I get it. You have many items that may not have a great monetary value, but are priceless to you. You want your beneficiaries to receive these items, but do not want to include the items in the Will, for fear that it may seem frivolous to me, or cause the Will to be too lengthy. I understand. The “things” that we acquire over our lifetime have great sentimental value even if at times there is not great monetary value. Often it is these items of little monetary value that cause the greatest fights in the course of administering an Estate.
In the course of preparing a Will I am often asked if, after the will is signed, a list can be prepared items of personalty and those designated to certain persons. The short answer is – not if you want the gift of the personalty to be legally binding.
Types of Will Memorandums
There are two types of memorandums. The first is a precatory will memorandum – which expresses a wish of the testator and is not legally binding. The second is a legally binding memorandum, which is a memorandum that must be in existence when the Will is signed. It can’t be amended without amending the Will. A binding memorandum is a part of the Will and is incorporated into the Will by reference.
Many people are comfortable having a non-binding, or precatory will memorandum. If you chose this route, you must be aware that you are relying on your executors and your beneficiaries to honour your wishes. They are not legally obligated to do so. By having a non-binding memorandum, you will never be certain that your cherished possessions are passed on to the beneficiary that you intended.
The only way to ensure that your personalty is given to the person to whom you intend, is to either include the gift in the body of your will, or in a binding memorandum that was signed before your Will and referred to in your Will. Your executor will be obligated to carry out the terms of the Will and the binding memorandum.
My advice is, whether you chose to do a binding or a precatory will memorandum, you have your lawyer assist in its preparation.