Advice for an executor of a will appreciated

System

Mojisola wrote: »

I think this refers to child, grandchild, great-grandchild, etc. Nieces and nephews don't count.

Having had a quick read of the section in the Wills Act I agree. It is referring to DIRECT descendants of the deceased so there should be no payment to the children of the deceased niece/nephew.
However the suggestion of a good will payment is definitely out of the question unless all other beneficiaries agree. Being the executor he does not have any authority to make a unilateral decision to deviate from the will.

mountainofdebt

The point is that having read the link previously posted I would agree that if the will had stated nieces and nephews then the deceased niece's share would have gone back into the pot but as the deceased has been named then, to my legally untrained mind, the share then goes to the daughter of the deceased niece.

OP - have you legal cover on your house insurance etc? Perhaps if you have then it might be worth giving them a ring to see what the position is?

Mojisola

mountainofdebt wrote: »

for what's its worth, if I was your OH, I wouldn't want to take the advice off a bunch of strangers who haven't seen the original document and won't have to face the consequences if he gets it wrong (you never know the daughter of the deceased niece may also assume she's going to inherit)

Sound advice. I would hope that no-one uses the comments made on any forum as absolute truth. Replies should only be used as information gathering. In any legal matter, always get professional advice.

System

I have found the following

Unless there is a provision to the contrary in the will or the gift is made to fulfil a moral or legal obligation (e.g. to repay a debt which has been discharged under the law of bankruptcy or which is statute barred), a gift made by will to a person who died before the testator or to an organisation which no longer exists at the time of the testator’s death fails and does not take effect. An exception to this general rule is contained in Section 33 of the Wills Act 1837 (as amended). By this section a bequest to a descendant of the testator who dies before the testator, leaving a descendant who is living at the testator’s death, will take effect as a bequest to the descendant who is living at the testator’s death, unless the will shows a contrary intention.

Still points to the deceased beneficiaries descendants not getting anything

jackyann

Commiserations - as my mum used to say "no good deed goes unpunished".
No-one here has yet mentioned seeking the advice of the Probate Office. I found them very helpful, and that is where I would begin.
Should the advice be that it is your husband's decision, as the executor, then I would say that Auntie chose him as executor because she trusted his judgement (I have done something similar). So I would write a letter to the cousins, stating that he has made his decisions on that basis.

londonsurrey

Nenen wrote: »

Did you have any children at the time of MIL's death londonsurrey? If so, then, unless the will specifically stated to the contrary the link sleepless saver posted suggests that your children should have shared their deceased father's share of MIL's estate.

No, there were no children. But thank you for caring and doublechecking.

Savvy_Sue

Mojisola wrote: »

I think this refers to child, grandchild, great-grandchild, etc. Nieces and nephews don't count.

Are they not 'remoter descendants'? I don't know, but ...

mountainofdebt wrote: »

for what's its worth, if I was your OH, I wouldn't want to take the advice off a bunch of strangers who haven't seen the original document and won't have to face the consequences if he gets it wrong (you never know the daughter of the deceased niece may also assume she's going to inherit)

What I would do is say to all the nieces and nephews that as he is unsure of the legal position he's going to take legal advice and that the cost of which will come out of the pot and see what their reaction is

Good advice, AND I'd start with the probate office too, because their advice will be free.

The point about not being able to make a 'good' payment from this will is also a good one. Under the circumstances I think I would definitely write to all of them, say that he is consulting the appropriate authorities and that he will update when he is good and ready. Anyone wishing to take their own legal advice (and pay for it themselves) is welcome to do so, but if he has to be ready to defend a legal action then no payment can be made any time soon. Since this threat has already been made matters will be delayed unless the threat is withdrawn.

I don't know if that sounds reasonable, but it might give pause for thought.

mountainofdebt wrote: »

OP - have you legal cover on your house insurance etc? Perhaps if you have then it might be worth giving them a ring to see what the position is?

Or if you're a union member then you can usually get a free half hour of very basic legal advice over the phone.

Mojisola

Savvy_Sue wrote: »

Are they not 'remoter descendants'? I don't know, but ...

Child, grandchild, etc, are the bloodline. Nieces, nephews, cousins, etc, are not direct descendants.

daska

OK, this is way outside my experience but... I'm going to throw (what might be) a spanner in the works and ask how they should be defining descendant. Because, dredging around in the depths of my memory I believe there are two types, lineal and collateral. Lineal are as described earlier the direct line of descent i.e. child, grandchild etc. Collateral would include nieces and nephews.

Savvy_Sue

Mojisola wrote: »

Child, grandchild, etc, are the bloodline. Nieces, nephews, cousins, etc, are not direct descendants.

So does that mean that they are not descendants at all?

daska wrote: »

OK, this is way outside my experience but... I'm going to throw (what might be) a spanner in the works and ask how they should be defining descendant. Because, dredging around in the depths of my memory I believe there are two types, lineal and collateral. Lineal are as described earlier the direct line of descent i.e. child, grandchild etc. Collateral would include nieces and nephews.

It's way outside my experience too, but I'm struggling to find anything which describes or defines 'remoter descendants'. Not having a legal brain, I'm trying to apply common sense, which I know is a dangerous thing to do ...