Letter Of Wishes And Your Estate

Letter of Wishes is a personal document that is supplementary to your Last Will and Testament. Although being of no legal force or effect, it can be useful in interpreting your intentions on death.

The role of a Letter of Wishes 

Depending on your personal circumstances, a Letter of Wishes as it relates to your deceased estate, can serve to: 

  1. Provide general direction to your executors and trustees when you are no longer around. 
  2. Direct the specific project or region to which the funds for a charitable bequest should apply.
  3. Detail reasons why a beneficiary is excluded in your Will. For example, because you assisted that beneficiary during their lifetime. 
  4. Allocate your sentimental items of low monetary value to heirs. This avoids lengthy lists in your Will and permits flexibility to change the Letter of Wishes due to a change in circumstances, such as a beneficiary predeceasing you. 
  5. Direct the guardians of your minor children appointed under your Will. 

When not to use a Letter of Wishes?

A Letter of Wishes should not fetter a trustee’s discretion, impose legal repercussion if it is disregarded, serve to distribute items of value or distribute items where you would otherwise wish for complete surety that the nominated heir would receive it. 

When and how to draft a Letter of Wishes?

As a Letter of Wishes is not a legal document, there is no set way it must be drafted or signed. However, Letters of Wishes drafted a substantial period after a Will could cause confusion on death as circumstances may have changed between the signing of the two documents. It is thus recommended to sign your Will and Letter of Wishes close together. It is also important that your Letter of Wishes is drafted with the guidance of your Estate Planner in the correct language illustrating that in reflects your wishes. This is to avoid it being in conflict with your Will or, worse, revoking it. 

The case of Taylor v Taylor 2012 (3) SA 219 (ECP) illustrates the pitfalls of a badly planned estate. The deceased was survived by 3 children and spouse (the children’s stepmother). The largest asset in the estate was the primary residence, where the spouse and deceased resided. The testator’s Will left all immovable property, including the residence, to his children and the residue to his spouse. A few weeks before passing, the deceased drafted a Letter of Wishes, contradictory to his Will, detailing an intention that his spouse be allowed to remain in the primary residence after his death and for his additional property to be rented out in order to generate an income that covers the expenses of the house. As the Letter of Wishes was not legally binding, the children were under no (legal) obligation to allow their stepmother to remain in the home. In this scenario, a badly drafted Letter of Wishes saw the deceased’s intentions ignored in law. 

Your Estate Planner can assist you in drafting a Letter of Wishes taking into account any delicate family considerations, personal wishes as well as your expressed intentions under your Last Will and Testament.

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