Letter of Wishes: Guiding the Trustee

A letter of wishes for a trust is a private, non-binding note in which the settlor explains to the trustee how they would like the trust to be run. It is the usual companion to a discretionary trust, where the trustee has real choices to make and the written deed deliberately leaves them open. This page covers what the letter is, what weight it carries under Mauritian law, and how to write one that actually helps.

What a letter of wishes is

The trust deed is a formal legal instrument. It sets out powers, definitions and limits, and it is drafted to be precise and durable. What it rarely captures is the human background: who in the family needs support, who is financially cautious or reckless, what the settlor would regard as a fair outcome.

A letter of wishes fills that gap. It is usually a separate document, addressed to the trustee, signed and dated by the settlor and kept with the trust records. It does not create rights and does not change the deed. Its purpose is to give the trustee context so that discretionary decisions reflect what the settlor had in mind.

What belongs in the deed itself, such as the trust's name, the powers granted and the identity of the beneficiaries, is covered in what a trust deed contains. The letter deals with something different: guidance on how to exercise the powers the deed grants.

Does a letter of wishes have legal weight in Mauritius?

Not in the way a deed does. The Trusts Act 2001 does not make a letter of wishes binding on a trustee, and the trustee remains the legal owner of the trust property, bound by the terms of the deed and by the duties the law imposes. The letter is guidance, not an instruction the trustee must follow.

In practice, however, a conscientious trustee takes it seriously. A trustee exercising a discretion is expected to consider relevant matters, and the settlor's stated wishes are plainly relevant. Departing from them without a good reason would be hard to explain to beneficiaries. See duties of a trustee toward the family for the standard a trustee is held to.

Two limits follow from this:

• If the letter contradicts the deed, the deed prevails. A letter cannot add a beneficiary or widen a power.
• If the letter is written as a binding command, it risks undermining the trustee's real discretion. In extreme cases it can feed arguments that the structure is not genuine, a risk explained in sham trusts and how much control a settlor can keep.

Whether a particular letter would be treated as a relevant consideration, or how a court would view it in a dispute, depends on the facts and should be reviewed with an adviser.

Letter of wishes vs trust deed vs will

The comparison with a will is covered further in trust or will for passing on assets.

What to put in a letter of wishes

There is no prescribed form. Useful letters tend to cover the following.

Who should benefit, and in what order

Describe how you see the family: which beneficiaries have priority, which needs matter most (education, housing, health) and which situations should prompt help. Explain the reasoning rather than just listing names.

How and when to distribute

Say whether you prefer regular income, lump sums at certain stages or discretion case by case. If you would like a young beneficiary to receive more as they mature, say so and explain why. The mechanics of paying out are in how trust assets are distributed to beneficiaries.

Dealing with difficult situations

A beneficiary with debts, a marriage in difficulty or an addiction problem is exactly where a trustee needs direction. The letter can state that you would want support to take the form of paying bills directly rather than cash. Protective terms of this kind are discussed in spendthrift trusts.

Investment and property preferences

If the trust holds a family home, a business or an asset with sentimental value, say whether you would want it retained or sold under particular conditions. Consider passing on a family business if that applies.

The role of the protector

If the trust has a protector, the letter can explain how you hope that role will be used. See powers of a trust protector.

How to write one well

A few practical points:

• Use the language of preference. Phrases such as "I would like" or "I hope" fit better than "the trustee must".
• Give reasons. A trustee who understands why you want something can adapt sensibly when circumstances change.
• Avoid unrealistic detail. Rigid instructions about events decades ahead tend to age badly.
• Do not name outcomes that clash with the law. For example, a letter cannot override rights that exist under the rules on forced heirship.
• Keep it separate from the deed. The deed may be shown to beneficiaries or financial institutions. The letter can stay private.

Updating and revoking the letter

Because it is not part of the deed, the settlor can replace a letter of wishes at any time without formal amendment. A new letter normally states that it supersedes earlier ones. Trustees should keep the older versions on file, because they can show how the settlor's thinking evolved.

After the settlor's death the letter cannot be revised, so it is worth reviewing as part of a periodic check. The annual trust review checklist is a sensible moment. What happens to the trust itself at that point is explained in what happens when the settlor dies.

Can beneficiaries see the letter?

This is one of the more contested questions. Beneficiaries have certain rights to information about the trust, but whether a letter of wishes falls within them depends on the deed, the circumstances and the applicable law. Because the letter often contains frank comments about family members, settlors should write on the assumption that it might someday be read by a court or a beneficiary, and keep the tone measured. For the general position on information rights, see how a beneficiary can request trust information.