Risk if I ignore will and distribute in line with expressed wish of testator?

[actnow2015]

Hello, I am in a moral rather than legal bind and would be grateful for some pragmatic advice please.

I had full POA for my parent, living in Scotland, and they requested that their will be amended when one of the beneficiaries died, however, after some discussion we didn't alter the will as my parent understood that the deceased beneficiaries entitlement had lapsed when they died. My parent was very clear with various people that they wanted the lapsed entitlement to be equally distributed between the remaining beneficiaries and they believed that is what would happen.

Unfortunately it now transpires that the deceased beneficiaries child is entitled to their parents share. This person know this was not the wish of the testator and initially agreed to vary their share to redistribute the sum as the testator had wanted, however, this was only a verbal arrangement which they continued to agree to it until they were asked to sign a variation at which point they refused and employed a solicitor who has accused me of all sorts of nonsense. I have explained the testator made their position very clear prior to their death and I have attempted to negotiate with the solicitor and the beneficiary, this has proved to be a waste of effort and has taken up a huge amount of my time.

The deceased beneficiary stole a significant sum from testator which was uncovered before they died, the testator did not want to involve the police, however, the bank was informed and social services were involved as the testator was vulnerable. The testator was at that time considered to be at risk from the deceased beneficiary to the extent that a panic alarm was set up to enable the police to be alerted if the beneficiary turned up unannounced. The deceased beneficiaries child is already included in the will and has benefited from significant sums prior to the testators death. It seems entirely unreasonable that due to a misunderstanding by myself and the testator that the child of the person that stole from and put the testator at risk should benefit disproportionately and entirely at odds with what would have happened if the testator had understood the law correctly in relation to what would happen to the share initially due to the deceased party.

I am sure the law is clear and the wording of the will is what stands, however, my conscience is finding it very difficult not to say screw the injustice of the law in this case I will just do what the testator told me, and others, they wanted, and divide the deceased beneficiaries sum equally between all of the other beneficiaries and face the consequences.

After a very long blurb, if you were able to stay with it this far, can someone please advise me on what the consequences might be to enable me to decide what will be the least difficult decision to live with.

My circumstances are that I have zero in the way of assets following a litigation several years ago where I was uninsured and lost anything of value to pay legal fees and make settlement rather than take the easy route of bankruptcy, however, I am at an age where I would like to do the right thing by the testator if the implications don't include ending up in jail.

[des8]

There appear to be no grounds for varying the will without agreement from all beneficiaries affected.

So I would strongly recommend you follow the will exactly.
If you don't the injured beneficiary, who has legal representation, will as sure as eggs is eggs, take action to recover his legacy from the others who have benefitted from his loss.
As you will have deliberately acted contrary to your duty of care to act in the best interests of the beneficiary you might even find yourself on the wrong end of a costs order.
Debtors don't end up in jail (even in Scotland) but doing " the right thing by the testator" is not going to be successful and only cause a lot of grief.

Just in case tagging ScottishSolicitor

[actnow2015]

Thank you for taking the time to make your helpful reply, it's appreciated.

If I distribute to the beneficiaries as per the testator's expressed wishes, rather than as per the will, how likely is it the beneficiaries would be asked to refund their overpayment and what if they refuse to return the excess?

As executor presumably I am liable, if the wronged party takes action (I expect them to), and I have no assets would they be wasting their time and money?

I appreciate this is all rather extreme and I may just do the legally correct and morally incorrect thing to save the hassle, but I am very angry that the deceased beneficiaries child has been so insencere in agreeing all along to vary and then changing their mind at the last minute as they never had any intention of doing what is morally correct and were just ensuring no one raised any objections at an early stage.

Any further thoughts and advice gratefully appreciated. Thank you.

[des8]

The beneficiaries are aware the legacies as proposed are not as per the will, so if they accept them they could well be ordered by the court
to refund. If they are aware they will not be able to retain the "extra" they may prefer you keep to the strict provisions of the will, rather than face claims.
Any shortfall will be down to you personally, as could be the claimants costs.

If you fail to pay I think in Scotland the creditor can employ "diligence" which may include:
i)freezing money in your bank account;
ii)taking money directly from your earnings;
iii)an attachment of property outside your home; or
iv)an application for an attachment for property inside your home

To me it just doesn't seem worth the candle to try and follow your parent's verbal wishes rather than the will.
Morally you might be correct, but legally IMO you are on very thin ice.
Perhaps you should consult a Scottish solicitor for advice to see if there is some way the will may be varied.
It might be possible to take the amount stolen into account as an early part payment when paying the legacies .. but again you would need this confirmed professionally.

