Making a will is an important part of lifetime legal planning, but do you need to put all your wishes in your will? Where should you set out your wishes for gifts or your funeral arrangements? Is it appropriate to explain your decisions about your legacy? These are some of the questions which we are asked when people want to make a will for the first time, or if they wish to make provision for something out of the ordinary.
‘For your will to be legally binding, it must be worded using specific legal terminology which does not leave much scope for creativity or for your personality to shine through,’ says David Wells, a Partner in the Private Client team.
‘Alongside your will, you can write a letter of wishes in which you can express yourself in a more personal way. While such a letter is not legally binding, it does place a strong moral obligation for those involved in your will to follow your guidance.’
Uses for a letter of wishes
Gifts
One of the most common ways a letter of wishes is used is to leave small items, such as personal belongings, to certain beneficiaries without having to include specific gifts in your will. Provided your will references the separate letter of wishes, this is a perfectly acceptable and even a common way of leaving such items. Your chosen beneficiaries will not be legally entitled to the items, but your executors should ensure that they receive them unless there is a very good reason why your wishes cannot be honoured. Leaving gifts by way of a letter of wishes is often useful as it prevents complicated legal issues arising if the item is no longer in your possession when you die, or if your chosen beneficiary has already died.
Funeral wishes
Another popular use for a letter of wishes is to outline funeral wishes. A letter of wishes relating to your funeral can include preferences as to cremation or burial, instructions for your funeral service(s), or even who should be notified of your death and how they should be notified. You might, for example, have an idea of a specific announcement that you would like to be placed on certain social media platforms.
Trusts and children
If your will contains any trusts, or if you are appointing guardians for your children, your letter of wishes could be focused on providing guidance as to how you would like the trust to be managed, or specific ways you would like your children to be raised.
Explanations
As well as offering the opportunity to express your wishes in relation to certain circumstances or specific gifts, a letter of wishes can also be used to explain why you have chosen to structure your will in the way you have.
For example, if you have left a greater share of your estate to one of your children or a charity, a letter of wishes can enable you to explain the decision more fully which may prevent or reduce discord between the family after your death. It will also provide evidence of your views should a claim be made against your estate.
Benefits of a letter of wishes
As a letter of wishes does not have to be drafted in any particular legal language, you are free to set out your views and guidance in your own words. This means that you can feel more confident about the way your wishes have been expressed, as it leaves a more personalised message for your family to hear which is written in your voice. This can be a comfort both to you during your lifetime and to those you love when you have gone.
While the main consideration when making a will is that it covers all necessary provisions, the best wills are usually ones which are simple and straightforward. Creating a separate letter of wishes means that the will itself remains succinct and is less likely to result in complications when administering your estate.
If specific requirements are set out in a letter of wishes, this will sit alongside your will as an independent document. A letter of wishes can be changed as often as needed, without you having to review your will each time, saving you time and money.
Other considerations
Letters of wishes are just wishes, they are not legally binding on anyone involved in (or outside of) your will. If you want your wishes to be binding, they must be included directly within the terms of your will.
Whilst a letter of wishes offers a great deal of flexibility, it will not be suitable for all purposes. For example, if you wish to leave a valuable piece of artwork to a specific person, this is not a gift which is suitable for a letter of wishes and it must be included within your will. Equally, a letter of wishes cannot be used to allow your executors to decide who should be appointed as guardian for your children, this is a decision which you must make and which you will have to include as a specific term of your will.
Probably the biggest downside to a letter of wishes is that, because it is a distinct and separate document, it could get lost or become separated from your will. If this happens, your executors would be unaware of your wishes and these would, therefore, not be followed.
How we can help
A letter of wishes is a useful aid in ensuring that your voice can continue to be heard after you have died, however it is important to remember that it will not be legally binding, and it is equally important to understand when a letter of wishes is and is not appropriate.
As a general rule, anything that you would like to be absolute should be included within your will, however you also need to ensure that everything contained within your will is appropriate and has a solid legal grounding. You should seek advice from one of our solicitors before making any will and before writing a letter of wishes to ensure that it is suitable for your purposes and that you understand the legal, and any other, implications.
Our solicitors can advise you on wills and letters of wishes, as well as drafting the documents for you to ensure that all your requests are clear and legally binding.
For further information, please contact David Wells in the Private Client team on 01484 435 543 or email david.wells@baileysmailes.co.uk . Bailey Smailes has offices in Huddersfield and Holmfirth, West Yorkshire.
