What is a Memorandum to a Will?

A Memorandum to a Will can be a helpful tool if the Will-maker has items they wish to gift. It is essentially a list or schedule of items and how the Will-maker wishes to distribute them. This may be something to consider for collectors, or those with numerous sentimental items that will be distributed to various persons or organizations.

There are two types of Memorandum: one that forms part of the Will, and one that does not. If the Memorandum is to form part of the Will, there are certain requirements that must be met. These requirements include that

• The memorandum must be incorporated into the Will by reference,
• it must be in writing, and
• it must be signed before the Will is executed.
• The assets/items must be clearly identifiable.

A potential downside of a Memorandum that forms part of the Will is that it is difficult to change or to add to, and the same strict rules that apply to a Will will apply to the Memorandum. It is recommended that if an item holds significant financial or sentimental value it should be included as a specific bequest in the Will rather than in a Memorandum.

The other option is a Memorandum that is not intended to be legally binding on the executor, but rather a guide directing the personal representative on how assets are to be distributed. The advantage is this form of Memorandum can easily be changed by the Will-maker, and they may add and remove assets/items as they go. However, because this form is a guide for personal representatives, not a requirement, there is a chance that the assets/items may not end up with who the Will-maker intends them to.

Read our Trusts & Estate Law articles for more information. You can also read our How to Make Changes to a Will Article.

If you’re not sure whether a Memorandum or a Bequest would be better contact Heath Law in Nanaimo to help you with your Will.