Christmas is coming at Pritchard & Co. The tree is up. Pico, our mischievous Elf on a Shelf, is creating Christmas mischief. The sound of a Christmas inspired song playlist fills the lobby. As I have been walking through the lobby, listening to the songs, I have noticed there are a lot of Christmas songs with the word “wish” in them. From “We wish you a Merry Christmas” to “Feliz Navidad” and even Mariah Carey’s Christmas Classic (don’t judge me) “All I want for Christmas is you” the word wish is in the lyrics.
You might be surprised to learn that in estate planning, lawyers sometimes use the word “wish”, or “an expression of wishes” in some estate planning documents. You might ask, “Les, are wishes binding?” The answer is no, but there are cases where it makes sense to use them.
In Wills, we use a term under the heading Personal Possessions that says:
I may leave instructions in the form of a letter detailing my wishes as to the distribution of my personal and household articles. This letter will be left with my personal papers. I direct my Personal Representative/Executor to carry out the instructions contained in this letter, even if they are not valid as testamentary dispositions.
The wording asks the Personal Representative to follow the direction of the letter, even if it is not legally binding. You may wonder why a Will Maker would want this. The wording gives flexibility to the Will Maker to make instructions, like a letter, list or memo, and make updates from time to time, without incurring the legal costs of amending the Will each time this is done. Household effects, in many cases, do not have a high monetary value. The (monetary) risk to the estate is low if the Personal Representative does not follow the instructions.
If a Will Maker has higher value personal items, like artwork, antiques or vehicles, or items of sentimental value, like a grandparents’ watch or wedding ring, that they want to go to someone specific – those gifts should be written in the Will in a legacy clause to ensure the direction is legally binding on the Personal Representative.
The term wishes is also used in Personal Directives (the document where you appoint someone, called your Agent, to make personal and health decisions if you lose mental capacity).
The wording we use states:
If, in the opinion of my Agent, this Directive does not give clear instructions that are relevant to the health care decisions to be made on my behalf, my Agent must make a decision based on my wishes, beliefs, and values.
In the context of the Personal Directive, your Agent may be making decisions about medical treatment, or placement into a nursing home facility. The Personal Directive is a very broadly focused document. It is unable to specifically address every medical or personal decision an Agent may face years and years into the future if you lose mental capacity. This wording directs the Agent to consider what the maker would want, ie: in the case of my own Personal Directive, “what would Les want or do”, if he had the mental capacity to make the decision. It allows the Agent guidance in how decisions should be made in a general sense.
It is important for legal documents, including estate planning documents, to be certain. Most wording in estate planning documents, includes expressed direction or purpose as these words are legally binding. While wishes are not the same as expressed purpose, there are good reasons why lawyers may include them in some situations.
As it would sound very lawyerly, if not just weird, for me to say “I express my stated purpose that you enjoy the holiday season”, let me say instead, on behalf of Pritchard & Company, I wish you a Merry Christmas and all the best in 2026.
Les Scholly helps you navigate the turning points of life. He is a partner with Pritchard & Co. Law Firm, LLP and member of the Society of Trust and Estate Practitioners (STEP).
Contact Les at 403-527-4411 or at lscholly@pritchardandco.com
