Non-Binding Clauses of a Will (Vic)

A will is a legally binding document that expresses a person’s intentions regarding the distribution of their assets and the administration of their estate after death. However, not all provisions in a will are legally enforceable. Some clauses in a will are considered non-binding, meaning they reflect the testator’s wishes or preferences but do not impose a legal obligation on the executor or beneficiaries. These non-binding clauses are often included to provide guidance to the executor of the estate, to convey personal messages to loved ones, or to suggest how to handle certain aspects of the deceased estate. This article explores the concept of non-binding clauses in wills in Victoria, their legal standing, common examples, and how they interact with the binding provisions of a will. It also offers practical advice on drafting effective non-binding clauses to ensure they achieve their intended purpose.

Non-binding clauses in Victorian wills

In Victoria, the Wills Act 1997 provides the legal framework for wills. This Act specifies the formal requirements for creating a valid will and outlines the rules for interpreting and enforcing its provisions. Non-binding clauses are not explicitly addressed in this Act but are recognised under common law principles as non-enforceable expressions of the testator’s wishes.

Non-binding clauses do not have the force of law. Unlike binding clauses, which the executor must follow and are legally enforceable, non-binding clauses are merely the expressions of the testator’s preferences. Executors and beneficiaries have no obligation to follow these preferences, though they may choose to do out of respect or practicality. The key characteristics of non-binding clauses are that they:

• do not impose legal obligations on the executor or beneficiaries;
• provide guidance or express personal values, preferences, or wishes; and
• cannot override binding provisions in the will or conflict with applicable laws.

Courts in Victoria generally treat non-binding clauses as precatory statements. This means they are considered expressions of hope, desire, or intention rather than mandatory directives. For example, the phrase “I give my engagement ring to my granddaughter” is a binding clause, however, an additional phrase saying “I wish her to pass this ring down to future generations” is non-binding on the beneficiary.

In fact, non-binding clauses can cover a wide range of topics, including the testator’s values, funeral preferences, or recommendations for handling certain assets.

Common examples

The following are some common examples.

Funeral and burial instructions

Many wills include non-binding clauses outlining the testator’s preferences for their funeral, burial, or cremation. For instance, a testator might express a wish to be cremated and have their ashes scattered at sea, or for a small, private funeral with only close family and friends. However, it is not the testator or even the family who chooses the funeral arrangements. Under Victorian law, the executor has complete control over the funeral, and can make any arrangements they think appropriate, using funds from the estate. Of course, in practice, the executor will most often follow the testator’s wishes as they are expressed in their will, even though such clauses are not legally binding.

Guardian preferences

Parents often include clauses in their wills to express their preference for who should care for their minor children if they die. Although this clause provides important insight into the parent’s preferences, the Family Division of the Children’s Court makes all final decision on guardianship in Victoria, focusing on the best interests of the child. As such, these clauses are non-binding.

Recommendations for the use of property

Non-binding clauses may suggest how beneficiaries should use or handle assets, such as:

• “I leave my holiday home to my eldest son, but request that it continue to be used freely by all of my children and grandchildren.”
• “I wish that my family use my bequeathed funds to establish a scholarship in my name.”

In both examples above, there are legal mechanism that a testator could use to create the desired outcome through binding clauses. As the clauses are currently drafted, they are expressions of wishes only, and the executor or beneficiaries are free to disregard them.

Charitable or philanthropic wishes

Testators can leave binding bequests to charity in their will, or choose instead to include non-binding recommendations for charitable donations or philanthropic activities. For example:

• “I would like my beneficiaries to donate a portion of their inheritance to a charity to benefit animals.”

Benefits

Non-binding clauses serve several important purposes, even though they are not legally enforceable. They provide valuable guidance to executors and beneficiaries, helping them understand the testator’s preferences and values. This can be particularly useful in situations where the will leaves room for discretion, such as in the management of a discretionary trust. By expressing certain wishes in a non-binding manner, testators have greater flexibility in their wording. This can be beneficial if circumstances change after a testator’s death, because of fluctuating financial markets or changing family dynamics.

Non-binding clauses also give testators an opportunity to convey their personal values, beliefs, or philosophies to their loved ones. These statements can provide emotional comfort and a sense of connection after the passing of the loved one. In some cases, non-binding clauses may encourage beneficiaries to collaborate and reach mutually acceptable decisions. For instance, a clause suggesting how shared assets might be used can help prevent disputes among beneficiaries.

Limitations

While non-binding clauses can be useful, they have obvious limitations. The primary limitation of non-binding clauses is their lack of legal enforceability. Executors and beneficiaries are not obligated to comply with these clauses, which may lead to the testator’s wishes being ignored. Additionally, ambiguously worded non-binding clauses can cause confusion or disputes among beneficiaries.

Drafting non-binding clauses effectively

To ensure non-binding clauses achieve their intended purpose, testators should be specific in their wording, avoiding vague and ambiguous language. The clause should clearly state the testator’s preferences and, where applicable, the reasons behind the testator’s wishes. For particularly detailed or sensitive non-binding preferences, testators might consider writing a separate letter of wishes. A testator can more when altering a will.

The most important step when drafting effective non-binding clauses in a will is to consult an experienced wills and estates lawyer. A lawyer can help ensure that the clauses align with the overall structure of the will and do not create unintended consequences. Contact Go To Court Lawyers on 1300 636 846 for any advice on drafting a will.