A Letter of Wishes is a private and confidential document, which can be drafted to be kept with a Will. A Will is legally binding, whereas the contents of a letter of wishes are not. However, a Letter of Wishes can still be useful in certain circumstances.
One example is when considering who should inherit any household items or personal items, for example, furniture, ornaments, books or jewellery. Although some of these items may have substantial value.
More often than not it is the sentimental attachment to them, which leads people to list each item separately in the Will, confirming the full details of the person to inherit them. The Will can then become lengthy and more cumbersome than intended.
A way around this would be to pick a trusted individual and name him or her in the Will to receive the specific items with a wish that he or she should distribute them in accordance with a separate letter of wishes. The letter is then stored with the Will. This way, if there is a later change of heart about who should inherit a specific item or items are to be removed or added, it can be done without having to alter the Will.
However, the potential problems with this are:-
The person named to receive the items is under no legal obligation to distribute them in accordance with the letter. They are nothing more than mere wishes. He or she could keep the items;
The person named to receive the items could pass away first or not have the required capacity to carry out the wishes;
As the letter of wishes is not part of the Will there is always the concern that the letter could be separated from the Will or lost.
More than one individual could be named to lessen the chance of no-one being alive or capable to carry out the wishes or another option would be to name the Executors and Trustees (“Trustees”) already appointed in the Will to accept the items.
Naming Trustees in this professional capacity also carries a risk. The person or persons who are named in the Will to inherit the bulk of your estate (“residuary beneficiaries”) could claim these items as belonging to them and not the individuals named in the letter. This is because the Trustees are under no legal obligation to follow the letter of wishes but they do have to answer to the residuary beneficiaries.
So as to prevent this from happening, Trustees could be named to receive the items personally and not in their professional capacity. However, this takes us back to the first potential problem; the Trustees could keep the items for themselves.
It is therefore not advisable to consider these options when the items are of substantial value or absolute certainty is wanted as to who will inherit the items but can be very useful to dispose of everyday belongings.
It is a good investment to obtain sound Estate Planning advice.
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