When used in conjunction with a will, a precatory memorandum – also referred to as a “letter of wishes” – can be an advantageous estate planning tool. This month’s Solicitor’s Tip reviews what a precatory memorandum is and how it can be used with a will, and then addresses key drafting considerations for preparing a will to work alongside a precatory memorandum.
What is a Precatory Memorandum?
Like a will, a precatory memorandum or a letter of wishes is a document which expresses a testator’s wishes or desires regarding the disposition of their property. However, precatory documents and words are not normally legally enforceable.[1] Precatory words – such as “I wish,” “I hope,” or “I request”[2] – are construed as wishes rather than directions, and typically are not binding expressions of testamentary intent,[3] even if they appear in a formally executed testamentary instrument, such as a will or a codicil.
When to Use a Precatory Instrument
A precatory memorandum can accompany a will and provide instructions to the estate trustee regarding estate administration in a number of areas, including:[4]
- funeral and burial arrangements;
- the distribution of items with sentimental but modest monetary value that are not expected to be contentious, such as jewelry or collectibles;[5]
- custody of children, or guidance as to how minor children are to be raised and supported;
- the testator’s preferences regarding organ donation;
- tracking advances on inheritances, such as loans and gifts, that are to be factored into the estate’s total value before it is distributed; and
- guidance to trustees regarding the administration of discretionary trusts.
While an estate trustee may not be required to comply with a precatory memorandum, even if it is formally executed,[6] there are a number of advantages to using these instruments, including:
- Flexibility and cost savings: A precatory memorandum can be drafted more flexibly than a will, using the client’s own words to express their wishes.[7] There also should be no need to execute a new will if the client creates or alters a precatory memorandum, making it a relatively cost-effective estate planning tool. Lastly, creating or altering a precatory memorandum should not revoke the client’s existing will,[8] making these instruments ideal for clients who want to be able to change the distribution of personal items, or be able to change other arrangements related to their estate.[9]
- Confidentiality: A testator can include sensitive information in a precatory memorandum since these instruments will not become public if the testator’s will is admitted to probate, even if the will expressly references the precatory memorandum.[10] For example, a testator could include instructions regarding cryptocurrency wallets and information regarding how to access online accounts in a precatory memorandum.
Drafting Tips for Wills That Reference Precatory Instruments
If a client wants to include a precatory memorandum in their estate plan, their will ought to expressly refer to the memorandum and clearly indicate that it is only intended to provide guidance. Otherwise, the court may be asked to determine whether the client intended to incorporate the memorandum into their will under the doctrine of incorporation by reference.[11] In this scenario, if the court were to find that the client intended the precatory memorandum to be binding, there is a risk that the memorandum could be rendered ineffective, as the doctrine of incorporation by reference can only be applied if there is satisfactory proof that the external document being incorporated into the will was in existence when the will was executed.[12] This means that if the client created or altered their precatory memorandum after the will was executed, it would have no effect.
When drafting a will clause to refer to a precatory memorandum, it may also be advantageous to utilize a power of appointment. When a power of appointment is included in a will, the testator empowers the donee of the power to decide how to dispose of specific estate assets.[13] Similar to a precatory instrument, the exercise of a power of appointment is discretionary – it is “merely an authorization and not an obligation to perform.”[14] It is possible for a will clause to grant a power of appointment with respect to estate assets referenced in a precatory memorandum, giving the donee of the power discretion over the distribution of those assets.[15]
The strategy of combining a power of appointment with a precatory instrument could also allow the client to place greater limits on the scope of the donee’s discretion, so long as a special power of appointment is used. This type of power of appointment specifies the beneficiaries to whom the donee of the power may choose to gift the affected estate assets.[16] In this scenario, the donee of the power would still have discretion over the distribution of the estate assets listed in the precatory memorandum, but would not be at liberty to distribute the asset to a third party not referenced in the will clause. In comparison, if a general power of appointment is included in a will, or a precatory memorandum is provided but the will does not also include a power of appointment, there is a risk that the estate trustee or the donee of the power could simply choose to distribute the estate property to themselves,[17] or whomever else they choose. If a will is drafted to include a special power of appointment, however, it would be prudent to ensure that the potential beneficiaries listed in the precatory memorandum and the potential beneficiaries listed in the will clause containing the power of appointment are consistent; if they are inconsistent, the estate trustee or another party may think it necessary to apply to the court for direction.
