Letters of wishes (sometimes referred to as a Memorandum of Wishes) are non-binding documents that provide guidance of the estate planning documents.
It also allows the Last Will and Testament or the Trust instructions to remain flexible and broad.
The role of Letters of Wishes in estate planning include:
The drafting of Letters of Wishes should be done with an Estate Attorney so that they are not deemed as informal wills. If the Letters of Wishes are drafted incorrectly, they may cause complications with the main Will and expose the estate to litigation.
In an instructive case study, Taylor v Taylor 2012 (3) SA 219 (ECP), a myopic and badly planned estate had led to a dispute between the members of the family.
The testator died in 2006, leaving behind his three children (who were the applicants in the litigation), his surviving spouse (the step-mother of his children) and a substantial house in Port Elizabeth, among many other assets.
When reading his Letters of Wishes (which he dated and signed seven weeks before his death) it became clear that the testator intended for his widow to be allowed to remain in the house after his death, and for the additional property to be rented out in order to generate an income that covers the expenses of the house.
However, the Will itself said nothing about the widow being entitled to remain living in the house after the testator's death. Leaving his children with no legal obligation to allow their step-mother to remain in the house for the remainder of her life.
And because the testator was not guided by his estate attorney, he drafted his letter of wishes incorrectly.
When done correctly, the Letters of Wishes should:
On the other hand, the Letters of Wishes should not:
If a professional had been involved, he or she would have known that the family dynamic is delicate, and that the testator had to balance the expectations of his children while providing a lifetime of financial support for his surviving spouse.
As a result of not having an estate attorney, the testator's children had decided not to let their step-mother remain on the property. Van Deventer and Van Deventer Incorporated.
Contact Van Deventer and Van Deventer Incorporated today, for estate attorneys in Johannesburg that will help to avoid conflict and family feuds after you are gone.
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