Letter of wishes overriding a will

This is a question that comes up quite often, and the short answer is no, a letter of wishes cannot override a will. However, the fuller picture is worth understanding because letters of wishes do serve an important practical function in certain contexts.

Legal position:

A will is a legally binding document that, provided it complies with the formal requirements of section 9 of the Wills Act 1837, governs how a person's estate is distributed on death. It must be in writing, signed by the testator, and witnessed by two witnesses who are both present at the time of signing.

A letter of wishes has no legal force as a testamentary document. It does not meet the formalities required by the Wills Act and cannot create enforceable obligations on executors or beneficiaries. If there is a conflict between a letter of wishes and the terms of the will, the will prevails every time.

Where letters of wishes are relevant:

Letters of wishes are most commonly used in connection with discretionary trusts, including those created by a will. Where a will establishes a discretionary trust, the trustees have a power (but not an obligation) to distribute assets among a class of potential beneficiaries. A letter of wishes expresses the testator's preferences about how the trustees should exercise that discretion.

Trustees are expected to consider a letter of wishes, but they are not bound by it. The leading position is that trustees must exercise their own independent judgment. If they simply follow the letter of wishes without applying their own minds to the circumstances, they could be in breach of their fiduciary duties.

Letters of wishes are also sometimes used to express non-binding preferences about funeral arrangements, the care of pets, personal messages to family members, or the distribution of personal chattels where the will itself does not deal with them specifically. Again, none of this is legally enforceable.

Practical points:

1. If someone wants a particular outcome to be legally binding, it must go in the will itself, not in a letter of wishes.

2. If a letter of wishes conflicts with the will, executors must follow the will. If they follow the letter of wishes instead and that causes loss to a beneficiary, they risk a claim for breach of duty.

3. Letters of wishes can be changed without any formality, which is their main advantage in the context of discretionary trusts. But this informality is also their weakness, as they carry no legal weight.

4. There is sometimes confusion where a person writes what they think is a will but it does not comply with the Wills Act formalities. Such a document cannot take effect as a will in England and Wales. Unlike some other jurisdictions, there is no dispensing power that allows a court to treat an informal document as a valid will simply because it reflects the deceased's intentions.

So the position is clear: a letter of wishes is a guide, not a command, and it can never override the will.