A Memorandum to a Will is a separate document from the Will which may convey bequests, instructions or wishes to the Executor. A Memorandum to a Will may be either binding or non-binding.
A binding Memorandum may be incorporated by reference into the Will, if it meets the following criteria:
- The document must be in existence when the Will is executed;
- The Will must refer to the document as an existing document; and
- The Will must clearly identify the document.
A document which is incorporated by reference into the Will actually forms part of the Will and therefore cannot be modified without making a codicil or new Will which complies with the Wills Act.
Alternatively, a non-binding Memorandum, which is simply a list of wishes, may be created without complying with the formalities of the Wills Act and may be altered from time to time. A non-binding Memorandum may be useful to suggest the gift of lower-value items, such as family heirlooms. It may also give funeral or burial requests and may provide trustees with background information or considerations in exercising their discretion pursuant to the terms of the Will. The primary advantage of using a non-binding Memorandum is that the will-maker may amend this document without having two witnesses. A non-binding Memorandum generally does not need to be disclosed in the probate procedure.