Is executor obliged to follow conditions of wiil exactly

TcpnT

A friend is executor and beneficiary of her mother's will. The will leaves the whole estate equally to four siblings of whom the executor is one.
The etsate consists of a house, various bank accounts and a separate parcel of agricultural land which was the remaining part of a farm sold by the deceased years ago.
There is a clause in the will that states that the land should only be sold and distributed in cash if all four siblings are in agreement that it should be sold rather than retained in shared ownership.
My question is whether the executor can choose to ignore this clause and go ahead and sell the land without the agreement of all beneficiaries. I am referring to the legal situation here rather than the moral one.
I don't believe that anyone would lose out financially so would there be any grounds for anyone to contest this?

Malthusian

I'm not 100% certain on whether it would be legal, but more importantly I can't see the point.

Why not distribute the estate as the Will orders, and then, once the estate is wound up, the land is personally owned by the four beneficiaries, and the Will is no longer relevant, go to court and force a sale of the land?

The outcome is largely the same - either way you have to go to court if one or more beneficiaries dig their heels in - but the ammunition of "the executors are failing to carry out the Will" has been removed from the recalcitrant beneficiary(ies).

Naturally it would be much better if it doesn't go to court and the beneficiaries who want to keep the land buy out those who want to sell.

They could execute a Deed of Variation so that those who want the land get the land and those the ones who want to sell get cash / house proceeds. If there is enough in the estate and they are within the time limit.

The executor needs professional advice.

Keep_pedalling

If all of the beneficiaries agree to sell no problem, likewise if they all agree to hang on to the property.

The issue is if their is no agreement in which case the clause is unenforceable, no one can be forced to take their inheritance in the form of shared property, so if it came down to a legal fight those wanting to cash in are going to win what could be a very expensive legal battle.

As an executor I would ask what the other beneficiaries wanted to do but make it clear that if some wished to keep the property they would only be able to do so if they can buy out the share of those wanting to cash in.

It is really rather silly to try and control things beyond the grave with such clauses.

Mojisola

TcpnT wrote: »

A friend is executor and beneficiary of her mother's will.

There is a clause in the will that states that the land should only be sold and distributed in cash if all four siblings are in agreement that it should be sold rather than retained in shared ownership.

My question is whether the executor can choose to ignore this clause and go ahead and sell the land without the agreement of all beneficiaries.

Why is the executor considering doing this rather than following the instructions in the will?

getmore4less

That clause removes the normal executor discretion
Can't sell unless all agree

If a beneficiary does not want to be an owner they have the option to give up their inheritance of that land(or DOV to someone else).
Those that want to keep cannot be forced to buy out.

xylophone

The testator has directed that the land may only be sold if all the beneficiaries are in agreement.

It really is as simple as that. If the executor fails to comply with the terms of the will, any of the beneficiaries could challenge his actions as a breach of fiduciary duty.

Keep_pedalling

getmore4less wrote: »

That clause removes the normal executor discretion
Can't sell unless all agree

If a beneficiary does not want to be an owner they have the option to give up their inheritance of that land(or DOV to someone else).
Those that want to keep cannot be forced to buy out.

Is that really their only option? Can’t they force a sale immediately after taking part ownership? I don’t see how the terms of will can lock people in to something like that for ever.

getmore4less

They can try and pay the legal fees to do it.

TcpnT

Thanks for all the replies so far. Hopefully it won't come to this in the end and all beneficiaries will come to an agreement about what course of action to take.

The reason the question has arisen is because at the moment half would prefer to have cash and half would prefer to keep the land but discussions are ongoing.

The reason for selling directly from the estate would be that it the sale would be under the control of the executor rather than coordinating between 4 people later on and so would happen quicker and be more straightforward.

Assuming that in the end all beneficiaries do agree that the estate should sell the land I take it that there there is no way that anyone has ground to contend that the will was not followed? After all nobody else is affected.

Mojisola

TcpnT wrote: »

The reason the question has arisen is because at the moment half would prefer to have cash and half would prefer to keep the land but discussions are ongoing.

If there is enough capital in the estate, why not just change the distribution of the estate?

The two who want to keep the land can do so - the amount they receive from the rest of the estate can be reduced to cover the increase.

I don't think it would need a DOV to do this. Everyone would still end up with equal shares from the estate.

Malthusian

TcpnT wrote: »

Assuming that in the end all beneficiaries do agree that the estate should sell the land I take it that there there is no way that anyone has ground to contend that the will was not followed? After all nobody else is affected.

Not based on what you've said. The Will says "the land should only be sold and distributed in cash if all four siblings are in agreement". In your scenario they are in agreement.

The reason for selling directly from the estate would be that it the sale would be under the control of the executor rather than coordinating between 4 people later on and so would happen quicker and be more straightforward.

But only if nobody digs their heels in.

If agreement can be reached, e.g. the two people who want to sell take more of the cash and house proceeds and the two who want to keep the land get the land, there is no problem to solve.