Uncashed Cheques

stuhse

Thanks for clarifying, it does make sense.  So the only way this woman could get the money the aunt decided to give her somewhat too late is if the executors with the agreement of all the other beneficiaries organised a deed of variation. ?

Savvy_Sue

stuhse said:

Thanks for clarifying, it does make sense.  So the only way this woman could get the money the aunt decided to give her somewhat too late is if the executors with the agreement of all the other beneficiaries organised a deed of variation. ?

Almost but not quite.

You don't need the agreement of ALL beneficiaries, just any who are disadvantaged by the variation. 

And note that minors can't give that agreement,  nor can anyone else do so on their behalf.

And charities also can't give that agreement, because the trustees have to act in the charity's best interests.

However, any other beneficiaries certainly can agree to honour the gift. Doesn't even have to be all the others, just one could say "here you go", and that could be done via Deed or as a gift. 

fcandmp

stuhse said:

fcandmp said:

 The largest on the English account has not been cashed by the person to whom she had previously granted power of attorney. That person has now been told by the executors that the cheque cannot be honoured as it was not cashed before my wife's aunt died.   Is this correct, i.e. it is not an outstanding claim on the estate?  Many thanks 

My take on the situation.  The questions need to be separated to avoid confusion.

Can the cheque be cashed now she is dead ?....no, this is a simple matter of fact, it is invalid on death.

Is the person who has the cheque due the money from the estate ?  It's quite clear the aunt intended the person to have this money.   Imagine the aunt had gone into a shop on a Saturday afternoon and bought some goods which she paid for by cheque. She dies Saturday evening.  When the shop keeper banks the cheque on Monday (blissfully unaware that she is dead) the cheque will fail.  Is the shop keeper due their money ? It would seem absolutely so to any reasonable person and the executors would need to settle up i would have thought.  So in this case the aunt gifted some money, the cheque is evidence.  Im unsure if the law views it differently because it was a gift, but i would have thought that when the executors are presented with the cheque as a claim against the estate they would be duty bound to settle it.-----i might be wrong and have no specialist legal knowledge..but it seems logical, and the law usually is.

Many thanks for your thoughts. The legal position is quite specific and the executors have made clear that it would not be handled as a claim on the estate. The French end of things may be different.

fcandmp

RAS: "Hopefully the charities were left fixed sums or specific percentages of the estate? And is that the English estate or the whole estate?

If they are residual beneficiaries, then getting a deed of variation is going to be very difficult, and complex if they were left a percentage."

The charities are left the residual sum above the IHT threshold, split equally after Inheritance Tax and executor fees have been accounted for, so no fixed percentage. As you note getting any overall agreement when there are 5 beneficiaries (below the IHT threshold) and 5 separate charities involved with the residual estate will be both complex and emotionally draining. 

Keep_pedalling

fcandmp said:

RAS: "Hopefully the charities were left fixed sums or specific percentages of the estate? And is that the English estate or the whole estate?

If they are residual beneficiaries, then getting a deed of variation is going to be very difficult, and complex if they were left a percentage."

The charities are left the residual sum above the IHT threshold, split equally after Inheritance Tax and executor fees have been accounted for, so no fixed percentage. As you note getting any overall agreement when there are 5 beneficiaries (below the IHT threshold) and 5 separate charities involved with the residual estate will be both complex and emotionally draining. 

Charities are not in a position to make a DoV even if they wanted to, so any variation would need to come from the other beneficiaries.

Surely if everything over the NRB has been left to charities there won’t be any IHT to pay.

jimbo6977

Twenty five years ago I did a short course in French law regarding cheques and I can remember absolutely none of the detail, however I can recall that the laws around cheques in France are very strict, which is one reason why the French still use them so much more often than the British. Essentially a cheque cannot "bounce" in France. You need to speak to a notaire or a dual qualified UK solicitor to get a proper view of how the French cheque is to be treated.