Memorandum of Wishes UK (2026): What It Is, What to Include, and Why It Is Not Legally Binding

A memorandum of wishes (also called a 'letter of wishes' or 'letter of guidance') is a personal, informal document written by the person who created a discretionary trust or made a will. It is addressed to the trustees or executors and explains how the writer would like their discretion exercised: (1) PRIMARY PURPOSE — GUIDANCE FOR TRUSTEES OF A DISCRETIONARY TRUST: when a will creates a discretionary trust (where the trustees can decide who benefits and how much each beneficiary receives), the will itself typically does not — and cannot — specify exact distributions. This is the whole point of a discretionary trust: the trustees use their discretion. A memorandum of wishes fills the gap by telling the trustees: (a) who among the potential beneficiaries the testator particularly wishes to benefit (and who less so); (b) in what proportions the testator would ideally like assets distributed; (c) the ages or circumstances at which the testator would like capital to be distributed; (d) any specific wishes about how the trust assets are to be used (e.g. for education, housing, business start-up); (e) the testator's views on the investment philosophy for the trust assets; (2) SECONDARY PURPOSE — GUIDANCE FOR EXECUTORS: a memorandum of wishes addressed to executors (rather than trustees) can explain: (a) funeral wishes (location, type of service, burial vs cremation); (b) who should receive specific personal items not mentioned in the will (family heirlooms, jewellery, photographs); (c) the testator's reasons for making particular decisions in the will — useful where the will might be challenged on the grounds of undue influence or want of capacity; (d) guidance on dealing with specific situations that were not anticipated in the will; (3) ALSO USED FOR PENSIONS: a separate type of expression of wishes (sometimes called a nomination form or expression of wishes) is used for discretionary pension death benefits. This is distinct from the memorandum of wishes for a will trust (though both are non-binding guidance documents). See the guide to pension expression of wishes for detail on pension-specific nominations; (4) WHAT IT IS NOT: a memorandum of wishes is not: (a) part of the will; (b) a codicil or amendment to the will; (c) a legally binding instruction; (d) a secret trust (which has a different legal framework).

A memorandum of wishes is NOT legally binding on trustees. However, trustees are legally required to take it into account: (1) THE LEGAL POSITION — TRUSTEES MUST CONSIDER BUT NEED NOT FOLLOW: trustees of a discretionary trust have a duty to exercise their discretion properly. This means they must consider all relevant factors — including any guidance given by the settlor in a memorandum of wishes — before making decisions. A trustee who completely ignores a memorandum of wishes when exercising discretion risks being in breach of fiduciary duty; however, a trustee who follows the memorandum of wishes slavishly, without applying their own judgement about the current circumstances of the beneficiaries, may equally be in breach. The correct approach is: read and consider the memorandum; weigh it alongside all other relevant information; exercise genuine independent discretion; (2) WHY A MEMORANDUM OF WISHES IS NOT BINDING — IHT PLANNING: one of the key reasons for keeping a memorandum of wishes non-binding is IHT. If the memorandum were legally binding on trustees, it could: (a) make the trust a fixed-interest trust rather than a discretionary trust — changing its IHT treatment; (b) bring the trust property into a beneficiary's estate for IHT if the beneficiary has a legal right to demand a distribution. The flexibility (and the IHT advantage) of a discretionary trust depends on the trustees genuinely having discretion; (3) TRUSTEES CAN DEPART FROM THE MEMORANDUM: trustees can depart from the memorandum of wishes where: (a) circumstances have changed significantly since it was written; (b) the memorandum is unclear or conflicting; (c) following it would not be in the overall best interests of the beneficiaries; (d) legal or tax advice indicates a different course of action is more appropriate; (4) SECRET TRUSTS DISTINGUISHED: a secret trust arises when a testator communicates an intention to a legatee who agrees to hold the legacy on trust for others. Secret trusts ARE legally binding. A memorandum of wishes addressed to trustees of an existing discretionary will trust is fundamentally different — it is guidance, not a binding obligation.

