What are Letters of Wishes and Statements?
Letters of wishes or Statements are used as a supplement to the Will to expand on certain clauses. They are in no way legally binding, they merely sit alongside the Will as a guide. The documents act as a summary or explanation of the Will itself, giving further information to the executors as to how the estate is to be distributed, and reasons why certain provisions in the Will have been included. As previously stated, letters of wishes or statements are not legally binding. However, it is generally accepted the wishes are followed by the executor/s unless they are unable to be performed, or require the executor/trustee to use their discretion. For example trustees will use their discretion in complex trusts, as the Testator (person whose Will it is) cannot provide information for every possibility. This is why choosing the right executor is essential when drafting your Will.
The use of these documents help the Will to not be overly complex and allows for a familiar tone, avoiding legal jargon. Some examples of what can be included in a letter of wishes can range from, the testator providing information as to which beneficiary receives certain personal possessions, to instructions for guardians on how the children are to be raised, from religious beliefs, to what type of school they attend. These details are not necessary in the Will itself as the Will relates to facts and the law behind it. For example, the Will can note the names and addresses of guardians but it would not be necessary to comment on the child/children's upbringing. This is why many people choose to add a letter of wishes, to provide the executors with further information.
Statements are particularly useful if there is a family feud. A statement can detail why a certain member of a family is receiving less or more than another member. It can provide clarification to the executors and help them to action the Will with confidence knowing the reasons behind testator's wishes. A statement can help to assist the defence of a claim made by an aggrieved party to the Will, by providing reasoning and clarification behind the decisions made by the testator.
Letters of wishes and statements can be changed at any time and as many times as the testator deems appropriate. For example personal possessions may be accumulated over the years and whom to leave them to may alter with the growth of the family, like grandchildren and great-grandchildren. Letters of wishes and statements do not have to be completed at the same time as the Will. However, it is good practice to do so in case they are forgotten about. There is no formal signing of the wishes or statement whereby witnesses are required but it is important that the testator signs and dates the document for completeness.
There is no requirement that family members need to be notified of the letter of wishes or statement, but we do advise that the executors know there are accompanying documents to the Will and where to find them.
If you feel that a letter of wishes or statement will be beneficial to you, Chattertons are able to draft these for a small fee, please contact your local Chattertons branch for more information.
If you need legal advice in relation to Wills and Estate Planning, please contact our specialist Wills, Trusts & Probate team at Chattertons.