and the Plaintiffs, and they were not brought up as a permanent member of the deceased’s family;
  • The deceased did not provide either of the Plaintiffs with any financial support during her lifetime; and
  • There was no evidence of a close familial bond and the deceased did not assume a close maternal role. As adults, the Plaintiffs and the deceased rarely saw each other.

The deceased’s intentions

Similar to Victoria, the NSW Act permits any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased, to be considered by the Court.

In Plummer, the deceased also left a document with her Will headed “Testamentary Document to be Incorporated in the Will”.

In this document, the deceased declared her wish that the Plaintiffs were not to benefit from her estate and set out her reasons why. Such wishes reflected the manner in which the Plaintiffs had caused the deceased great anxiety, stress and how they had displayed “intolerable behaviour” particularly at a time when her late husband was unwell. The deceased’s document concluded with her belief that her decision was “just and reasonable” when all matters were considered.

In declining to make an order for provision for each of the Plaintiffs, the Court “also remembered the deceased’s testamentary wishes, as expressed not only by the terms of [her] Will, but also by her written statement.”

Should you prepare a Statement of Wishes?

As evidenced by Plummer, the Court can consider a written statement by the deceased in an application for family provision, and considerable weight may be placed on it. However, the Court also pointed out that care must be taken when considering such statements. In some instances, a statement may unintentionally bolster a plaintiff’s claim for further provision.

Therefore, whilst a statement of reasons can be beneficial, there are also inherent risks associated with preparing and seeking to rely on such document. For instance:

  • It is only a snapshot of the relationship or behaviour at a particular point in time. Such statements may be shown to be untrue or inaccurate at the time of death, and could be easily rebutted, which could strengthen a family provision claim. Accordingly, as with the Will itself, a statement of reasons should be regularly reviewed to ensure it remains accurate;
  • The statement of reasons should not contradict the Will. Ideally, the statement should be prepared in conjunction with the Will, in consultation with the will-maker’s lawyer and signed contemporaneously with the Will;
  • The statement should be prepared in a manner that allows the executor/s to exercise their discretion as to whether it is used to defend a claim or not, given in some instances, it can do more harm than good (however, an executor may be compelled to produce it regardless);
  • A statement of reasons should ideally be stored in a safe place with the Will or amongst the will-maker’s personal papers, so that it may be easily found by their executor/s; and
  • A statement of wishes will not make a Will ‘watertight’ and should never replace consideration of potential strategies to reduce the impact of a claim, such as by minimising the pool of assets subject to an estate challenge.

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