A well-drafted memorandum of wishes provides useful guidance without straitjacketing the trustees. Key elements to include: (1) IDENTIFICATION: clearly identify yourself (the testator/settlor), the trust it relates to (including the will date and any trust deed reference), the date of the memorandum, and the trustees it is addressed to; (2) BACKGROUND AND CONTEXT: explain your situation — your family circumstances; the relationship between the potential beneficiaries; any historical context that might affect the trustees' decisions (e.g. one beneficiary has a disability; one has already received financial support during your lifetime; one is in a difficult marriage). This context helps trustees make good decisions many years after your death; (3) DISTRIBUTION WISHES: indicate: (a) which beneficiaries you particularly want to benefit, and in what approximate proportions if you have a view; (b) which beneficiaries you wish to benefit less (and why, without being unnecessarily harsh); (c) at what ages or life stages you would like capital to become available; (d) any specific uses of capital you would like to encourage (university fees; house purchase; business capital); (4) INVESTMENT GUIDANCE: indicate your general approach to investment — conservative; growth-oriented; ethical/sustainable criteria; your view on holding illiquid assets in the trust; (5) PERSONAL ITEMS: if the will does not specifically deal with personal property, the memorandum can indicate who should receive specific items — family photographs, jewellery, furniture, vehicles. This is particularly useful for avoiding family disputes over personal chattels; (6) FUNERAL WISHES: many people include funeral wishes in the memorandum of wishes — burial vs cremation; religious or civil ceremony; specific requests. Note: these are guidance for your executors, not your trustees — make sure the document is addressed to the right people; (7) REVIEW DATE: include a note reminding the trustees to consider whether the memorandum is still current. Update the memorandum whenever your wishes or family circumstances change significantly — and keep the date current so trustees know which version is most recent.

A memorandum of wishes for a will trust and a pension expression of wishes (or pension nomination form) are both non-binding guidance documents — but they serve very different purposes and are addressed to different parties: (1) MEMORANDUM OF WISHES — FOR WILL TRUST TRUSTEES: a memorandum of wishes for a will trust is addressed to the trustees of a discretionary trust created in the will. It guides how the trust assets should be distributed after your death. It is NOT a pension document and has no bearing on how your pension benefits are paid; (2) PENSION EXPRESSION OF WISHES — FOR PENSION SCHEME TRUSTEES: a pension expression of wishes (or 'nomination of beneficiaries' form) is a completely separate document submitted to your pension scheme's trustees or administrators. It guides the pension trustees on who should receive your pension death benefits (the lump sum and/or dependant's pension). Pension death benefits from a registered pension scheme: (a) are paid at the trustees' discretion (not automatically under your will); (b) do not form part of your estate for probate purposes; (c) are excluded from IHT in most cases (subject to the 2024 Budget changes from April 2027 — see HMRC guidance); (d) are NOT governed by your will — the pension trustees make their own decision; (3) THE RISK OF CONFUSION: many people assume their will or their will trust memorandum of wishes controls their pension. It does not. You must complete separate nomination/expression of wishes forms with each pension scheme; (4) KEEPING BOTH DOCUMENTS CURRENT: because both are non-binding, pension scheme trustees and will trust trustees are both entitled to depart from outdated guidance if circumstances have changed. Both documents should be reviewed whenever: (a) you separate, divorce, or remarry; (b) a potential beneficiary dies; (c) a beneficiary's financial circumstances change significantly; (d) you add or remove children or stepchildren from your estate plan; (5) PRACTICAL TIP: store both documents together with your will, and tell your executors/trustees where they are. Non-binding guidance that cannot be found helps nobody.

The confidentiality of a memorandum of wishes is an important and often misunderstood question: (1) THE GENERAL POSITION — CONFIDENTIAL IN PRINCIPLE: a memorandum of wishes is NOT a public document. It does not have to be filed with the Probate Registry (unlike the will, which becomes a public document once probate is granted). The memorandum is addressed to the trustees; it is their document to use as guidance. Beneficiaries do NOT have an automatic right to see the memorandum of wishes; (2) THE SCHMIDT v ROSEWOOD TRUST [2003] UKPC 26 PRINCIPLE: the Privy Council in Schmidt v Rosewood held that beneficiaries of a discretionary trust have a right to apply to the court for access to trust documents — including the memorandum of wishes — in appropriate circumstances. However, this is a supervisory jurisdiction, not an absolute right. Courts balance the beneficiary's legitimate interest in monitoring the trust against: (a) the settlor's wish for confidentiality; (b) the risk that disclosure would damage family relationships; (c) the trustees' duty to exercise discretion free from interference; (3) WHEN TRUSTEES MAY DISCLOSE: trustees may (in their discretion) choose to disclose the memorandum to beneficiaries — particularly if there is a dispute about how the discretion has been exercised or if transparency would assist in resolving family conflict; (4) WHEN TRUSTEES SHOULD NOT DISCLOSE: trustees should generally not disclose a memorandum that: (a) contains sensitive or hurtful comments about beneficiaries; (b) was clearly intended to be confidential; (c) could damage relationships if disclosed; (5) PRACTICAL RECOMMENDATION: when drafting a memorandum of wishes, include a specific statement about confidentiality — for example, that you do not wish the memorandum to be disclosed to beneficiaries during their lifetimes except in limited circumstances. This guides the trustees on your wishes regarding disclosure, even though it is not binding.