A memorandum or letter of wishes is a document containing an expression of wishes to your executors and beneficiaries with information on how you would like your estate to be administered. It is not a Will.1
There are two types of memorandums: The first is a precatory memorandum and is not legally binding. It is a mere expression of your wishes with respect to the distribution of certain items. The second type of memorandum is a legally binding memorandum and must be incorporated into your will by reference.2
When writing a memorandum of wishes, a few things must be considered to ensure your wishes are honoured.
1. This is not your Will.
It is essential to clarify that this memorandum of wishes is not your Will and does not revoke any Wills. A memorandum of wishes should work alongside a Will and not contradict it. You should indicate that this memorandum reflects your wishes only.
Consider including a statement clarifying that you have executed your last Will and Testament and that you acknowledge that your Will determines how your estate will be distributed after passing. It is important to include, in clear language, that this memorandum of wishes does not revoke any Wills or change any provision of your Will.
A note in your handwriting and signed could be considered a holographic will and can actually have the unintended consequence of revoking your last will and testament. To be safe, consult your lawyer.
2. A precatory memorandum of wishes is not legally binding, so it does not have the same effect as a Will.
A memorandum of wishes is not the same as a Will. A Will is a legal document that will devise, bequeath, or dispose of all property you have at the time of death.3 When you draft a Will, you assign an executor of your estate, who is responsible for carrying out the wishes laid out within your Will. This executor can also be responsible for carrying out your wishes in a memorandum of wishes; however, if you choose to draft a precatory memorandum of wishes, the executor is not legally required to follow it.4 The benefit of a precatory memorandum is that you can change it as many times as you'd like without changing your will.
Generally, when choosing your executor, you should have faith that they will act in your best interest in following your Will while also maintaining the wishes laid out in this additional document.
3. To make a memorandum of wishes legally binding, you must incorporate it by reference into your will.
If you would like to ensure that your memorandum of wishes is legally binding, you must incorporate it by reference into your will. To do this, you must create the memorandum of wishes before the will, it must be referred to specifically in the will, and the document must be sufficiently described so that it can be identified. 5 If you would like to make revisions to the memorandum of wishes, you will have to make repeated revisions to the will.
If you are choosing to use a legally binding memorandum, it is important to date it so that there is no dispute that it was drafted prior to the will in the case that it is contested. 6
3. Ensure your executor knows the memorandum of wishes exists.
Ensure that the executor of your estate knows of the existence of your memorandum of wishes and its location so that your wishes are properly represented when administering your estate.
4. What can you include?
It is important to include items that you wish for your decision to be binding within your Will. Requests that you can include in a memorandum of wishes include7:
- Specific descriptions of personal belongings that you do not believe to be disputed and are not listed within your will and the names of beneficiaries;
- Social media accounts;
- Organ donations; and,
- Decisions regarding burial vs. cremation
This list is not exhaustive but provides an idea of the items typically dealt with in a memorandum of wishes if you choose not to include them in a Will.
Be sure to consider contingencies in a memorandum of wishes just as you would in a Will in case of the event that a beneficiary predeceases you.
4. What should you not include?
- Items that you are already addressing in a Will;
- Items that you are adamant about giving to a particular person – this should be included in a will to prevent issues;
- Items that you believe could give rise to issues between beneficiaries;
- Items of a significant monetary value;
- Items of a significant sentimental value; and,
- Gifts to charity.
This list is not exhaustive but conveys the difference between the items that can be included in the memorandum of wishes versus the items that should be addressed within a Will.
Footnotes
1. James Cooper Morton & Risa M. Stone, Essential Estate Administration in Ontario (Toronto: CCH Canadian Limited, 2002) at 16.
2. Mary-Alice Thompson & Robyn Solnik, Drafting Wills in Ontario: A Lawyer's Practical Guide (Toronto: CCH Canadian Limited, 2003) at 77.
3. Succession Law Reform Act, RSO 1990 c. S.26, s.2.
4. Supra note 1.
5. Susannah Roth & Mary-Alice Thompson, "The Annotated Will, 2017" (January 2017), online: LSO Store [https://store.lsuc.on.ca/Content/pdf/2017/CLE17-00104/0%20COMBINED%20MATERIALS%20as%20of%20Jan%205.pdf].
6. Ibid.
7. Supra note 5.
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.