Turns out, a Will is not the only document where you can lay out specifics surrounding the ways in which you’d like your assets distributed. A Letter of Wishes - also known as a ‘Statement’ or ‘Memorandum’ of Wishes - can also act as an expression, or summary, of your wishes after death. It can also give context to your legal Will, which can be super helpful in assisting your executor(s) in understanding everything that’s outlined in your Will.
Typically, a Letter of Wishes is written in plain and simple language. It doesn’t form part of the probate of a Will, is entirely confidential, and doesn’t need to be filed with the court or shared with any of your beneficiaries. Put simply, it really just exists to make your Will easier to understand.
Here are some reasons for preparing a Letter of Wishes.
It can guide the executor in exercising their discretionary power
Your Letter of Wishes can cover a broad range of items relating to how your Will should be carried out. It might detail notes about you and your beneficiaries’ family circumstances, disclose any digital assets and passwords, or specify your organ donation preferences. It can also contain contact details of your trusted advisors and other parties to be notified of your death - or even, people (or parties) who shouldn’t be notified.
As well as the wishes themselves, your Letter can also help determine the scope of your executor or trustees’ discretionary power, and ensure they enact your choices, instructions and preferences after your death. With this in mind, it’s important to be specific in your language when describing the scope of your executor or trustee’s discretion. The non-binding nature of a Letter of Wishes means that those administering your estate can solely exercise their own discretion and are under no obligation to carry out your wishes after your death. However, the existence of the Letter means that it can be used as a guide on how to interpret the legally binding instructions in your Will, helping administrators to make decisions in the best interest of everyone involved.
It can explain certain distributions (or lack thereof)
In the same way the Letter of Wishes can provide more specific and detailed information about the distribution of your assets, it can also elaborate on why you have excluded someone in your Will from gaining benefit from your estate. You can choose to explain why someone has been left out of your Will or why you have left them a portion of your estate that they might personally consider inadequate (and this is often when deciphering a Will can get challenging and familial debates may arise).
If you’re worried about excluded family members heading to court over your Will (because they believe they are entitled to more they’ve been given), you can foreshadow this in your Letter of Wishes, and reaffirm the reasons why they’ve been excluded. This can then be taken into account by the judge to support the requests in your Will.
It can provide further detail of guardianship preferences
Decisions strictly relating to legal matters are reserved for the contents of your Will, such as, the appointment of a guardian for children under 18 years. You can then expand on your wishes in your Letter of Wishes, providing additional clarification to your executors. For example, you might like to include your wishes surrounding how your children should be brought up or which school you’d like them to attend.
It can illustrate wishes for funeral arrangements and burial
Where you want your ashes or remains spread or buried can come into your Letter of Wishes, as well as instructions on how you want your funeral to be arranged and expenses paid. You might also like to specify any songs you would like to be played during a service (and if you’d like some song recommendations, here’s a list of our favourites).
Important! It shouldn’t include anything that could conflict with your Will
Whilst a Letter of Wishes can be helpful in assisting your executor in understanding how exactly you want your estate administered, it is crucial that the letter doesn’t contradict or differ from your Will. A contradicting Will and Letter of Wishes creates risk of family provision claims and litigation (#drama), and so it’s essential that the distribution clauses in your Will and the wishes in your Letter align.
Not every desire or instruction of yours should necessarily be included in your legal Will. Creating a Letter of Wishes provides a guide for executors of your Will, and gives you some peace of mind that they will not exercise their discretion in a way that goes against your wishes and preferences.