How to navigate life after death: wills, wishes, and warring executors

Charles Russell Speechlys Succession Watch: Episode 4

“To be honest, Dad sounds amazing – I’d like to have met Dad.” - Shiv

There is a lot to cope with following the death of Logan Roy in episode 3 and the immediate aftermath covered in episode 4. Marcia is back from shopping in Milan. Roman has pre-grieved. Kendall may or may not have been named as a successor CEO of Waystar Royco. Shiv is pregnant and Tom is “here to serve”.

This week, we will focus on what to do in the immediate aftermath of the death of a family member, how to handle letters of wishes and also consider the role of executors when someone dies.

What to do when someone dies

“For some of us it’s a sad day, but for others it’s coronation demolition derby.” – Shiv

The episode opens the day after Logan’s death. Willa remarks “They say it’s bad to make big decisions straightaway right after…” but matters progress quickly due to the pressing decision about who will take over as the interim CEO of Waystar Royco.

When someone dies, family and friends normally have to deal with the immediate practical arrangements, such as registering the death and starting to make arrangements for a funeral to take place. Even for people like the Roys, who have legions of staff to assist, it can feel overwhelming. The executor may also need to take urgent steps to protect assets from disappearing, such as letting banks and financial institutions know about the death or changing passwords/access to the safe or vault.

It is also important to tell people about the death. In the case of Logan Roy, the numerous obituaries and headlines have facilitated this for the Roy family, but there would still be a need to ensure that this is dealt with properly and the right people told sensitively. Connor is told about his father’s death much later than his siblings, but the situation was of course delicate as matters unfolded on his wedding day.

It is not essential to locate someone’s will straight away after their death, but it may be helpful to do so as soon as possible, because the will or an accompanying letter of wishes may set out the deceased’s wishes for their funeral, for example, and to stop anything untoward happening to original documents. It is also helpful for executors to be involved from an early point.

Early in the episode, Frank tells Karl that he has been appointed as an executor of Logan’s estate and that he has been handed a “rather worrying piece of paper”, taken from Logan’s private safe.

Letters of Wishes

“We don’t know its status and I mean, it doesn’t hold any legal value. We wanted you to know, but we wouldn’t want it to feel more significant than it should.” – Gerri

A letter of wishes is a letter written by a testator to accompany a will, to guide the executors where there is an element of discretion for the executors when making a gift. A letter of wishes may also be written by a settlor of a trust, to guide the trustees as to how the settlor would like the trust to be administered.

A letter of wishes is not legally binding on the trustees/executors and often accompanies a discretionary trust, where the trustees may be in need of guidance. It will be legally significant however and Gerri isn’t quite right to dismiss it outright (either because this really is not her speciality or because she has her own agenda). An executor/trustee should take the wishes of a testator/settlor into account during their decision-making process. They must consider them and in practice do often follow them, unless there is a particular reason not to. At the same time, the weighting of the wishes will be at the discretion of the trustees and they must have taken into account all relevant considerations (and no irrelevant ones) when reaching their decision. It is slightly concerning too that the letter is diminished by Frank to be “A piece of paper, a side-letter”.

The letter appears to have been signed by Logan and we can see from the snippets shown on Kendall’s phone in the episode’s closing moments, that this letter of wishes was intended to be added to Logan’s “official letter of wishes” and should be used “to settle certain affairs”. So the executors should start with the Will itself, then consider the official letter of wishes, this document and other factors such as the wishes of the beneficiaries. We are a long way off knowing what the executors/trustees should do.

The letter includes “A mix of business and personal, a watch for Colin” (who Logan labels his “best pal” in series 4 episode 1). It also sets out Logan’s funeral requests, including that he would like a Catholic funeral and the hymns he has requested. None of this is unusual for a letter of wishes and, especially in the case of a family like the Roys, who cannot agree on anything, it can be sensible to be clear about these wishes.

There are several advantages to composing a letter of wishes, including that the letter is confidential, and the testator can change the letter of wishes any number of times after making the will, without formality (including by way of a pencil mark-up, as we learn Logan has done here).

The letter names Kendall as the successor CEO of Waystar Royco. This has been underlined or – as Shiv suggests – crossed out. Kendall states “He underlined recently” and Shiv replies, “Underlined or crossed out?”. Where there is genuine ambiguity about what a testator intended, there are particular rules for interpreting a testamentary document’s correct construction (see Marley v Rawlings [2014] UKSC2). What matters is what Logan intended when he created or amended the document. The starting point is the document itself. In some circumstances, extraneous evidence can be considered to establish testamentary intention including the facts known to Logan at the time.  Here, it seems unlikely such evidence would point in Kendall’s favour, given his volatile relationship with Logan.

A letter of wishes can deal with various different matters. Logan’s letter of wishes also covers his thoughts on the tax treatment of investment artwork in storage – Roman tells us that Logan owned multiple works by Paul Gauguin, which are in a vault in Switzerland and have never been seen.

We also know that this is not the only letter of wishes which Logan has made. Further zooming has revealed that the letter opens: “To my executor and family, The following is a record of additions and clarifications to be added to my official letter of wishes in the event of my passing.”

