Not Following Terms Of Will

[Janbuck]

My friend has been named as the executor in her husband's will. He has a terminal illness. Her husband has three daughters. His will stipulates that the eldest gets some family jewellery. She doesn't know this, nor does the youngest. The middle daughter has taken this jewellery, with her father's consent, as she says the eldest will only sell it for the money. She wants to keep the jewellery 'in the family'. The eldest will now receive a sum of money in lieu. Is this legal? Will has not been changed, so will my friend, be doing anything illegal by not following the terms of the will when her husband dies?

[EDDIE51]

I would say your friend needs to change his will to say that the daughter gets cash not jewellery.

[woofgang]

oh what a mess. Your friend really needs to sit down with her husband and get him to change his will. Or does he want all hell to break loose in the family when he dies and for his wife to have a huge pile of poo to clear up?

[Peter Pedant]

well the facts fit a DMC to be honest

Where is BarMaid she knows all about this

DMC is a death bed gift given in the knowledge of up and coming death. If the jewel box has been given up that is sufficient but even a key to the box ( shows transfer of control ) would be sufficient

So at death, the box and contents do not form part of the estate and the bequest fails
therefore the elder sister 's most sensible course ( girls wills sensible course Hahah a good one ) is to take the money

On the facts given if the elder sister litigates she would lose

[Peter Pedant]

Not following the terms of the will

is a bit misleading

1) no will to follow, as he's still living
2) giving away stuff he has left to someone in a will is well covered in law - he can.
3) suppose he has a holiday home Mon Repos which he sells in 1980 but is mentioned in the will .... can the lucky non-legatee claw it back ? Nope

[Buenchico]

If the testator has given the jewellery as a gift to the middle daughter (rather than retaining ownership of it and just letting her look after it) the part of his will which gifts it to the oldest daughter is invalidated and she gets nothing. She can't be given anything else instead although, of course, your friend or anyone else who benefits under the will is free to give some of their own inheritance to whomever they choose (including the oldest daughter).

He needs to either write a new will or, at the very least, a codicil to the existing one. He doesn't need to use a solicitor. Something like the following will do:

"This is the first codicil to the will dated [date of original will] of me [full name of testator] of [full address of testator]

1. I revoke the bequest of my [description of jewellery] to my daughter [full name of oldest daughter].
2. I give [relevant sum of money] to my daughter [full name of oldest daughter].
3. {NB: This part only needs to be inserted if the jewellery hasn't already been given outright to the middle daughter} I bequeath my (description of jewellery) to my daughter (full name of middle daughter).
4 {or 3, as appropriate} In all other respects I confirm my will.

Date: [Date that codicil is signed]
Signature: [Signature of testator]

Signed by [full name of testator] in our presence and then by us in his:

[Signature and printed name and address of first witness, who must not be a beneficiary under the will]
[Signature and printed name and address of second witness, who must not be a beneficiary under the will]"

[Peter Pedant]

thx BC I was wondering how to write a codicil

[Prudie]

Your friend certainly needs to get this sorted legally.Hopefully Buenchico's advice is valid. Who will ensure that the eldest daughter gets money in lieu? - although one might ask why the husband stipulated this in his will and then gave the jewellery to the middle daughter on the quiet. It's sad to say from experience that the closest of families can behave abominably once it comes to divvying up a loved one's estate.

[jourdain2]

Very true, Prudie.

[Janbuck]

Thanks everyone, I'm sure my friend will appreciate all your advice.

[Peter Pedant]

// although one might ask why the husband stipulated this in his will and then gave the jewellery to the middle daughter on the quiet. //

My mothers lawyer when she drew up a will and a list of which of us four got whatever objet.... commented

Each of my five girls have come to me and said Daddy Cartie ( g mother) has promised me that she will leave me the emerald brooch to meeeeee.

and then he addeed that he had no idea what would happen on her death

[Peter Pedant]

BC I am aware you ran a will writing firm in another life and
you advice is therefore valid.... hem hem

coughs embarassedly

[Prudie]

My mother stated in her will that all her jewellery was to be left to me as her only daughter. My brother still insisted that twice I had to meet his wife, his daughter and a stepsister in a pub after she died with her jewellery box so that they could all 'pick something to remember her by'. I was in no state to argue.

[Peter Pedant]

Oh God prood
my sister put my brother out on the street !

[Marshwarble]

I think soliticitors would go out of business if they didn't make wills so complicated.

[woofgang]

marshwarble that is untrue and unfair. the complications here are made by the behaviour of the people in the family, not by the will/

[Marshwarble]

I'm a freelancer myself, so I know about people paying for their time-and sorting out wills seems to be as good a reason any.

[Peter Pedant]

wills are Very Good Indeed ( looking forward to today's heir hunter )

Here it boils down to: if someone has given X to A in a will, does that mean they cant dispose of X during their life ?

and the answer is no

but our suggestions are that something is written down during that someone's life so that A doesnt say "X is mine and I want it now !"
either now and / or later