November 13, 2017Is your Letter of Wishes effective?

Letter of wishes

Some people choose to make a Letter of Wishes (or Statement of Wishes) to accompany their Will. A Letter of Wishes can deal with matters such as:

  • Explaining why certain family members have not been included as beneficiaries in your Will (but see below on this point).
  • Explaining why unexpected beneficiaries have been included in your Will.
  • Providing a particular beneficiary with instructions on what to do with an asset (although keep in mind that the letter is not binding – it may be better to leave the asset in trust if it is crucial that your instructions are followed).
  • Providing guidance on how any funds held in a discretionary trust are to be used.
  • Leaving instructions for the guardians of minor children as to their upbringing, such as religion, education and residence.
  • Providing instructions as to funeral arrangements – such as burial or cremation, types of ceremony, music to be played etc.
  • Dictating how particular small/low value personal possessions (chattels) are to be distributed.
  • Suggesting particular tax management strategies (for example, explaining that the Will was structured a certain way to minimise tax liability rather than to restrict or disinherit members of your family).

There are some important points to note regarding letters of wishes, as follows:

  • A Letter of Wishes is a flexible document – because there are no legal formalities, it can be changed or replaced as your circumstances or those of your family change.
  • You can write more than one Letter of Wishes i.e. addressed to different individuals.
  • It is important that your letter can be found and it is commonplace to store such letters with the Will.
  • The Letter of Wishes is not binding and so if it is important that particular personal possessions go to a certain beneficiary (particularly more valuable ones), this is best dealt with in your Will.
  • It is not advisable to have the Letter of Wishes witnessed (even if it deals with gifts of your personal possessions) as a witnessed letter could be viewed as a Will and cause substantial problems as a result.
  • The letter does not have to be disclosed to the entire family – however, it may need to be disclosed if someone challenges the Will, claims against your estate, in the Family courts in relation to a divorce or in some other circumstances.

Q: If my Will is challenged, will my Letter of Wishes be relevant?

If you use a qualified, experienced professional to prepare your Will, it is far less likely that it will be questioned – but no Will or estate is completely immune from the possibility of a challenge (see our article ‘Is My Will Final?‘ for more details). In such circumstances, will your Letter of Wishes be of any relevance?

To answer this question, we will look at a couple of recent cases. First, consider the very well publicised case of Ilott v The Blue Cross in which a mother disinherited her estranged daughter and left the bulk of her £486,000 estate to three charities. The mother left a very strongly worded Letter of Wishes accompanying her Will which explained her decision not to leave her daughter any money. The daughter claimed against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 and after multiple hearings, was left with a meager £50,000.

A further case heard in July, Nahajec v Fowle, similarly involved an adult daughter of working age who had experienced a long estrangement from her parent. Like the Ilott case, the daughter was in difficult financial circumstances – and like the Ilott case, the deceased left a note forcefully explaining his clear wishes that the daughter should not receive any provision at all from the estate. As with the Ilott case, the claimant received an award – in this case over 11% of the estate.

Given that the deceased person expressed unequivocally why they had not left any money to their estranged child, how could the Court come to such decisions? Surely in this country we have the freedom of testamentary disposition – i.e. the right to leave our property to whomever we choose?

It would seem to depend on how such wishes are expressed and whether those views are accurate and rational. In both cases the written wishes were shown to include inaccuracies and exaggerations which undermined them in the courts’ eyes. For example, in Ilott, the mother’s Letter of Wishes implied that her attempts to reconnect with her daughter failed due to the fault of her daughter. The District judge instead held that both sides were responsible for the continuation of the estrangement, whilst attaching the greater responsibility to the deceased.

Consequently Lord Hughes’s opening statement in Ilott, which emphasised freedom of testamentary disposition, may be qualified by his later comments that:

“…the reasonableness of the deceased’s decisions are undoubtedly capable of being a factor for consideration within Section 3(1)(g) [of the Inheritance Act 1975]”.

Section 3(1)(g) states that the Court may look at ‘any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant’. when reaching its decision.

Similarly in the Nahajec judgment it was observed that:

“the fact that a deceased explained his reasons for leaving his Estate as set out in his will does not mean that the resultant provisions in the will are necessarily reasonable”.

Judge Saffman states of the note:

“It is also right to note that the note itself raises certain issues which detract from its significance and the extent to which it can be relied upon to controvert the claimant’s evidence … First, and perhaps least importantly there seem to have been some confusion on the part of the deceased as to how long it was since he had heard from his children… Secondly, and perhaps more importantly the note appears to have been premised on the contention that the children are ‘sufficiently independent of means not to require any provision from me’. Since it seems incontrovertible that the claimant who was not leading an extravagant lifestyle was only making ends meet by taking out loans, some of which were payday loans on the basis that was all she could get, it is difficult to see how this description could sensibly be applied to her.”

The lesson we can take from this is that care needs to be taken in writing a Letter of Wishes. If your letter focuses on the positive reasons why you have met particular beneficiaries’ needs, this will be more logical and convincing than if you offer personal and bitter explanations of why certain potential beneficiaries have been excluded. Ultimately inaccuracies and irrationally expressed wishes will weigh against you.

Always use a qualified, experienced professional to prepare your Will and advise you – get in touch with our team for a free meeting at one of our 59 offices or at your home address, without obligation. Call us on 08700 120 130 or email info@aprilking.co.uk.

Cases referred to:

Ilott v The Blue Cross, the RSPB, and RSPCA [2017] UKSC 17

Nahajec v Fowle [2017] EW Misc 11(CC)(18 July 2017)


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