A letter of wishes is a document that is prepared to accompany your will.
The purpose of the letter of wishes is to provide context and reasoning for the terms of your will.
The letter of wishes can also act as a very helpful tool to assist your executors in exercising their discretion, for example, in relation to how to distribute your chattels.
There are several benefits to having a letter of wishes in place alongside your will:
- Privacy – letters of wishes are private documents that your executors will hold. They do not become public when the grant of probate has been obtained by your executors, unlike the will itself.
- Formality – you do not need to adhere to the terms of the Wills Act 1837 to create a letter of wishes. It does not need to be witnessed, and therefore it is generally easier to prepare.
- Certainty – they act as a helpful tool for your executors in dealing with sentimental or nominal value items that would be too onerous to include in your will, for example, your letter of wishes might set out how you want your household contents to be distributed.
- Trustee discretion - If your will creates a discretionary trust that enables the trustees to make decisions as to how the beneficiaries benefit under your will, the letter of wishes can assist the trustees with understanding how you want them to exercise that discretion, although the letter of wishes is not binding on the trustees.
- Mitigate risk of dispute – you can use the letter of wishes as an opportunity to explain your decision-making and provide context to those decisions to justify your reasoning and, ultimately, make your trustees and surrounding family and friends aware. If your estate was disputed, then your letter of wishes could also assist judges in deciding on any claims made.
Disputed estates
Letters of wishes do not bind the executors to adhere to its terms, but trustees will often consider the testator's wishes when concluding how they ought to exercise their discretion.
Contentious probate disputes often arise when trustees need to exercise their discretion in complex, usually larger estates with several beneficiaries who may have competing needs. For example, there could be a surviving spouse who needs provision, alongside a child with disabilities who requires financial support. Trustees may come under scrutiny if a balanced approach is not taken.
The letter of wishes can be incredibly useful in those circumstances, as it serves as a guide to what the testator had in mind when establishing the discretionary trust, thereby reducing the risk of disputes arising or assisting in resolving them.
Similarly, if the trustees unreasonably departed from the terms of the letter of wishes without good reason, then a disappointed beneficiary might use the letter of wishes in support of any claims against the trustees.
The letter of wishes also has relevance to claims under the Inheritance (Provision for Family and Dependants) Act 1975. The letter of wishes can help resolve these claims if, for example, it confirms that a particular person was not reliant upon the deceased, or alternatively, it may shed light on why someone was not left any inheritance.
Summary
The letter of wishes is a document prepared in support of a will. They typically provide useful guidance to the executors and trustees appointed in the will on how the testator intended their estate to be administered. They allow the testator freedom to justify the terms of their will and provide further details on smaller, sentimental matters as required. Letters of wishes are not, however, binding, and care should be taken not to contradict the terms of the will.
No, the letter of wishes does not need to be witnessed. To assist your trustees, it would be prudent to sign and date the document so that the trustees understand your views at a particular point in time.
Yes, we recommend that you keep your letter of wishes (and your will) updated so that it remains relevant to your wishes at any given time.
The letter of wishes could include your reasons as to why you have left your will on particular terms, including for example, why you may have left someone out of your will. You could also include how you wish your household items to be distributed, or provide insight as to your preferred funeral arrangements. Finally, if your will establishes a discretionary trust, you may wish to set out how you wish those trustees to exercise that discretion.
No. If the terms of your will differ from the letter of wishes, the terms of the will prevail as the letter of wishes is not binding on the trustees.
The letter of wishes is a private document and would not be disclosed as part of the usual course of administering an estate, unlike the will, which becomes public after probate is granted. That said, trustees will often disclose the letter of wishes if they think doing so will assist the beneficiaries with understanding any decisions made by the trustees.
Yes. By informing your loved ones of your reasoning for leaving your estate in a particular way, it can often act as a tool to reduce the likelihood of a claim being made against your estate. If there was a claim in your estate, the letter of wishes acts as crucial evidence for a court to consider as part of any claim, as it shows your views at any given period of time.
This information is for guidance purposes only and does not constitute legal advice. We recommend you seek legal advice before acting on any information given.
