Letters of wishes with wills are not entirely uncommon. However, the extent to which such wishes are or can be binding on the executor needs consideration. This is addressed in Estate of Davies where McHerron J considers that validation of the “last wishes” was not required as subject to the comments below the “last wishes” met the requirements of section 11 of the Wills Act:

[10] In my view, the “last wishes” document complies with the requirements in s 11 for the validity of wills. It is in writing and signed by the will-maker. And, as is clear from the words they have used, and Ms Alderson’s and Ms Johnson’s affidavits, the two witnesses each signed the document in the will-maker’s presence after he confirmed he had signed the document earlier. The only matter that requires correction
in that document is the date of Mr Davies’ declaration he was of sound mind which, having considered the evidence, I will correct under s 31 of the Act to 15 April 2024.

[11] I am satisfied that the “last wishes” document expresses Mr Davies’ testamentary intentions. It is clear he turned his mind to his final wishes, attempted to ensure the changes were “legal” in a changing situation, and was of sufficiently sound mind and body to make the wishes he expressed.

Reading the documents together

[12] It is evident to me Mr Davies intended the two documents to be read together. He referred to “[a will]” he “did years ago” (9 July 2013 will), and his desire to “make sure [his list of wishes] is legal”. His communications over his phone label the 2024 document his “last wishes”. At a different time, he describes this document as “a list of last wishes and where I want my stuff to go. This list is to help you”. It is appropriate to regularise the 9 July 2013 will, and to confirm the validity of the 2024 “last wishes” document to give effect to both as the best expression of Mr Davies’ wishes.

References

• Wills Act 2007, sections 11, 14 and 31
• Estate of Davies [2024] NZHC 3213