A “legal memorandum” is incorporated by reference into the Will and, as such, is legally binding upon the executor of the estate. The memorandum must be prepared and executed prior to the signing of the Will and also must be clearly identified and referenced in the Will. Such a memorandum forms part of the Will and is subject to the same rules as the Will with respect to making amendments and revocation. In general terms, a legal memorandum is preferable in situations where the property is of significant value, where changes to the memorandum are unlikely, and/or where there is a desire or need to impose a legal obligation on the executor to adhere to the memorandum’s instructions.
The other type of memorandum is knows as a “precatory memorandum”, and it is not legally binding upon the executor. This type of memorandum can be prepared and executed at any time after the Will has been executed, and no specific reference is made in the Will to any specific memorandum. Instead, a provision is generally included in the Will stating that if the testator prepares a precatory memorandum then it is the testator’s wish that the executor and beneficiaries abide by and honour that memorandum even though there is no legal obligation to do so. The advantage of this type of memorandum is that it can be changed at any time by the testator without needing to comply with the strict requirements that pertain to a legal memorandum. Generally, a precatory memorandum is appropriate in situations where the property at issue is more keepsake in nature and has greater sentimental than monetary value. As well, a precatory memorandum may make sense where a testator is uncertain what gifts he or she intends to make but wants to finalize his or her Will in the meantime.
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