A letter of wishes in lieu of a will is not legally binding

Q&A: If you are changing your will, you really do need to go through a solicitor

Lawyerly advice and good sense dictates one should do everything possible to avert a family row over your inheritance. Photograph: iStockphoto/Getty Images.

Lawyerly advice and good sense dictates one should do everything possible to avert a family row over your inheritance. Photograph: iStockphoto/Getty Images.

 

As I am elderly, and have had some experience with a solicitor in the making of my will in previous years, I now want to rewrite it but as simply as possible. I am curious to know if I can write my will in the form of “A Letter of Wishes” – such as I have done, in the process of making my “living will” ?

I have seven adult children, all of whom I trust, individually and as a group to follow my stated wishes. Life experience, as well as lawyerly advice, suggest that it is an unenviable task for parents to try pleasing each and all.

If there is goodwill amongst the family, I believe and hope that there will be no contention. However, if one or more want to make an argument, that would be their choice . . . I do not feel that it is within my remit, if I want to express my wishes . . . .Of course, I would expect my solicitor to witness my signing such a document, etc.

Ms I.O’S., email

I’d be very cautious about relying too heavily on a “letter of wishes”. They certainly have their uses as an indication of your preferences and choices but, critically, they have no legal force.

This is true whether you are talking in the context of outlining how you would like your estate to be distributed after your death, or even, as under a living will, your preferences for your care and, particularly, how aggressively (or not) you would like medical staff to try to keep you alive if you are not in a position to communicate at that time.

While living wills do have some force in certain jurisdictions, they do not, as yet, in Ireland. An Assisted Decision-Making (Capacity) Act 2015 was passed by the Oireachtas which would give them legal underpinning but my understanding is that this has yet to be “commenced” – or formally activated – by the Minister for Justice.

That’s not to say they are worthless. Most medical staff would be guided by a patient’s personal and well-informed choices where known but they’re simply not yet legally binding in any way. And getting your solicitor to sign it would not change that. And in any case, a living will and a letter of wishes in lieu of a will are very different things.

So if you are changing your will, you really do need to go through a solicitor and make it legally watertight. And if you are looking at your solicitor signing a letter of wishes, there’s very little reason to sidestep them on a will.

As it stands, you have a will and it cannot be overwritten by a letter of wishes. In the event of your death, the old will takes precedence and you seem to be of a view that it is no longer appropriate.

As you say, lawyerly advice and good sense dictates one should do everything possible to avert a family row over your inheritance. These things have a habit of being the most unpleasant types of dispute, with repercussions lasting decades or more. It’s great that you trust your seven children to follow your wishes – and the chances are that they will. But you will not be in a position at that stage to turn the clock back if your trust proves ill-founded.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice

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