Today’s blog was written by Courtney Lanthier, Law Clerk at Fasken LLP.

As estate planning legal professionals, we sometimes lose sight of how difficult and confusing reading a Will can be, often full of “legalese” and sentences that seem to go on forever. An executor reading the will may not fully grasp what it is they are meant to do and how to make the difficult decisions they are asked to make, which can be a confusing spot to be in. Oftentimes, the lawyer is there to assist and help the executor understand and interpret the Will from a legal perspective, but sometimes it may be helpful to have additional guidance from the testator in their own words.

The Letter of Wishes (“LOW”) is a non-binding document that is exactly as it sounds – a letter that accompanies a will and provides clarification to executors, trustees, or beneficiaries about the testator’s personal wishes and intentions.

A LOW can be beneficial for many reasons, but a few of them are:

• Detailing the distribution of specific personal property – the LOW can provide details about personal items or sentimental possessions that the testator would like to pass on to certain individuals. A previous blog post of mine goes into more detail about the use of LOWs for this specific purpose.
• Explaining funeral/burial arrangements – the LOW can set out any preferences regarding the type of funeral/memorial service, burial or cremation wishes and advise the trustees of any pre-paid or pre-arranged services.
• Provide additional trustee guidance – in some cases, the Will may set up discretionary trusts, leaving distributions of income and capital up to the trustee. If the testator wants to provide additional guidance, the LOW can include suggestions on how trustees should manage and distribute trust assets or consider the beneficiaries’ needs and circumstances (for example, providing a capital distribution to a child when they reach a certain age to purchase a vehicle).
• Provide explanations – in some cases, a LOW can be used by the testator to clarify decisions made in the will that might not be immediately obvious to the beneficiaries, which may help to prevent misunderstandings or disputes. An example of this may be when a testator only appoints one of their children to act as executor and trustee of their estate, and wants to provide clarification on why they made that decision.

While there are many benefits to using a LOW, it is important to remember that where there are pros, there are often also cons. The first being the non-binding nature of a LOW, meaning that it is not legally binding and the executors are not obligated to follow the instructions set out in the LOW.

Second, if the LOW sets out contradictory wishes to those in the will, it may lead to confusion or disputes among beneficiaries or executors, potentially complicating the estate administration process.

To mitigate these downsides, the lawyer should clearly communicate the intent and limitations of the LOW with the testator. If the testator prepares the LOW, it should be provided to the lawyer for review to ensure it does not contradict the will. As well, the testator should review it regularly to ensure it still aligns with current wishes and changing circumstances.

While a letter of wishes is not legally binding, it can still serve as a useful tool and an added “personal touch” to an estate plan, offering clarity on decisions, ensuring wishes are understood and guiding those involved in the administration of the estate.