Precatory instruments, such as letters of wishes and precatory memoranda, can be valuable estate planning tools, even though they are not binding.[1] As noted in last month’s Solicitor’s Tip, there are a number of advantages to including precatory instruments in an estate plan, including increased flexibility and potential cost savings, as precatory instruments provide clients a means to update their wishes without executing a new will.[2]
Notwithstanding the advantages that accompany precatory instruments, it is important to remember that if they are not carefully drafted, they could end up derailing an estate plan. This month’s Solicitor’s Tip sets out several drafting tips which, if followed, ought to ensure that precatory instruments work in an estate plan as intended. First, the Tip explains why precatory instruments should be prepared by counsel and then describes precautionary measures that can be taken to ensure that precatory instruments do not revoke client wills. Lastly, we address the importance of using clear language consistently to ensure that a precatory instrument is interpreted as non-binding.
Counsel Ought to Draft Precatory Instruments
It is not wise for clients to prepare precatory instruments themselves. Depending on how a precatory instrument is drafted, there is a risk that it could revoke the client’s will. For example, this could occur if:
- a precatory instrument uses language that is not actually precatory,
- it is executed in compliance with the statutory formalities of execution applicable to wills, and
- the precatory instrument was created after the client’s will was executed.
Under these circumstances, a court could conclude that the precatory instrument is, in fact, a will, even if the client’s intent was simply to direct the distribution of their personal effects, and that the client’s will has been revoked by the instrument.[3]
Alternatively, a court could conclude that a precatory instrument is a holograph codicil. For example, in Hawes (Estate of) v Hawes, the Nova Scotia Supreme Court held that a letter written by the testator after she had executed her final will constituted a binding holograph codicil, notwithstanding argument that the letter merely expressed the testator’s wishes, and that there was no certainty of intent.[4]
A precatory instrument could also revoke a will, even if it does not comply with the statutory formalities applicable to wills. On an application under section 21.1 of the Succession Law Reform Act, a non-compliant precatory instrument could be validated as a will or a codicil, so long as the court is satisfied that the document is authentic and expresses the client’s fixed and final testamentary intentions.[5]
Given these risks and the potential impact that they could have on a client’s estate plan, all precatory instruments should be drafted by counsel.
Steps to Prevent a Precatory Instrument from Revoking or Altering a Client’s Will
If a precatory instrument is drafted to clearly state that it is not a testamentary instrument and is non-binding, it is improbable that it would be interpreted as revoking or altering the client’s will. Counsel can also take additional precautionary measures to minimize the risk of a precatory instrument revoking a will. For example:
- If the client is executing their will and signing the precatory memorandum on the same day, the memorandum can be completed first and the will executed afterwards, as a will typically will not be revoked by a document that was created before the will was executed. The order in which the documents were completed can even be included in the memorandum.[6]
- The precatory document can be drafted so that it does not contradict the terms of the client’s will. This is particularly important if the client intends to revise the precatory instrument from time to time after their will has been executed. Ideally, the document would expressly state that it is not intended to revoke, amend, or alter any testamentary dispositions in the will.
Making it Clear that a Precatory Instrument is Non-Binding
When drafting a precatory instrument, the language used must clearly communicate that the instrument is not intended to be binding. Simply selecting a title such as “Precatory Memorandum” or “Letter of Wishes” will not make a document precatory if its substance sets out a direction rather than a wish.
For example, in Maurer Estate, the BC Supreme Court held that a document titled “letter of wishes,” read in conjunction with the testator’s will, expressed testamentary intention rather than a non-bindinghope.[7] The court also accepted that whena document is read as a whole, it is possible for words which “ordinarily connote permissive (i.e.,need not be mandatory) signification” to be interpreted as revealing “an intention to operate as imperatives”.[8] Justice Forth also affirmed that “polite language may actually convey a charge or demand to the trustee”, in which case the document will not be precatory.[9]
To ensure that a precatory instrument operates as intended, it should expressly state that it is intended to be precatory and non-binding. For example, a number of precedent precatory memorandums in Estate Planning Precedents: A Solicitor’s Manual include the following statement: “For greater certainty, this memorandum is not intended to be a testamentary instrument. Rather, this memorandum is intended to be precatory and non-binding on my personal representative(s).”[10]
Counsel may also want to consider including language which indicates that the client intends to revise or replace the document as their wishes evolve over time. Such wording would affirm that the document is not intended to express the client’s fixed and final testamentary intention, which is required to create a binding testamentary instrument.[11]
Conclusion
When used appropriately, precatory instruments can provide clients with a measure of flexibility when crafting their estate plans. However, in light of the detrimental impact that a poorly drafted precatory instrument may have on the client’s estate plan, it is imperative that these instruments are drafted with care. Counsel ought to prepare these documents themselves, ensure that they are consistent with the client’s will, and use language that clearly communicates their non-binding nature. In this way, counsel can significantly reduce the risk that a court will later characterize a precatory instrument as a will, codicil, or trust. Careful drafting helps ensure that a client’s wishes remain just that – non-binding expressions of preference – without inadvertently giving rise to unintended legal consequences.
[1] For the purposes of the article, the term “precatory instrument” is used as an umbrella term that encompasses both letters of wishes and precatory memoranda.
[2] See Suzana Popovic-Montag, “Tips for Estate Planning with Precatory Memorandums,” Solicitor’s Tips (1 June 2026), online (blog): <https://hullandhull.com/2026/06/solicitors-tip-june-2026-tips-for-estate-planning-with-precatory-memorandums/>.
[3] 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.
[4] 2024 NSSC 161 at paras 52-53.
[5] R.S.O. 1990, c. S.26, s. 21.1.
[6] See, for example, Lindsay Histrop, Estate Planning Precedents: A Solicitor’s Manual (Toronto: Thomson Reuters, 1995) (loose-leaf) at § 3:677. The sample memorandum to trustees pertaining to gifting personal articles states: “This is the Memorandum referred to in paragraph (paragraph number) of my Will which I intend to sign today.”
[8] Ibid at para 63, quoting Dennis Pavlich, Trusts in Common-Law Canada, 4th ed (Toronto: LexisNexis, 2024) at §4:01.
[9] Ibid.
[10] Histrop, supra note 6 at §§ 3:671, 3:676, 3:677, 3:679.
[11] Maurer Estate, supra note 7at para 89. The court noted in this case that if the purpose of an instrument like a letter of wishes is to give the testator flexibility to change their mind without having to execute a new will each time, it would undermine the policy rationale of the will validation power to find that such an instrument represents the testator’s fixed and final instructions.