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In order to allow for maximum flexibility and to increase the tax efficiency of our Family / Discretionary Trust (or within one of our Smarter Wills as a Testamentary Trust) we will generally advise that you give your Trustee/s wide discretionary powers.
Where Trustee/s have wide discretionary powers it is always desirable and therefore we strongly recommend that you record your wishes (in a non-binding Letter of Wishes) regarding how you would like these powers to be exercised.
Your wishes including your reasons (where your reasons are not obvious) could be recorded in the Trust document or the Will itself.
However, for the following reasons a separate document is recommended:
1️⃣ To clearly evidence the non-binding nature of the document;
2️⃣ To easily allow for changes to be made without the need for legal formalities (your signature is normally witnessed, though not strictly essential and the letter should be dated so that changes can be easily identified);
3️⃣ To allow for periodic review (whilst this is still possible); and
4️⃣ Confidentiality.
Examples highlighting where the need for Confidentiality may arise:
➲ A Will after Grant of Probate is a public document; or
➲ A Beneficiary may attempt to exercise a right to see Trust information or a copy of the Will. In such circumstances confidentiality may only be retained via the use of a separate document.
This separate document is conventionally referred to as a Letter of Wishes, though it could also be called a Statement of Wishes or a Memorandum of Wishes.
Best Practice is to create your Letter of Wishes at the same time as you settle your Trust or execute your Will respectively.
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