[ScottishSolicitor]

I am really on all fours with des8 here. This is not my area but its common sense to say the will instructs an executor's actions unless there be a basis for challenging said will. However actions for "reduction" of a will are not entered into lightly.

[actnow2015]

des8 and ScottishSolicitor Thank you so much for your helpful replies, I'm grateful to you for sharing your knowledge so generously.

I fully appreciate the position legally in terms of following the will and understand the risk personally of ignoring that, it's a decision I will have to make but not yet as I am still gathering in some money from insurers and have a few bills to settle.

One of the beneficiaries solicitors has suggested that I should be making an interim payment now and wants to know how much that will be, I am not inclined to make an interim payment while there are still questions being raised by another beneficiaries solicitor and have told them I will wait until all matters are resolved and bills etc dealt with before paying anything out, the grant of confirmation was only obtained three months ago and my parent only died in October last year, am I under any obligation to make interim payments or can I stick to my guns and wait until things settle down and the solicitors back off?

An additional question if I may,

'per stirpes' I understand, however the will makes reference to 'my grandchildren, equally between them per stirpes' is this open to any interpretation as my parents believed their grandchildren would be getting equal shares? I am now told the deceased beneficiaries only child, will be entitled to 50% of the amount left to the grandchildren and the grandchildren of the other family will have to divide the remaining 50% between them equally.

This is galling because the only child is the one that knows what her grandparents believed would happen and knows they did not understand their will or would have changed it, however, having reneged on the agreement to vary she now demands 50% of the benefit left to the grandchildren plus her deceased parents full share.

Is the phrasing of the will open to any interpretation given the mention of 'equally between them' or am I to ignore my parents wishes here too? What I would like to do is distribute the grandchildren's share equally between them all as my parents expected would happen.

Final question, one of the grandchildren has same father as family two but different mother, can that be considered another branch or would that be stretching things?

Thanks again in anticipation of any replies, apologies if this seems like a mixture of a request for legal advice and stuff being offloaded, I'm struggling a bit with feeling like I've let my parents down by not getting the will changed when requested to as we believed we understood what what it meant, now I realise we didn't!

[Ames1]

I would definitely seek advice on the stolen money as that is a debt that needs to be repaid so I would hope it could be recovered from their share? Therefore the deceased beneficiary’s child should get less as a result of the theft that their parent carried out?

[des8]

You are under no obligation to make interim payments.

For the rest, I will not be commenting as I am unsure of the position.
You are posting odd phrases from, and precis of sections of the will out of context.
You also have at least one beneficiary who has legal representation
Scottish law differs from that applying in England & Wales, which is where I am based
You also have a beneficiary who might get litigious.
I would hate to give you poor advice.

Under the circumstances I think you should instruct a Scottish solicitor to sort out the estate (or at least advise you)
The cost of course will come from the estate.

Whether you get it right or wrong, I can see that some of your extended family will blame you for what they see as unfair.
Pass it to a solicitor and it will relieve a lot of that stress

Good luck

[actnow2015]

des8 Many thanks for all of your input, it's very helpful and I will take some advice now from a Scottish solicitor to see what is possible. You are spot on about the extended family, it's sad that money becomes the focus and rather than having a sensible conversation to resolve things people are too quick to pull up the drawbridge and hide behind solicitors, family means very little to some when a quick buck can be made.
Thanks again and all the best.

[actnow2015]

I have now received correspondence from a solicitor stating that I must make an interim payment or they will have no option but to take steps to protect their clients share of the estate. They are concerned that I am not fulfilling my duties as an executor and have serious concerns that I misunderstand the law and am acting without the benefit of legal advice because I won't make an interim payment.

My response has been to say that i understand that that making an interim payment is at my discretion and I will not be doing so.

I have explained there are still matters to be resolved with other beneficiaries and some creditors to be paid etc and their client can wait like everyone else.

Additionally I've said they should not infer from my insistence that my mother's expressed wishes are not reflected in the will, that I will not act in accordance with it albeit somewhat resentfully.

I have told them previously I'm not interested in further correspondence with them and to take action if they wish but as I am acting diligently there is nothing the court would do so it's a waste of their clients money.

i'm winging it and wonder if I should be concerned or are their threats are just that, they are a litigation solicitor that deals with contentious probate issues so have no need to resolve this quickly, I have said it can be resolved by dialogue between myself and their client.

