Why Write a Letter of Wishes?
When writing a will, you must be clear regarding who should be appointed as executors, trustees, or guardians and how your estate should be distributed in a binding fashion. But what about your more general wishes for your estate or your children? A Letter of wishes (LOW) is a handy document you can prepare in addition to your Will to provide extra guidance.
Wills and LOWs must be written clearly, without contradiction, jargon, or defamation. They should support a Will or Power Of Attorney but can not supersede these legal documents.
There are so many uses for a LOW that we can’t list them all in one article, so we’ll focus on the most common uses for them:
1. Give your guardians some guidance
You’ve probably considered who you would want to care for your children if you died while they were still minors, and you’ve probably appointed these people as guardians in your Will. In your LOW, you can express exactly how you would prefer your children to be raised and how you wish the guardians to support them. Details can include preferences for their upbringing, education, discipline, religion, likes & dislikes, allergies and personal belongings. It could include temporary guardianship or requests for other friends and family to assist the primary guardian.
2. Make your funeral wishes clear
A LOW could include your preferences for burial or cremation and what kind of ceremony you want. You could even include everything down to what music should be played, what readings should be read, and what kind of flowers should be displayed. It is important that you make your funeral wishes known to your family and include them in a LOW. This avoids the funeral being carried out before your wishes are found.
3. Give instructions to trustees
If you have included any trusts in your will that give your trustees broad powers over how the trust is distributed, known as ‘discretionary trusts’, a letter of wishes is recommended. Under these types of trusts, it is up to the trustees to manage the funds and which of the named potential beneficiaries they benefit.
In a LOW, you can include your wishes for how you want the trustees to use their powers; for example, if the trust could benefit your spouse and children, you could request that the trustees treat your spouse as the primary beneficiary for the rest of their life. You may also insert a statement that any beneficiary who attempts to obstruct or force the sale of the property against the wishes of the life tenant will forfeit their right to benefit.
You may wish to request that beneficiaries receive additional support from a trust if they are pursuing higher education, starting a business, or getting married.
What you write in a LOW isn’t legally binding; it is just guidance. The trustees should consider it when managing the trust, and professional trustees will try to stick to your wishes wherever possible.
4. Distribute small personal items
You are likely to have lots of personal chattels. These are defined as ‘tangible movable property’ except money and items held as an investment or mainly for business purposes. It’s quite a broad definition that could include household ornaments, jewellery, furniture and cars. Suppose you have many personal items to gift to specific people. In that case, the easiest way to do this is by including a clause in your will that gifts all items fitting that definition to your executors with a wish that they distribute them following your LOW. Once this clause is included, you can write a separate LOW to list the items you want to gift and to whom. This is a very flexible way of dealing with your items. If you change your mind, you can write a new LOW without making a new Will.
5. Exclude someone
If you have chosen to exclude someone from benefitting from your will, we will advise you on what to include in your Will and what consequences the exclusion could have for your estate. We advise you to write a LOW to detail your reasons for the exclusion, as the court may consider this if the excluded person did try to bring a claim against your estate. The letter is sometimes called an ‘exclusion letter’ in these circumstances. LOWs aren’t legally binding but help ensure you get your less formal estate wishes across.
6. Confidentiality
A Will becomes a public document if a grant of representation is obtained. However, a LOW remains confidential to the executors, trustees, or intended family members. Therefore, it tends to contain more detail. Ultimately, a court can decide which document should be disclosed and to whom. In circumstances where complete confidentiality is required, Fern Wills can make notes based on privileged telephone conversations or meetings which are more challenging to subpoena (Witness summons)
You may also insert a clause into the Will saying that Trustees can use their discretion to allow beneficiaries to see the contents of the Will.
7. Examples of entries to a Letter Of Wishes
Who and who not to tell of your death?
Your Funeral wishes regarding cremation or burial, specific instructions such as dress code, religious or secular, music, speeches, what to do with ashes, etc.
Guidance to executors/ trustees regarding how and when assets and money should be managed and distributed.
Distribution of lower-value items such as jewellery, furniture, collectables, photographs, and Medals. High-value items should be specifically mentioned in your Will.
Guidance for guardians, including religion, education, and where they live, and encouraging contact with family.
The LOW can clarify anything in the Will that might be controversial or likely to be challenged. It can explain rationales for why a distribution was unequal or why someone had been excluded.
Statements regarding restricting assets of the Life Interest (Main beneficiary) to reduce Inheritance Tax Burdens. For example, I would like trustees to use the funds primarily for my husband, John. However, suppose he has sufficient income and capital for now and the foreseeable future. In that case, my trustees should consider advancing assets to the other beneficiaries if appropriate and tax-efficient.
8. Storage & Security
Your LOW mustn't be misplaced or confused with an earlier version. Therefore, the latest copy should be stored securely with your Will and a clearly marked copy available for your executors.
9. Business and investments
Guidance can be given regarding operating, managing and selling a business. Equally, guidance and explanation regarding investment strategies can mitigate the dilemma faced by trustees/ executors.
10. Length & Longevity
The advantage of a LOW is that it can be as brief or detailed as you wish. It is also straightforward to update, which should be well structured, personal and easy for the reader to understand.
Case Study: Ex-wife vs New Fiancé
Blyth v Estate of Charles Caudle (2019)
After divorcing in 2007, Mr. Caudle got engaged to Ms. Blyth, who moved into his multi-million pound home. Due to friction between Ms. Blyth's children and Mr. Caudle's son, she moved into a £300k bungalow owned by Mr. Caudle.
Mr. Caudle passed away before marrying Ms. Blyth. In his will, he left everything to his son and did not make any provision for Ms Blyth to continue living in the bungalow. Ms Blyth claimed that Mr Caudle had promised her she would always have a "roof over her head."
The executor, Mr Caudle's ex-wife, filed legal action for trespass against Ms Blyth. The court found no evidence of a MOW and ruled against her. As a result, Ms Blyth lost her home (the £300k bungalow), £80k in court costs, and any claim on the multi-million-pound estate. If Mr Caudle had undergone a free will review and, for less than £100, obtained a professionally produced LOW with storage, the outcome could have been very different.
Case Study: Excluding Unpleasant children
Barnaby v Johnson (2019)
Mrs Bascoe's Will left £10k to each of her four children. She then updated her Will following a strained relationship with two of the daughters, citing them as "Rude, unpleasant and sometimes violent" towards her. She reduced their inheritance to a token £100 & £500, with the rest left to one of her sons, who was named executor.
At age 96, Mrs. Bascoe died. The two daughters challenged the Will on grounds of lack of Mental capacity, undue influence, and forgery.
Because the Will was professionally drafted, the Will Writer attested to the Mental Capacity, the validity of signatures, and no undue pressure. He had also prepared a LOW, explaining the disproportionate amounts. The Will was deemed valid, and Mrs Bascoe's wishes were carried out as intended.
If you need further advice on how a letter of wishes can support your Will, contact us. We will happily explain more without obligation over a 5-15 minute chat.
