Wishing my Will would do the right thing

So, you have decided that it is time to prepare your Will. However, there are still many life events that could arise which could lead to you needing to change your Will after it has been prepared.

With there being cost implications of having to revisit your Will whenever you need to change a provision, you might want to consider preparing your Will with flexibility. This is where it may be recommended that you incorporate a Discretionary Trust in your Will where you name all the people you may wish to benefit from your estate. Furthermore, you can include a provision to add beneficiaries to the class by a Trustee process which will mean you do not need to update your Will again.

A Will drafted this way does not say who should receive what and when, and not one of those beneficiaries named has a specific interest. A beneficiary will receive what the Trustees of your Will decide they can have and when. The Trustees, of which there may be four, can be any member of your family, a professional Trustee, or a combination of both.  What will help the Trustees reach decisions on how your estate should pass will be your letter of wishes.

What is a Letter of Wishes?

A letter of wishes is a non-legally binding document that you prepare in advance of your death to be read alongside your Will. This will be prepared at the time your Will is signed and whenever you need to update your wishes, you may do so any time afterward. Its purpose is to provide guidance to your Trustees on how you would like specific matters to be dealt with. You can update these wishes at anytime and provide us with a new version to replace the one currently held.

They may be used to provide guidance on how your possessions should be divided between family members, how your estate should pass, or even who may be favoured or ignored, and for what reasons. The Will itself is not an appropriate place to set out reasoning for why your estate is being left a certain way.

Although your wishes are not legally binding, case law has shown that they have a strong influence on the Court if a dispute ever arose. To reduce the risk of Trustees not carrying out your wishes, you should give significant consideration as to who the Trustee should be, which should give reassurance to you that your wishes will be met.

Should I consider a Letter of Wishes?

Yes. Letters of wishes can be very helpful in ensuring that your estate passes as you intend.

Trying to provide for multiple beneficiaries in your Will can be difficult, especially when their individual life circumstances are prone to change. Families these days can be more complicated than they used to be with second marriages, cohabitation and step-children, which only compounds this difficulty.

It will provide guidance to you Trustees in managing the estate that a Will cannot, giving meaning and thinking behind the way in which the estate should pass. It can make sure that unknown eventualities can be considered, some examples of which are set out below:

• Not distributing funds to a child who may be having matrimonial issues, or any other issue that may put at jeopardy their inheritance.
• Allow your Trustees to take advice at the time of your death to ensure that your estate passes in the most Inheritance Tax efficient way, reflective of legislation at that time;
• Granting rights to allow a beneficiary to remain in the property you own but allowing the Trustees to sell the property if another beneficiary ends up experiencing financial difficulties and is in need of funds.

A letter of wishes does not have to be so comprehensive as to address every possible scenario, but they should be concise and provide guidance.  It is also helpful to give the reason for a specific direction. Although taking legal advice is not essential in drafting a letter of wishes, it can help to avoid potential pitfalls that might otherwise arise.

Here to Help

If you would like advice about Letters of Wishes or Wills then please contact Bernard Flanagan, Associate Solicitor specialising in Wills, Trusts, Probate and Powers of Attorney.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.