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Are Letters of Wishes actually that useful, or are they just wishful thinking?

Having been late to the party, I have finally watched the final series of the Succession, I couldn’t help but notice the dispute regarding Logan Roy’s ‘instructions’ upon his death and speculate what the outcome could be in England or Wales.

If you haven’t watched any of Succession, the readable parts of Logan’s ‘instructions’ were:

“To my executors and family,

The following is a round of additions and clarifications…in the event of my passing.

I have created this record to provide my executors with instructions in the event of my death. It includes financial and personal information…and suggestions for make this difficult time easier for my family.

It is my preference that the title and role of CEO should be given to Kendall Roy.

Regarding my funeral arrangements, my funeral and burial should be carried out according to the customs and practices of the Roman Catholic Church. My preferred hymns: Amazing Grace, Abide With Me, Here I Am Lord, I Watch The Sunrise Lighting The Sky And The Lord’s My Shepherd (Psalm 23).

I wish to be buried with the attached copy of my sister Rosie’s photograph and one of my wife Marcia in my right hand trouser pocket.

I would like to change the epitaph on my headstone to…

Truthful lips endure forever but a lying tongue is but for a moment. (Proverbs 12:19)

I leave my head of security, Colin Stiles, my Rolex Daytona Lapis.

Regarding personal items… should remain in a secure facility… necessary financial compensation… collection of impressionist paintings… Switzerland.

Sincerely yours,

Logan Roy”

The Wording of the Instructions

Firstly, it's crucial to understand that Logan's instructions were addressed to his "executors and family" as a set of "additions and clarifications" for after his death. These instructions represent Logan's desires rather than legally binding obligations, as indicated by phrases like "It is my preference," "I wish," and "I would like."

In a legal case, Re Wippell [2018], the importance of precise wording in Letters of Wishes was emphasised. The judgement was regarding a letter of wishes which provided that a charitable trust be set up, and that the charity in question could use money from the trust. However, the letter of wishes also stated that one of the beneficiaries who was also a trustee “may be” entitled to receive £95,000 from the trust if she became a widow.

The court decided that the beneficiary was not entitled to the money, and pointed to the fact that the charity was entitled to use the money. If the beneficiary later became a widow after the charity had used the majority of funds, then the charity would be in a difficult situation where it would have had to pay money back into the trust fund.

As a result, the wish in the Letter of Wishes couldn’t be granted to the beneficiary.

Letters of Wishes in England and Wales

In England and Wales when wills are drafted, individuals usually draft an accompanying letter of wishes, which sits alongside the will. Letters of wishes are normally just that – they express what a person wishes to happen upon their death. They don’t create any legal obligation, and the executors of a will are not bound to follow the wishes. Logan's instructions fall under this category—they outline his preferences for various matters without legally binding anyone to follow them.

These letters serve various purposes, particularly in today's complex family dynamics with second marriages, stepchildren, and the rise in cohabiting couples, letters of wishes can help explain why a will has been set out in a certain way and to place parameters. They can clarify the reasoning behind certain provisions in a will and set guidelines for trustees in managing trusts.

Whilst they can always record who you wish to receive certain items you own or instructions to guardians if there are underage children, letters of wishes can also be used when trusts are involved in your will. In respect of life interest trusts and discretionary trusts in wills, letters of wishes can state who should receive any advancement of funds and who testator wishes income from the trust should be given to, as well as a range of other matters.

Marking on Wills and Letters of Wishes

The instructions left by Logan Roy caused a dispute as to who should succeed him as CEO of his company. Logan had marked his will in pencil with a line that was partially underlining Kendall’s name, and partially crossing it out.

If the line was intended to underline Kendall’s name, this would suggest that Logan certainly wanted his son to succeed him. If, however, the line was intended to cross out Kendall’s name, then it would suggest Logan had changed his mind on who should succeed him.

When it comes to wills in England and Wales, a will cannot be changed or amended once it has been signed, unless the new amendments are executed in the same manner as a will – that being the amendments being witnessed by the witness who were at the original will signing. If a person simply crosses out a clause in their will by themselves, and it is unwitnessed, that amendment cannot be valid.

Additionally, pencil marks are difficult to give weight to, because writing or marking in pencil implies that the testator was undecided with their changes, causing complications, and possibly disputes, post-death.

What would happen in England and Wales?

There isn’t a huge number of disputes regarding letters of wishes in England and Wales because the general understanding, as previously mentioned, is that letters of wishes create no legal obligations upon executors or trustees, and only needed to be considered.

As a result, if there were a dispute concerning a letter of wishes to that of Logan’s, any court would likely review any letter of wishes alongside the will, and may take guidance from the wishes, but the court would have no obligation to uphold the letter of wishes or its contents – it’s the will that usually carries more authority.

That being said, Letters of wishes can and may give rise to disputes within a family, due to the contents of the wishes, particularly if these wishes are also mirrored within the will. If a legacy is in the will, and in the Letter of Wishes, then of course.

Making any sort of application, whether that be a challenge to a will’s validity or for the Court to clarify who is responsible, you will need the advice and representation of an experienced contentious wills and probate solicitor, who can advise you in the best way possible.

To speak to someone in our Contentious Wills and Probate team, please email or phone 01295 270999 (Banbury Office), 01869 252161 (Bicester Office), or 01788 579579 (Rugby Office).