Letters of wishes can be very helpful to Executors and Trustees to give them guidance on what someone wanted when they created a trust either directly or by way of their Will.
However, recent cases have also shown that they can have a strong influence in Court, and not always a positive one from a Testators point of view.
A letter or memorandum of wishes usually accompanies a will or trust deed. It is meant to provide guidance on all sorts of areas such as how a discretionary fund should be used, for what purposes and even who may be favoured or ignored and for what reasons.
However, within it there are as always dangers for trustees. For example, if someone is ignored due to wishes expressed they could seek some redress through the Courts on the basis that the Trust us not being managed or funds distributed properly. Essentially they could claim too much weight is given to a document which is a guide only, it does not create an obligation a trustee or trustees.
Also, where testamentary wishes are challenged, a letter can help or hinder a claim. In the recent case of Ilot v Mitson (2015) the Letter of wishes although making it clear why a mother had ignored here daughter entirely in her Will and duly considered by the Court, the decision still went firmly against the testator’s wishes. However, in the matter of Re The Estate of Elizabeth Jane Walker (Deceased)  All ER (D) 258 (Nov) the Letter of wishes was judged by the Court to provide evidence of Mrs Walker’s testamentary capacity and so the wishes in her Will were honoured. This left her 2 adult daughters to inherit considerably less than expected and on terms which meant they were unlikely to truly benefit.
Should you therefore have a letter of wishes?
In most cases the answer to that is yes. The caution to be taken is not in deciding whether to have one but is in the drafting. It is essential that the letter reflects the terms of the trust deed or will and there are no contradictions. Also, it must reflect the person creating the trust’s wishes. If the 2 therefore don’t match then one of them has to be wrong in any event. Secondly, they do not have to be so comprehensive as to address every conceivable scenario. As they are only wishes, they should be succinct and provide guidance and not necessarily direction. Where relevant, they should also contain the rational behind a specific decision. of course in the case of Ilot, this did not help the testator. However, with the advice of an experienced and qualified lawyer, some of the potential pitfalls can be avoided.
If you require any information on Wills, charitable gifts, estate planning or dealing with an estate including charitable provisions please contact me. I am an Associate in our Private Client team with experience in this area and I will be more than happy to assist you.
Image by Howard Lake under a Creative Commons Licence