Executor’s headache: Gifts in Will sold by Testator

Flugelhorn

I think it meant that Uncle needed the cash

Marcon

doodling said:

Hi,

Keep_pedalling said:

Misha96 said:

Thank you for the information and advice. I'm uncertain how to proceed but it's good to know I am not bound legally  to start signing cheques for the people concerned.

I think it would be worth taking legal advice on the best way to inform failed beneficiaries. Even if you do it correctly people can get nasty and might start making unfounded accusations.

I don't see any point in using a solicitor to write letters for you.

All you need to do is write to the beneficiaries whose bequests have failed explaining what has happened, explaining the very simple legal position that if the testator bequeathed something they haven't got at the time of death then the bequest fails and there is no entitlement to any kind of substitute (including money), expressing your sympathies at their predicament and explaining that you cannot legally do anything else unless another beneficiary is willing to accept a reduction.

That comment alone is a good example of why a solicitor can be a handy asset! If these people have seen the will, as seems likely, they will know OP is the main beneficiary, so not hard to guess how they'd respond. Very foolish to write that sort of thing and lay yourself wide open...

theoretica

I would find a legal page explaining the failure of gifts and send a link to that - so it's not you telling them, it is someone independent.

doodling

Hi,

Marcon said:

doodling said:

Hi,

Keep_pedalling said:

Misha96 said:

Thank you for the information and advice. I'm uncertain how to proceed but it's good to know I am not bound legally  to start signing cheques for the people concerned.

I think it would be worth taking legal advice on the best way to inform failed beneficiaries. Even if you do it correctly people can get nasty and might start making unfounded accusations.

I don't see any point in using a solicitor to write letters for you.

All you need to do is write to the beneficiaries whose bequests have failed explaining what has happened, explaining the very simple legal position that if the testator bequeathed something they haven't got at the time of death then the bequest fails and there is no entitlement to any kind of substitute (including money), expressing your sympathies at their predicament and explaining that you cannot legally do anything else unless another beneficiary is willing to accept a reduction.

That comment alone is a good example of why a solicitor can be a handy asset! If these people have seen the will, as seems likely, they will know OP is the main beneficiary, so not hard to guess how they'd respond. Very foolish to write that sort of thing and lay yourself wide open...

Why, it is a simple statement of fact?  It leaves you no more open than if you didn't write it.  If these people are going to respond like that then the absence of that statement isn't going to make any difference.

Ultimately we're trying to tell the OP how to disagree with someone.  I've advanced an approach which is a simple "explain the facts" one, probably based on my experience that if you are reasonable with people then they tend to respond reasonably in return.  There are others like "tell the other party to ... off" or "appeal to a higher power" (e.g. quote the law or use a solicitor) or "ignore completely".  Who knows whether any of the options will work in this case, we certainly don't, but advising the OP to spend money on a solicitor when they aren't actually wanting legal advice doesn't feel cost effective, unless they know that that is the one argument style that will work in which case it might save some of their time.

silvercar

Sorry to hijack, but this thread makes an interesting read. I hope you reach a swift conclusion.

What would happen if someone with power of attorney, who was aware of the contents of a will, deliberately sold assets that were left to others, so that they themselves had the greatest benefit from the will? Eg uncle short of money POA decides to sell the car as that is left to someone else rather than any other asset? Or if someone at death’s door is admitted to hospital and gives some jewellery to someone rather than risk it being lost in hospital and that person them claims it was gifted to them as opposed to given for safe keeping?

Sea_Shell

silvercar said:

Sorry to hijack, but this thread makes an interesting read. I hope you reach a swift conclusion.

What would happen if someone with power of attorney, who was aware of the contents of a will, deliberately sold assets that were left to others, so that they themselves had the greatest benefit from the will? Eg uncle short of money POA decides to sell the car as that is left to someone else rather than any other asset? Or if someone at death’s door is admitted to hospital and gives some jewellery to someone rather than risk it being lost in hospital and that person them claims it was gifted to them as opposed to given for safe keeping?

Interesting question.

As selling the items could well be in the best interest of the donor.

Eg selling a car that they can no longer drive, if the money is expected to be needed for something else.

