Expression of Wishes
A properly drafted Will is a legal, formal document. If you add notes and comments to it you risk those comments being regarded as part of the formal Will.

To avoid any confusion notes and comments are best added to an ‘Expression of Wish’.

A further advantage is that where the Will becomes a public domain document after Probate, the Expression Wish remains private unless presented to a Law Court as evidence.

An ‘Expression of Wishes’ or ‘letter of intent’ can be used to:

• Set out your funeral wishes;
• Direct who you wish to give your personal chattels to;
• Tell your trustees how you want a trust (created in your Will) to operate;
• Advise your child’s guardians how you want your minor children bringing up - including their education, where they are to live, their dislikes and likes;
• Explain why you have appointed certain people in preference to others;
• Set out your preferred funeral arrangements; and
• Set out why you have excluded a person from benefiting in your Will.

In short, an ‘Expressions of wish’ is a very flexible way or of adding ‘flesh to the bones’ of the contents of the Will.

The beauty of an ‘expression of wish’ is that it is a separate document to your Will and, unlike a Will, it therefore rarely becomes a document in the public domain. It does not need to be written in legal jargon, and it can be updated whenever your wishes change without you having to arrange for a redraft of your Will.

The aim of the ‘expression of wishes’ is to set out a testator’s wishes in a language that the executor, trustee, beneficiary, Guardian and the Law Courts can understand.

Problems of Using an Expression of Wishes

Care is needed when preparing these documents. In certain cases the language can be deemed to be a specific instruction rather than an expression of wish, and as such an extension of the testator’s Will. In these circumstances the outcome can be an expensive court case to resolve the issue.

The second danger is that the ‘expression of wishes’ is just that! It sets out to whoever the document is addressed to the testator’s wishes. The executor, Guardian, Trustee, or to whoever the letter is addressed can, if they so wish, completely ignore it.

Where you fear the letter may be disregarded you should include your directions (if possible and appropriate) within your Will.