Letter of Wishes & Funeral Instructions | Cremations Act

In Australian practice, a letter of wishes is a private, signed statement addressed to your executor (and sometimes to the trustee of a testamentary trust) explaining how you would like discretions exercised after your death. It does not dispose of property. That job belongs to your Australian will drafted to state succession law, signed before two witnesses. The letter guides the decisions the will leaves open: how personal items are shared among the residuary beneficiaries, how a trustee should weigh the needs of a child with a disability, what kind of funeral you want. Because it is not executed as a will, you can rewrite it whenever life changes.

Lawyers distinguish three documents that people often merge. A codicil amends the will and must meet the same execution formalities. A memorandum incorporated by reference becomes part of the will, but only if it existed when the will was signed and the will identifies it precisely, which rarely happens. A letter of wishes is the third category: it binds no one, and it should say so on its face. Funeral instructions share that status, because Australian law gives the executor, not the deceased, the final word on disposal of the body.

The rule dates from 1882. In Williams v Williams (1882) 20 Ch D 659 the court held that there is no property in a dead body and that a person cannot bind an executor by directions about burial. Australian courts follow it, most often citing Smith v Tamworth City Council (1997) 41 NSWLR 680, where Young J set out the principles: the executor named in the will has the right and the duty to arrange disposal of the body, and without an executor the role passes to the person with the highest entitlement to administer the estate. Judges weigh the deceased's wishes alongside cultural and religious considerations without being bound by them.

Statute has carved out exceptions for cremation only, and Victoria is the clear outlier with no general rule of this kind. The strongest example is the Queensland Cremations Act 2003 provisions on a deceased person's wish to be cremated, which state in terms that they override the common law. Other states take narrower routes, set out below. In several of them, a signature turns a preference into an enforceable instruction.

The second risk runs the other way. Every jurisdiction has a dispensing power that lets the Supreme Court admit an informal document as a will if the deceased intended it to operate as one: s 8 Succession Act 2006 (NSW), s 9 Wills Act 1997 (Vic), s 18 Succession Act 1981 (Qld), s 32 Wills Act 1970 (WA) and s 12(2) Wills Act 1936 (SA). A letter that reads like a gift of property can be argued into probate. Careful drafting states that the author has no testamentary intention and that the will prevails over anything in the letter inconsistent with it. In family provision claims, s 100 Succession Act 2006 (NSW) also expressly admits evidence of the deceased's reasons.

Most people prepare a letter of wishes at the same sitting as their will, and that is the right moment. A will leaving "my personal chattels to my children equally" is clean on paper and a source of friction in practice, because three children cannot each take the same engagement ring. The letter of wishes is also the natural home for funeral wishes, including whether a prepaid funeral plan already exists and where the paperwork is filed.

Blended families are the second big trigger. When a spouse and children from an earlier relationship are all grieving, silence about the service, the eulogy or the resting place of the ashes is exactly the gap that ends up before a Supreme Court judge. Business owners have a separate reason. The letter can tell your executor which relative understands the company and who the accountant is, but it cannot override pre-emptive rights in a shareholders agreement for a Pty Ltd company, so the two documents must be read together.

Two edge cases deserve a mention. Anyone on the Australian Organ Donor Register should record that decision, because the family will still be asked to confirm it at the hospital. And people holding digital assets, from cryptocurrency wallets to a monetised YouTube channel, need a letter of wishes that explains where access information lives without writing passwords into a document that may be photocopied.

The template opens with an identification block and a statement of non-binding intent, confirming that the letter accompanies a will of a stated date, expresses wishes only and yields to the will on any inconsistency. That paragraph is the main defence against a dispensing power application, so it sits on page one.

• Your funeral section records burial or cremation as a signed statement, then the service, the funeral director, music, readings and speakers.
• Body donation gets its own paragraph, since university programs usually require registration in advance and acceptance within hours of death.
• For personal items, the schedule names each object and its intended recipient, plus a fallback for anything unlisted (for example, rotating choice among the residuary beneficiaries).
• Digital accounts are handled platform by platform: close, memorialise or download, and where access details are kept, never the passwords themselves.
• Pets, unfinished projects and personal messages close the letter, with a note of where original documents and insurance policies are stored.

