What is a Memorandum to a Will?

By on Aug 1, 2017

What are they?

  • They are a special document that goes with a will
  • They are used to give personal possessions to loved ones; they are useful for letting an Estate Trustee know who you want to receive certain items

There are two types of Memoranda (not the technical terms):

  • Discretionary
  • Mandatory

The differences are:

  • The main difference between the two are that the “Mandatory” kind is referred to in the will and must be attached to the will to be able to probate the will
  • What I call a “Discretionary Memorandum” is also usually referenced in the will, but, if it is, special wording is included in the will to clarify that it does not have to be attached to the will for probate purposes

Why do people care about them?

  • Testators often have deep personal attachment to personal possessions
  • Some people have heirlooms like a Rolex, grandfather clock, rings, or other jewellery that has been passed down from generation to generation
  • Some items are valuable:
    • Stamp collection
    • Sports memorabilia
    • Tools
    • Musical equipment and musical instruments
  • Estate trustees generally appreciate the guidance that they receive through a Memorandum
  • Personal possessions are often the most difficult to deal with and raise questions like:
    • Do I sell the item? If so, how?
    • Do I give the item away?
    • Do I throw the item in the garbage?
    • Do I value the item? If so, how do I value it?

Tips for Preparing a Memorandum

  • Call the document “Memorandum”
  • Write your name on it
  • State the date that it is written
  • Sign it
  • Identify each item as clearly as possible and put the full name of the person who is to get the item and what the person’s relationship to you is
  • If you have an appraisal of an item that you refer to in the Memorandum, put the appraisal with the Memorandum
  • Take photos of the items and put the photos with the Memorandum with the name of the item and recipient on the back of the photo
  • Send a copy of the Memorandum and any updates to the lawyer who prepared the will
  • If making a second Memorandum, state whether it is to replace or add to all or part of the existing one
  • Sign the Memorandum with your usual signature

Note that this article is intended to provide general information with respect to memoranda to a last will and testament. For information specific to your particular circumstances it is important to consult with a lawyer in your particular jurisdiction about your particular circumstances.