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Should a letter of wishes, drafted to guide trustees of a discretionary Will trust, be dated on a different day to the Will in order to avoid the letter of wishes becoming a public document or disclosable alongside the Will?

When a Will becomes public

A Will only becomes a public document if a grant of probate is required. This is usually dependent on the size of the estate at the time of the testator’s death. In applying for probate, the executors will send the original Will of the deceased to the Probate Registry.

Once the Will is lodged with the Probate Registry it becomes a public document. Any person can then apply for a copy of the Will. If a grant of probate is not required, the Will remains a private document between the executors and beneficiaries.

Letter of wishes

A letter of wishes is a document drawn up to accompany a Will and is often stored with the Will. Unlike a Will, a letter of wishes is not legally binding. Often, as in this Q&A, it is used to guide the executors/trustees as to the intentions and wishes of the testator/settlor. It can also deal with other matters not contained in the Will, including the following:

  • Instructions as to who should, or should not, be informed of the death of the testator
  • Guidance on funeral arrangements
  • Details about how the testator’s children should be brought up such as their education and religious upbringing
  • An explanation as to why a particular person might have been excluded from the will or trust

The letter of wishes can contain directions regarding the assets of the testator/settlor, such as entitlement to personal possessions not mentioned in the Will. However, the letter of wishes must not contradict the terms of the Will.

There is no particular format for a letter of wishes. It would contain the following:

  • The date of the letter and the name of the executors/trustees
  • The purpose of the letter and relevant guidance
  • The signature of the testator/settlor

Summary

A letter of wishes is a private document and will not become a public document together with the Will. It is not lodged with the Probate Registry. A letter of wishes does not therefore have to have a different date from that of the Will. However, a letter of wishes must be carefully drafted in order to avoid any argument that it is disclosable. Most importantly, the Will should not refer to the letter of wishes. If it does, it could be argued that the letter of wishes is incorporated in the Will and is no longer private: (Taulbut v Davey).

If you would like a chat to discuss further, please feel free to contact me for a free 30-minute consultation.

Sophie Campbell

01637 800 306

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