It is hard to tell where the letter of wishes will take us. We know there is an “official letter of wishes”, which at least tells us that this letter of wishes is later than the “official” version. Some speculation ensues between Gerri, Karl and Frank about the age of the document, and when the handwritten amendments were added onto it. Trustees rightly give great weight to the settlor’s wishes, either expressed during the settlor’s lifetime or recorded, usually in documentary form, before the settlor’s death (see Pitt v Holt [2011] STC 809).

Whilst we do not know when the letter was written, it was certainly composed later than the “official letter of wishes” which this letter references. Recent court decisions (e.g. Kain v Public Trust [2021] NZCA 685– although noting that this is a New Zealand case) have indicated that later letters of wishes, which contradict the wishes set out in an earlier letter, will be preferred as indications of a settlor’s continuing intention. provided that they are not inconsistent with the terms of the settlement and its purpose. Family history, background and context are also matters to be weighed in the executor/trustee’s assessment of a settlor’s changing wishes.

We have already commented on the question of Logan’s capacity which has been flagged by recent episodes (see our Succession: Episode 2 article). It may be that this letter of wishes could be challenged on the basis of a lack of capacity or undue pressure (as Kendall showed, at the end of the episode, that he is happy to resort to coercion when it suits him).

In terms of timing, this is just the day after Logan’s death. The family members and close circle would understandably like some immediate clarity and there is urgency as the board will be electing a new CEO in a matter of hours. As letters of wishes can be contentious documents, it may have been short sighted (and naïve) of Frank to immediately discuss the letter with various people; after all, there is no automatic right for beneficiaries to see a letter of wishes (as confirmed in Breakspear & Ors v Ackland & Anor [2008] EWHC 220 (Ch)). Sometimes they are never disclosed.

A settlor can state a preference that their letter of wishes should remain confidential (although this may be overridden as was the case in Foreman v Kingstone [2005] WTLR 823) and often a letter of wishes is kept confidential from beneficiaries due to its sensitive nature, or only an extract may be disclosed.

Role of an executor in the early stages post-death

“We were joking that it could fall in the toilet.” – Frank “Yes, well that is a very funny joke.” – Gerri

Frank, a long-time trusted advisor of Logan, reveals that he is an executor of Logan’s affairs. We don’t yet know what authorises this appointment, but it sounds like Logan has made a will. Any such will may well appoint other executor(s) in addition to Frank – although the letter being addressed to “my executor” (singular) suggests that it may just be Frank. If there is a Co-Executor then Frank should not be taking decisions about the Estate, such as disclosing a letter of wishes, unilaterally.

The role of the executor is to administer the estate of someone who has died. In the early stages post-death, an executor should gather together the necessary information about the deceased’s estate. Frank’s position as executor is both in his capacity as a professional – he is a lawyer and so will be considered a professional executor, but also a confidante to Logan and friend of the family.

Frank will have to manage potential conflicts carefully. Frank describes the letter of wishes as “a rather worrying piece of paper”. He is a member of the ‘old guard’ of advisors involved in the running of Waystar Royco and clearly has an interest in continuing with his responsibilities within the company. Gerri states that Frank would hold “a lot of sway” with the board on who should take on the interim role as CEO and Frank is supportive of Karl or Gerri taking on the interim CEO role, so that this group can “take control of the plane”. He may also have his own shares in Waystar Royco. He needs to think carefully about his conflicting roles and whether he is the best person to act.

Karl jokes about destroying the letter of wishes – although this joke seems to have underlying sincerity to it – “you are speculating in a comic mode”. Karl is “half-way in on a Greek island with my brother-in-law”. The letter naming Kendall as CEO is contradictory to what members of the old-guard would want – but the decision of who should proceed as interim CEO of Waystar Royco ultimately lies with the board. Frank is not entitled to sit on the board in Logan’s place, simply by virtue of his appointment as executor.

Marcia is back

“We spoke every morning and afternoon, so I came as soon as I heard…We were very close” – Marcia

Marcia is back in New York and greeting the guests arriving at her and Logan’s apartment. She tells Kendall that she and Logan “were very close”.

She quickly accepts an offer from Connor for the sale of the apartment for $63 million. Under English law, Marcia would only have authority to do this if the apartment was owned as joint tenants with Logan and his share passed to her by survivorship.  Otherwise, the sale would be a matter for the executors.  Even if Marcia is an executor, she would need agreement of her co-executor, Frank, to enter into a contract relating to the sale of the apartment (Section 2(2), Administration of Estates Act 1925). In England and Wales, the executors would also need to have obtained the grant for the transfer to be made. If Logan’s Estate does have an interest in the property, then the Executors need to be sure they have got the best value for their beneficiaries and you would expect to see a more rigorous valuation process. As such, Connor may not be able to hold Marcia to this agreement (despite the spit handshake).

It is hard to tell what involvement Marcia will have following Logan’s death and whether she will have a role as executor or perhaps as a trustee of the family trust(s). In series 3 episode 2, Marcia had some “requests” before she would return publicly to her marriage with Logan, following his affair with Rhea. These were that she wanted her role on the trust to be finalised, and for her son (Amir) and daughter to be taken care of and her financial position to be taken care of. It is unclear what stage those discussions got to.