The Importance of Side Documents Alongside a Will

Memoranda of Wishes, Letters of Guidance and Side Letters sit alongside a Will. These side documents guide executors, trustees, and those managing an estate or trust after death. While they are not substitutes for making a Will, they are valuable. They give you a voice after death that even a properly prepared, structured Will may not. They are not part of a formal Will, so they remain confidential and are not part of the public probate record when a grant of representation is acquired.

Memorandum of Wishes

Gifts and personal belongings

Provided the Will includes a reference to a separate side document, it’s perfectly acceptable (and standard practice) to include small bequests. This can avoid complications should an item no longer exist or one of the intended beneficiaries dies.

Beware, a Memorandum of Wishes isn’t suitable for specifying significant or valuable gifts (such as valuable artwork, shares, or property).

Additionally, as mentioned, a Memorandum of Wishes isn’t a substitute Will. It can’t be used as a codicil to amend an existing Will. Amendments must comply with the Wills Act (1837) and be formalised in a Will.

On the plus side, a vital benefit of a Memorandum of Wishes is its informality. It can be changed before death and doesn’t need to be witnessed. But remember, the most recent Memorandum should be kept with the most recent copy of your Will so executors know your final wishes.

Tread Carefully

While a Memorandum of Wishes supports the Will, it must be carefully worded and not contradict it.

Letters of Guidance

Trusts and children

If a Will contains trusts, a Letter of Guidance is an excellent way to explain how the trustees should manage them. Nobody knows a child better than a parent. So make sure you include details about how to raise the children, including more information about their likes and dislikes, in the letter.

You can update a Letter of Guidance without changing the Will, and it can be used to give trustees discretion on managing money and property for the beneficiaries.

Additionally, Letters of Guidance are valuable where beneficiaries cannot manage their finances, are vulnerable or need help managing their affairs. For example, if a beneficiary receives means-tested benefits, a carefully worded Letter of Guidance can ensure that the individual is not adversely affected.

However, because the document isn’t legally binding when executors and trustees are chosen, they must be individuals who can be relied on to follow the wishes as written.

Additional Side Letters

Funeral wishes

Under current law, the executors appointed in a Will are technically the decision-makers regarding funeral arrangements. By setting out personal funeral preferences in a side letter, those dealing with your estate can informally read what’s important. While it’s advisable to keep the letter brief, details about the type of service, favourite hymns, flowers, and music, including who should be notified about the death and invited to the funeral, can be included.

Controversial bequests and explanations

As well as explaining why individual gifts have been made, a sealed side letter can explain why a Will is structured a certain way. For example, if a more significant share of an estate is left to one child or a charity, it can be used to explain in detail why this decision was made. This can help to avoid family disagreement and mitigate against inheritance claims after death.

Our Advice

Side documents are valuable if used appropriately. They give an individual a voice after death. But remember, they’re not all legally binding. So, ensure you understand the legal (and any other) implications by seeking professional advice before writing. That way, your Will and accompanying letters will be fit for purpose and fully compliant.

Our specialist lawyers have many years of experience advising clients on wills, trusts, and probate matters. Please get in touch with us for further information or advice on this or any other related issue. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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