A properly executed Will is a binding legal document which sets out how you want your estate (everything you own) to be dealt with and passed on after your death. The people you appoint as Executors have the task of following your instructions in the Will and ensuring that its provisions are complied with.
However there are times when a testator (the person making the Will), might want to leave some guidance or information for their Executors, or they may want to pass on other directions which they do not want to be included in the Will itself. These could be contained in a Letter of Wishes.
A Letter of Wishes would then be stored with the Will – the most important thing to remember though is that while Letters of Wishes can be very helpful, their contents are not legally binding in the same way that the terms of a Will are. They will be used for guidance and information purposes only. This does however also show one of the benefits of a Letter of Wishes: when your Executors apply for a Grant of Probate, your Will then becomes a public document. As a Letter of Wishes is not part of the formal Will, it will never become public and can remain confidential to your Executors or to whomever it is addressed.
It can also be changed and reviewed more easily as there is no requirement for it to be witnessed, just signed and dated. In fact, it must not be witnessed otherwise there may be confusion as to whether it was supposed to be part of the Will itself.
Finally, since the Letter is not legally binding, the language used can be more informal. It can be used to help the testator explain their reasons for dividing an estate the way they have, because at the time the Will is read, the testator will not be around to give that explanation themselves.
So, when might a Letter of Wishes be useful? Here are some of the situations we commonly use them:
1. It can be used to give information on the allocation of your personal possessions. As long as you have an appropriate clause in your Will giving the Executors flexibility over the distribution of those assets, a Letter of Wishes can explain how you would like this done. This information is an example of something which may change frequently over time, so using a Letter of Wishes rather than putting the information into the Will is far more manageable.
2. You may have provisions in your Will giving the Executors (and/or Trustees) discretion over how to manage capital and income of an asset. A Letter of Wishes can explain how you would like any trustees in your Will to exercise that discretion. You could explain what sort of assets you might like them to invest in, or when and how money should be released to beneficiaries. You may have provisions in your Will giving the Executors (and/or Trustees) discretion over how to manage capital and income of an asset, or a trust set up in the Will.
3. If you have young children and have appointed Guardians in your Will, you can use a Letter of Wishes to include details about your children’s future, explaining how you would like funds to be used for your young children and/or how you would like them to be brought up, for instance in relation to their education or religion.
4. If you have divided assets in different shares between different beneficiaries, you may wish to use a Letter of Wishes to explain your reasoning for this and how you have calculated the division. This may help your family understand what might on the face of it appear to be ‘unfair’ to some members.
5. If you have completely omitted a potential beneficiary from your Will, then a Letter of Wishes is essential for explaining your reasons for that and also why you have chosen other beneficiaries instead of them. It may not stop a claim by a disgruntled beneficiary, but it will show you considered them and your reasons for then not including them, which can be important evidence.
6. You may include specific funeral wishes, such as instructions for your funeral service. If you have particular wishes, these can be too lengthy for the Will itself, or subject to frequent change. As funeral information in a Will are only directions and guidance in any case, it is very useful to use a Letter of Wishes to contain the specific detail.
7. Finally, if you have pets you wish to be cared for in a particular way, or you want to provide information about their background, medication or vets, a Letter of Wishes is an ideal way to pass on that information to the people you have nominated to look after them.
Any Letters of Wishes should be stored along with your Will, but not attached to it as this risks invalidating the Will. You do not want it to become separated from the Will because this could result in your Executors and/or Trustees being unaware of your wishes, and therefore, your wishes may not be followed.
It is very important to remember though that a Letter of Wishes is not your Will and cannot replace your Will. It should work alongside it as a supplement to your instructions in your Will and you should be careful that it does not contradict anything in the Will.
While you can prepare your own Letter of Wishes to ensure your voice is heard after your death, it is vital to take legal advice to ensure it is suitable for your purposes.
For more information please contact Kathryn Caple on 01283 526200 or email Kathryn.caple@elselaw.co.uk.