The significance of letters of wishes

Letters of wishes (LoWs) are commonly used in private client legal practice, usually in conjunction with Wills or trusts. They are useful for providing a full picture of the author’s wishes and can cover topics ranging from how a testator would like their minor children to be brought up, to how the settlor hopes that a discretionary trust will be administered. LoWs are inherently flexible and can be easily updated as circumstances change. The fact that they do not become a public document after the testator’s death (unlike a Will) can also be advantageous ensuring that privacy is retained for sensitive information.

The legal effect of LoWs

The legal effect of a letter of wishes has been considered by the High Court. The case in question concerned a three page homemade Will accompanied by a two page LoW. The Will provided that the residue of the estate was to pass to a new charity for the benefit of persons with severe facial disfigurements. The LoW, however, expressed the wish that the deceased’s friend might receive a legacy of £95,000 from the charity funds (provided there were sufficient) if she were widowed or divorced (subject to certain conditions).

The estate became contested and a number of issues were brought before the court including the question of whether the LoW was incorporated into the Will and, if so, whether its provisions were legally binding.

If the LoW was not incorporated it could not be a legally binding testamentary document and would have moral force only on the executors. In order to be incorporated the LoW had to satisfy three conditions:

1. It must be in existence at the time the Will was signed
2. It must be referred to in the Will as existing
3. It must be described in a way which makes it clear that it is the document referred to in the Will

The judge decided that in this case the LoW was pre-existing, as it had the same date as the Will, the deceased referred to “the Letter of Wishes” in the Will, described it as an attachment to the Will and the LoW itself was entitled “Attachment to my Will dated 17/3/2013”. The judge concluded that the LoW was incorporated, but on further construction of its language, it was not legally enforceable.

Does this case affect LoWs made in conjunction with Wills?

The case provides a useful summary of the conditions that have to be fulfilled before a LoW can be incorporated in a Will but it will not affect how LoWs are generally used. In many cases the LoW is not referred to in the Will at all and therefore does not meet the second of the above conditions for incorporation.

One of the most common uses of a LoW is in connection with the distribution of personal effects when the executors are directed to a LoW stating how they should be divided. The drafting of this clause usually makes it clear that the LoW may be a future document which is not yet necessarily in existence, and that the gift is not intended to create any kind of legally binding obligation. Such LoWs remain as documents conferring moral obligations on their addressees only and the inherent advantages of LoWs as outlined above remain.