After devoting time and money to carefully preparing Wills that reflect their wishes and comply with the formal legal requirements for Wills, individuals often then prepare letters of wishes intended to be flexible companion documents to their Wills to guide their executors. However, these seemingly simple letters of wishes have the potential to alter or even revoke carefully crafted Wills if they are not written clearly.
Letters of wishes to executors are written for various reasons. For example, they may be used to provide guidance regarding the best means of managing the use of a family cottage, the type of educational expenses that should be covered for a young beneficiary or how personal effects should be divided and delivered after a will-maker passes away.
These letters of wishes can be binding in British Columbia. Letters of wishes that are written and executed by a will-maker before his or her Will is executed and then specifically referenced in that Will (often by date so that the letter of wishes is capable of being identified) are generally binding. In that case, the letter of wishes cannot be effectively changed after signing the Will without republishing the Will or making a new one.
These letters of wishes can also be non-binding in British Columbia. They are often written after a will-maker has executed his or her Will and are not specifically referenced in that Will. For example, a Will might include a statement to the effect that the will-maker wants his or her executor to follow any wishes made known to the executor in distributing the will-maker's personal effects. The will-maker might then write a letter to his or her executor regarding what items should be received by which of the will-maker's children to maintain fairness.
After a will-maker's death, his or her executor has a duty to search for his or her last Will. If the executor is applying for an estate grant in British Columbia in relation to that Will, the executor must swear that he or she believes the Will to be the last Will of the deceased person who deals with property in British Columbia. Swearing this statement may place an executor in a predicament if he or she knows of a later "letter of wishes" that could conceivably be a later Will of the deceased. The executor may choose to seek legal advice regarding the nature of the "letter of wishes" and may eventually decide to supply it to the court with the submission for an estate grant to avoid any suggestion that the executor concealed or discarded a possible Will.
It may seem farfetched that a court would discard or alter a formal Will in favour of an informal letter of wishes. However, the Wills, Estates and Succession Act, which is the legislation that applies to the making of a Will in British Columbia, includes a notable provision (section 58), which is aimed at giving effect to the testamentary intentions of a deceased person even if those intentions are expressed in a record that does not meet the formal requirements for a Will (i.e. is not made in writing signed at its end by the will-maker and two witnesses in the presence of each other at the same time). When presented with this type of record, the court considers whether the record represents the testamentary intentions of a deceased person, the intention to revoke, alter or revise a Will or a disposition contained within it. If it does, then even though the record does not comply with the formal requirements for a Will, the court can order that the record be fully effective as if it was part of the Will or a revocation or alteration of the Will. The court can even consider an electronic record (which bears few of the traditional hallmarks of a Will) to be a fixed and final expression of testamentary intention that alters or revokes a formal Will.
The court's analysis tends to be fact-specific. Factors such as the signature of the record by the deceased, the signature of the record by witnesses, the fact that the record was written in the deceased's handwriting and the title of the record have all been factors that indicated that a record was a fixed and final expression of testamentary intention, which should be fully effective as part of a Will or a revocation or alteration of it.
Therefore, to avoid confusion, those preparing letters of wishes that are intended to serve as mere guidance to executors might consider:
- Setting out those wishes in a separate letter from the Will that is not attached to the Will;
- Specifically including a statement that the letter is not intended to be binding;
- Choosing a title for the letter that indicates its non-binding nature;
- Not drafting the letter in imperative terms since those could override the terms of a Will; and
- How the letter could be perceived by beneficiaries and family members if the executor decides to share it with them or disclose its existence to the court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.