The testator only died in October and I used a solicitor to get the grant of confirmation and have gathered in the estate myself to save some money. I understood I had a year to get it sorted, any views on that please?

All advice gratefully received, thank you in advance.

[des8]

At least in England and Wales there is what is commonly known as the executor's year, which is an accepted time frame to allow administrators time to settle the estate. I assume the same applies in Scotland.
As administrator you shouldn't be thinking of distributing assets until at least until 6 months after testators death, which has only just been reached.
Perhaps Scotland is different

I'm afraid some solicitors believe they can bully lay people if it is in the perceived interest of their clients.
I was recently subject to this sort of behaviour and warned the firm concerned that I would report them to SRA if it continued.
They have been ever so polite since!
I don't know who regulates Scottish solicitors

[actnow2015]

des8 Thanks for your response, I cannot imagine that after just 6 months they can insist that I make a payment to the beneficiaries.

They are being quite aggressive as to be expected from litigation solicitors, I feel like telling them to F off but guess it would just be red tag to a bull.

I may ask about their complaints policy..

All the best.

[des8]

Their complaints policy won't apply to you as you are not their client.
It is their regulatory body that you would complain to.

[Manxman]

Just follow the will. There is no way anyone will thank you if the estate ends up involved in litigation, and nobody will think better of you for doing what you think is "the right thing" - you cannot possibly win. (Which beneficiary is already complaining about distribution of the estate? If you aren't careful they all will).

I don't believe you are obliged to make any interim payment to anyone. However, if there is any reluctance on your part to execute the provisions of the will because you are desperately trying to avoid paying the testator's grandchild what they are due under the provisions of the will, then I fear you are skating on very thin ice indeed. I would never even dream of doing that in your position.

I'm afraid your actions do not contradict any assertion that: " They are concerned that I am not fulfilling my duties as an executor and have serious concerns that I misunderstand the law and am acting without the benefit of legal advice... "

And I would not be convinced by this either: "Additionally I've said they should not infer from my insistence that my mother's expressed wishes are not reflected in the will, that I will not act in accordance with it albeit somewhat resentfully." Your posts here tend to belie that statement.

You posted here ten days ago that you were seeking legal advice. What was the advice given? (You have seen a solicitor, haven't you?)

This sad story went wrong here: "I had full POA for my parent, living in Scotland, and they requested that their will be amended when one of the beneficiaries died, however, after some discussion we didn't alter the will as my parent understood that the deceased beneficiaries entitlement had lapsed when they died. My parent was very clear with various people that they wanted the lapsed entitlement to be equally distributed between the remaining beneficiaries and they believed that is what would happen."

The testator should have changed their will at that point, but unfortunately they didn't because they and family members misunderstood the law. That's all water under the bridge now, and unless all the beneficiaries can agree to a Deed of Variation, the will is what you have to execute.

I would not consider you to be under any moral obligation to your deceased parent. Your only obligation is to execute the will according to its terms and provisions. The time for worrying about whether the will should have been changed is long gone and dwelling on that question now or in the future will only lead to madness - don't go there. And there shouldn't be any recriminations about it either - there is no useful purpose served going down that route. And don't beat yourself up about it either. Just carry out the will.

That's my view anyway. Follow it or not.

(PS - I also think this is wrongheaded and very dangerous advice: "I would definitely seek advice on the stolen money as that is a debt that needs to be repaid so I would hope it could be recovered from their share? Therefore the deceased beneficiary’s child should get less as a result of the theft that their parent carried out?"

[actnow2015]

Thanks Manxman for your advice, I agree generally with what you say, I'd already reached a decision not to play silly buggers with the money and decided to comply with the terms of the will albeit reluctantly. However, I want to do it in my time rather than be bullied by a litigation solicitor, otherwise it's too bitter a pill to swallow.

What is their remedy to me not making an interim payment?

Following my message 10 days ago I took advice from a solicitor that specialised in contentious probate matters, their advice was to insist on the money which was stolen be repaid from their share, they also said to take the money borrowed for the funeral by the difficult beneficiary and recover payment for a number of other items. They said they would, 'Take the gloves off' If I wished to instruct them, they are a well known and highly sought after in high value probate disputes, I value my time as well as the estates money so didn't take their offer up.

A civil action route would be of very little consequence to me, I have zero assets in my name and now the UK are out of the EU it would be very costly to chase me as I live outside of the UK for much of the year...... tempting as it is to take the money and give it to my Mum's favourite charity, life is too short.