If a power of appointment is included in the will, it is also advisable to specify how the affected assets ought to be divided or distributed if the donee of the power does not exercise their discretion.[18] Addressing this point in the will is prudent because there is a risk that the donee of the power may decline to exercise the power, plus the precatory memorandum could be lost. One possible way to deal with the assets, in the event they are not distributed under the power appointment, would be to include a gift over.[19]
Conclusion
While precatory memoranda are not binding, they can provide valuable flexibility and guidance in estate planning, particularly when distributing personal property. To ensure that a precatory document functions as intended, it is important that counsel take care when drafting a will which references a precatory memorandum. It ought to be clear that the client does not intend the precatory memorandum to be binding. Counsel should also consider whether including a special power of appointment in the will would better achieve the client’s objectives, as a special power of appointment may place greater limits on the scope of the donee’s discretion while distributing estate assets.
[1] See Albert H. Oosterhoff et al, Oosterhoff on Wills, 9th ed (Toronto: Thomson Reuters, 2021) [Oosterhoff] at 117.
[2] See Maurer Estate (Re),2025 BCSC 1539 [Maurer] at para 63, quoting Dennis Pavlich, Trusts in Common-Law Canada, 4th ed. (Toronto: LexisNexis, 2024) at § 4.01.
[3]Johnson v Farney (1913), 14 DLR 134 (Ont CA); Sutherland Estate v Nicoll Estate, [1944] SCJ No 24 at para 31, [1944] SCR 253 (SCC). For more recent case law discussing precatory words, see Shearer v Hoegg Estate, 2024 NSSC 324; Hipkins v McDonald, 2025 SKCA 34; In the Estate of Patrick Paul Quinlan, 2025 NLSC 22.
[4] See also Lindsay Ann Histrop, Estate Planning Precedents: A Solicitor’s Manual (Toronto: Thomson Reuters, 1995) (loose-leaf) [Histrop]at §A:14. App. 12 – Will Drafting Checklist, § 3:276.70.
[5] It is advisable to provide for the distribution of valuable or potentially contentious items in the will itself.
[6] See Rudaczyk Estate v Ukrainian Evangelical Baptist Assn. of Eastern Canada (HCJ), 1989 CanLII 4129 (ON SC) [Rudaczyk] (court held that memorandum which expressed a wish regarding distribution of a portion of the residue of the estate was not legally binding, even though the memorandum complied with the statutory formalities of execution applicable to wills). See also Re Blow, 1977 CanLII 1274 (ON HCJ).
[7] J.A. Brule & Lindsay Histrop, “Will Planning and Drafting” in Histrop, supra note 4 at § B:5.
[8] CED (online), Wills,“Testamentary Intent” (I.A.) at § 3.
[9] See Histrop, supra note 4 at §A:14. App. 12 – Will Drafting Checklist.
[10] Not even the estate beneficiaries are legally entitled to review a letter of wishes. See Kim Whaley, “Memoranda of Wishes” (22 March 2006), online (blog): <https://welpartners.com/blog/2006/03/memoranda-of-wishes/1000/>.
[11] See, for example, Maurer, supra note 2at paras 76-84; Rudaczyk, supra note 6; Taulbut v Davey (As Executrix of the Deceased), [2018] EWHC 730 (Ch).
[12] Maurer, ibid at para 75.
[13] See Suzana Popovic-Montag, “Solicitor’s Tip: Including a Power of Appointment in a Will” (3 March 2025), online (blog): <https://hullandhull.com/2025/03/solicitors-tip-including-a-power-of-appointment-in-a-will/> [Popovic-Montag].
[14] Ibid, quoting Albert H. Oosterhoff, Robert Chambers and Mitchell McInnes, Oosterhoff on Trusts, 9th ed (Toronto: Thomson Reuters, 2019) at 145.
[15] The Law Society of Manitoba also suggests using a power of appointment to distribute personal effects if a testator has not finalized their wishes regarding the distribution of personal effects: see The Law Society of Manitoba, Wills and Estates (November 2022), online: <https://educationcentre.lawsociety.mb.ca/wp-content/uploads/sites/2/2021/09/Wills-Ch-1-FINAL.pdf> at 97. For sample will clauses, see Histrop, supra note 4 at §§ 3:268, 3:269, 3:269.50, 3:274. The sample will clause at § 3:274 states:
“To dispose of all articles of personal, domestic and household use or ornament belonging to me at my death, including consumable stores, and all automobiles and accessories thereto then owned by me, among those of [Specify parties], in such manner and proportions as my Trustees in their absolute discretion deem advisable. Without in any way limiting the discretion of my Trustees hereunder, it is my wish that in disposing of such articles, they give effect to my wishes as expressed in any memorandum which I may leave with this my Will.”
[16] Popovic-Montag, supra note 13. See also Lubberts Estate (Re), 2014 ABCA 216.
[17] This concern was raised in Daniels v Daniels Estate, 1991 CanLII 6555, 1991 ABCA 288, for example.
[18] Histrop, supra note 4 at §§ 3:275, clause e.13a; 3:276, clause e.13b.
[19] See Popovic-Montag, supra note 13, citing Oosterhoff, supra note 1 at at 374-375.