Flugelhorn

it is an interesting point @silvercar I presume that the original beneficiary could expect the attorney to prove that the money was needed  - if it was just to increase the attorneys share of the estate then perhaps that is attorney not acting in the best interest of the donor?

I can imagine situations where this might happen 

RAS

There was a very old thread where the donor left "shares" to one person, and "savings" to another whilst wife got "house and account". It seems one bank set up a lot of wills like that, because other reported the same pattern.

Wife never registered EPA but used it to sell shares and move to joint account, then move savings to joint account. Once that was done she moved money across to a sole account. There was about £12k left out of quarter of a million when he died.

Not spent on care, meantime.

Keep_pedalling

Flugelhorn said:

it is an interesting point @silvercar I presume that the original beneficiary could expect the attorney to prove that the money was needed  - if it was just to increase the attorneys share of the estate then perhaps that is attorney not acting in the best interest of the donor?

I can imagine situations where this might happen 

It would be difficult for the beneficiary to prove unless the attorney sold the car while the donor was on their deathbed at the time of the sale. Selling the car at the point the donor can no longer use it because of loss of mental capacity would nearly always be in their best interest as the car would just sit depreciating in value. The same applies to any of the donors chattels that are no longer of use to them.

If instead of chattels we are talking about major assets it becomes more complex. If for instance the donor / testator leaves his home and residual estate to his attorney and his holiday home to his best friend, what does the attorney do if one needs to be sold to pay for care. As far as the donor’s best interests are concerned it does not matter which property is used to fund his care, so the attorney could sell the holiday home and rent out the main property which in the long run benefits him to the detriment of the friend.

The friend could certainly make a challenge after the testator died, but it would be down to a court to make a decision on whether the executor manipulated the estate to benefit them in the long term. The moral of the story is not to leave people stuff there is a reasonable chance you won’t own at the time of death.

Malthusian

Marcon said:

That comment alone is a good example of why a solicitor can be a handy asset! If these people have seen the will, as seems likely, they will know OP is the main beneficiary, so not hard to guess how they'd respond. Very foolish to write that sort of thing and lay yourself wide open...

Saying "unless another beneficiary is willing to accept a reduction", as opposed to "a beneficiary", when the receiver knows the OP is the primary beneficiary and the OP knows they know, is a subtle way of saying "don't bother asking me to reduce my share because refusal may offend". It is a careful choice of words.
I agree with Doodling; legally and strategically there is no issue, they are only stating what the beneficiaries already know or can easily find out. 
If this happened to me I would consider making an ex-gratia payment, as it was after all the uncle's intention that they got something. But not if the thwarted beneficiaries are "baying" for their non-existent share. If that's the atmosphere, being nice risks putting blood in the water. 

silvercar said:

What would happen if someone with power of attorney, who was aware of the contents of a will, deliberately sold assets that were left to others, so that they themselves had the greatest benefit from the will? Eg uncle short of money POA decides to sell the car as that is left to someone else rather than any other asset? 

As others have said, it depends entirely on whether the sales could be justified as being in the uncle's interests.
I remember a previous debate here about whether the Attorney should even know what is in the donor's Will. There is an argument that they shouldn't even know because they are duty bound not to pay any attention, but on the other hand, if they do know they may have a chance to avoid situations like this while still acting in the donor's interest.
Ultimately it is not the Attorney's fault if the donor has a stupidly drafted Will. The issue would have been avoided regardless of what the Attorney did if they included the clause Alderbank suggested: "If this bequest fails I leave Willie the sum of £xxx,xxx". 

Or if someone at death’s door is admitted to hospital and gives some jewellery to someone rather than risk it being lost in hospital and that person them claims it was gifted to them as opposed to given for safe keeping?

I think that very issue has come up here at least once.
The likelihood is that the thief would keep the jewels, unless they were so extraordinarily valuable it was worth the beneficiaries of the estate suing to get them back. Possession is 9/10ths of the law when it comes to personal items of sentimental value only. 
(Or of course some larger family members knocked on the thief's door and managed to persuade them to give them up. Extralegal solutions never happen on Internet forums about legal issues, but they do among real-life families that tend to nick each other's stuff.)