An optional passage speaks to the trustee of any testamentary trust about distributing income and capital. Superannuation is listed but deliberately not dealt with: a death benefit is paid by the fund trustee, and the document that directs it is a valid binding death benefit nomination under the SIS Regulations. Your letter of wishes simply points the executor to it.

In New South Wales, the practical test sits with the medical referee who issues the cremation permit under the Public Health Regulation 2022 (NSW). The referee must be satisfied that the deceased left no written objection to cremation. A signed letter stating "I do not wish to be cremated" therefore stops a cremation outright. NSW has also led the work on digital assets: the NSW Law Reform Commission's Report 147 recommended a statutory access scheme, later taken up as a national project by the Meeting of Attorneys-General. Until legislation arrives, executors depend on each platform's terms.

Victoria works differently. Apart from a narrow rule for disposals ordered by a magistrate or coroner under the Cemeteries and Crematoria Act 2003 (Vic), no general statute gives effect to a wish to be cremated. The executor's common law discretion governs. The tone of the letter therefore matters more in Melbourne than in Brisbane, because the document has to persuade when it cannot compel.

A cremation wish gets its strongest protection in Queensland. Under s 7 Cremations Act 2003 (Qld), a personal representative who knows the deceased left signed instructions to be cremated must carry them out. The objection procedure in s 8, which otherwise lets close relatives block a cremation, does not apply where those instructions exist. An unsigned note on a phone will not trigger the rule. The signature is everything.

Executors in Western Australia face a duty rather than a pure discretion. The Cremation Act 1929 (WA) requires the administrator to use all reasonable endeavours to carry out a written wish to be cremated. It also makes it unlawful to cremate someone who left instructions against it. In remote areas, naming an acceptable alternative to a distant crematorium spares the family a hard call.

South Australia sits closer to Queensland, with one twist. Section 9 of the Burial and Cremation Act 2013 (SA) lets a parent or child object to a cremation. A spouse or partner cannot object unless they are also the personal representative. The objection fails where the deceased directed cremation by will or another signed and witnessed document, hence the optional witness line in our template.

You start by choosing your state or territory, because the form adjusts the cremation wording and the witness option to local rules. The questionnaire then asks for the date of your current will and the name of your executor, so the letter of wishes refers to the right document and reaches the right person. Most users finish the practical funeral questions quickly and spend longer on readings, music and speakers.

The personal items schedule works best if you walk through the house first. Describe each object so a stranger could identify it: "my grandmother's gold watch engraved M.K." leaves no room for argument, while "my jewellery" leaves plenty. For digital accounts, list the platform, the linked email address and what you want done, then say where access details are stored.

Once the draft is generated, you sign and date it. Keep the original with your will, give your executor a copy, and review both whenever you update your other personal legal documents for Australian estates, such as a power of attorney or an advance care directive.

The most damaging mistake is writing a letter of wishes as if it were a will. A phrase such as "I give my car to Tom" invites a dispensing power application, and a letter that postdates the will may be argued to revoke part of it. Use the language of wishes and requests, and let the will do the giving. Hiding the letter is nearly as bad. Families regularly find it in a drawer after the cremation. Funeral decisions are made within days of death, long before probate is granted, so your executor needs to know where the letter is today.

Contradiction causes the next set of problems. A letter leaving a painting to a niece while the will gives "all my artworks" to a son forces the executor to choose between the legal gift and the moral one, and the son can insist on the will. Writing passwords into the letter is another frequent error: the document will be copied, and logging into someone else's account without authority can breach platform terms and, in some cases, Part 10.7 of the Criminal Code Act 1995 (Cth). Finally, many letters are never updated, though a separation or a new grandchild can make an old one actively unhelpful.