Can you challenge a letter of wishes?

Letters of wishes are designed to explain why a testator has made certain decisions, and, where appropriate, guide executors and trustees in carrying out their roles as administrators of an estate.

Letters of wishes are more common where a testator leaves part of their estate in a discretionary trust, as they often explain how they would like decisions to be made after death, including who should be treated as the main objects of the trust, when funds might be advanced, and what personal or family circumstances should be taken into account. 

Unlike a will, letters of wishes are not legally binding. In a discretionary trust, the appointed trustees should consider those wishes as an important and relevant factor.

However, they must still exercise their own independent judgment within the powers conferred in the will of the testator. By way of example, the will might list a defined class of beneficiaries, in which no individual has an automatic right to a particular share. The discretionary trust gives the trustees the flexibility to decide who, from that class, should inherit, and the letter of wishes is a useful tool to guide those trustees.  

In practice, trustees will often wish to respect the testator’s views and follow their exact direction, especially where the letter explains the background to the will or the reasons for treating beneficiaries differently. 

Letters of wishes are generally private to the executors or trustees and do not become public upon obtaining a grant of probate, as a will does.

The privacy of the letter of wishes can be a point of contention, as often potential beneficiaries will naturally wish to understand the extent of their interest. It is therefore a decision for the trustees as to whether, in all the circumstances, it is appropriate to disclose the letter of wishes to act transparently and to seek to avoid dispute if, for example, a decision of the trustees were challenged.  

If a potential beneficiary does not receive what they were expecting, they cannot bring a claim to set aside or otherwise challenge the validity of the letter of wishes because the letter of wishes does not, of itself, carry any weight in terms of its enforceability. The disappointed beneficiary might instead seek to challenge the terms of the will itself, whether by an Inheritance Act claim or a will challenge as may be appropriate. 

Alternatively, the disappointed beneficiary might have a claim against the trustees themselves in certain circumstances. However, the court will rarely fetter the discretion of trustees, and the terms of the will often provide protections for trustees, such as limitations on personal liability. 

If you are a trustee and you are engaged in a dispute relating to the exercise of your discretion, it may be helpful to disclose the relevant information to the disappointed beneficiary, such as the will, the letter of wishes, and any trustee minutes, to demonstrate how a particular decision has been made. It might also be helpful to obtain independent legal advice from a suitably qualified professional and invite the opinions of the beneficiaries before making a particular decision to limit the chances of a dispute arising. If, despite having exercised reasonable communication with the beneficiaries, there remains a dispute over your decision-making, you could explore means of alternative dispute resolution, such as mediation. If that fails, it would be possible to apply for a blessing order, in which the court would approve a particular decision and provide the trustees with protection for that decision. 

In short, a letter of wishes is often influential in the decision making of trustees, but it is not legally binding. Contentious probate disputes can arise when a disappointed beneficiary wishes to challenge a trustee's decision-making, but these can be limited by communicating effectively, obtaining advice, disclosing information and documentation where appropriate, and attempting alternative dispute resolution.