Duhaime's Law Dictionary


Memorandum of Articles Definition:

A written direction to accompany a will, as to the distribution of specific items of property.

Related Terms: Will, Precatory Words

A written document designed and intended to be read in conjunction with a will and which specifies the distribution of specific items of property to specific individuals.

The process and technique of a memorandum of articles is problematic to the law because a will is intended to be an all-in, stand-alone document especially as to the distribution of property. In fact, in adition to the appointment of an executor, that is the point of a will.

When reference is made to an outside document especially one which does not necessarily meet the technical requirements of a will (eg. witnesses etc.), on the face of it, this causes a dilemma for the executor. The function of the executor is to follow the terms of the will. If, for example, an asset of substantial value is specifically distributed in a side document such as a memorandum of articles, the beneficiaries of the will would quite reasonably complain that it is the will that ought to be followed and not some side document.

The most common way to incorporate a memorandum of articles within the body of a will (to ensure that those particular items go to the specifically named individuals), is to refer to it by date and use wording that directs the executor; here this is just sample wording:

"I direct my executor to deliver the articles of personal or household use or jewelry or furniture or ornament described in the Memorandum of Articles dated (insert date) in accordance with that Memorandum."

Common items of property which are covered by a memorandum of articles are family heirlooms (although they are just as readily, if not more properly provided for in estate documentation, as a bequeath within the will).

The general law as to the use of a Memorandum of Articles can be different from one jurisdiction to another especially where there might be a statute which specifically either provides for it under certain conditions only, or prohibits it. With that caveat emptor, the following extract of law is typical but only a sample of the law in this area of estate law in common law jurisdictions:

"For the document to be a valid testamentary document, it must be in writing and the will-maker must sign it before the will is executed and it must be specifically incorporated in the will by reference. The lawyer should advise the client that it is necessary for the assets to be clearly identified in any memorandum incorporated by reference because the memorandum, as a testamentary document, is subject to the same strict rules of construction that apply to a will. Any changes to such memoranda require an amendment to the will and therefore, the lawyer should advise the client of the limitations of the use of such memoranda.

"It is also possible to  create a memorandum that is not intended to be a legally binding testamentary document, which can be freely amended by the will-maker as he or she desires, without the involvement of a lawyer (duhaime.org ed. note: see Legal Definition of Precatory Words). These memoranda can be provided to the trustee to guide them in the exercise of their discretion in respect to the distribution of assets in specie. Such memoranda can go beyond guidance about dealing with distribution of specific assets, such as advising as to the principles that could be used on the exercise of the power of encroachment on income or capital for the benefit of a beneficiary."1


REFERENCES:

  • NOTE 1: Law Society of British Columbia, Wills, Professional Legal Training Course 2013, at page 28.

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