Occasionally, an executor will find an envelope with the Will. What may be inside is what is often referred to as a “Letter of Wishes” (other names include “Memorandum to the Trustee” or “Memorandum to a Will”). Inside are the thoughts of the testator – on almost any matter – that have been written as a guide for the executor.
There are two types of these Letters of Wishes: one that is actually incorporated by reference into the Will – the document (letter) must already exist at the time the Will is signed and must also be clearly identifiable; or one that has been left with the Will, previously sent to the executor, or has to be searched for.
The first type (incorporated into the Will) forms part of the Will itself and, as such, the instructions are legally binding upon the executor. It cannot be changed without going through the same formal process needed to amend a Will.
The second type (stand-alone letter) while not legally binding on the executor should be thought of as being morally-binding. This non-binding Letter of Wishes can be changed at any time for any reason without any formality and, because it is not part of the Will itself – it is a private document between the testator and the executor.
The instructions in a Letter of Wishes can cover many topics:
Funeral/burial/memorial wishes – Although actually the responsibility of the executor these arrangements are often made by the family. If, however, the deceased had specific wishes or believed that the family would not honour them, a Letter of Wishes can outline what was wanted by the deceased. This can be particularly useful regarding religious or spiritual matters particularly if there is a possible conflict of ideas.
Reasons for including or not including – Beneficiaries (expectant or unexpected) may be surprised by what may or may not have been left to them. The executor can explain quietly and privately the reason or reasons in the testator’s own words.
Instructions for the distribution of sentimental items or other assets – Our “stuff” is ever changing. We often buy and discard on a regular basis. If a list of belongings were incorporated into a Will – either in the body itself or by reference to an asset list – not only could it take pages to name every item and beneficiary but any change to the list would have to be formally executed. The advantage of a non-binding Letter of Wishes outlining who should get what is that it can easily be updated or changed in any manner at any time.
Wills are formally written using specific legal language whereas a Letter of Wishes is written in plain English (or any other language). A personal message to your family or beneficiaries can also be included in a Letter of Wishes although talking to your loved ones during your lifetime is best. As with the Will itself, a Letter of Wishes should be reviewed on a regular basis to ensure that it is up-to-date.