Executors Duty to Follow Terms of a Will

[basa48]

I am the part beneficiary of a late close family members will.

The amount of my inheritance was stated as an exact amount of money, but the executors have deducted an amount that was gifted to me by the deceased several years previously (i.e. several years before the will was even written) stating that it was a loan and thus deductible from my legacy. There is a note written by the deceased stating how the loan was to be repaid but I never agreed to such a repayment nor signed any agreement.

Does the executor not have a legal duty to follow the terms of the will as stated (assuming there is money to cover the whole legacy - which there is).

I have tried to find the exact Act of Law that covers executors duties but am struggling. Can I sue?

[enaid]

Re: Executors Duty to Follow Terms of a Will

I am almost sure without a proper written contract the loan would be deemed as a gift and not a legal loan as such.
I accept the executors have a duty to collect money owing to the estate but only that which can be proved is owed. Someone else may be able to give a better response. If the loan was within the last 7 yrs of the persons death the figure should be included on the IIHT form that is part of probate too.
Enaid x

[enquirer]

Re: Executors Duty to Follow Terms of a Will

The amount of my inheritance was stated as an exact amount of money, but the executors have deducted an amount that was gifted to me by the deceased several years previously (i.e. several years before the will was even written) stating that it was a loan and thus deductible from my legacy. There is a note written by the deceased stating how the loan was to be repaid but I never agreed to such a repayment nor signed any agreement.

As enaid points out, the Executors are bound to recover monies owing to the estate.

There is a document that appears to show that the money concerned was a loan and not a gift. This you deny, pointing out that you understood at the time that the money was a gift. You never signed the document and were until now, unaware of its existence.

If you want to press this, and the Executors won't budge (are they beneficiaries?), it is difficult to see any route other than an expensive and possibly fruitless legal action. It might be wise to go for a free initial interview with a solicitor specialising in contentious probate.

[basa48]

Re: Executors Duty to Follow Terms of a Will

The money given to me was well over 7 years ago. There was no note I was aware of at the time describing the gift as a loan. I certainly never signed an agreement to repay the money. The sum involved would be a small claim.

The will specifically names me and an exact amount I should inherit.

The executor is also a beneficiary (of the residue). I assume this is a ploy to increase his share

[Johnboy007]

Re: Executors Duty to Follow Terms of a Will

Hi,
This is from a probate solicitors web page.

In order to be able to distribute the estate the executors will need to collate a full picture of the value and extent of the estate.

They must first pay any inheritance tax due. Once the grant of probate is received (or the letters of administration where there is no will) they must collect in all the assets, pay all the debts and liabilities and then distribute the remaining estate in accordance with the terms of the will.

Executor responsibilities in detail
These are the same as responsibilities of administrators (where there is no will) and responsibilities of personal representatives (which includes both executors and administrators). Here we will just call them executors:

• Obtain proper valuations of the assets of the deceased as at the time of death.
  Take all proper steps to protect the assets of the deceased and to manage any business of the deceased.
• Prepare and submit tax returns for inheritance tax and other taxes ensuring that all appropriate allowances, reliefs and write downs are applied for.
• Obtain any relevant tax clearances before distribution of the estate.
  Pay and settle all debts owing by the deceased, including all taxes.
• Complete and file all relevant documents for the court application for the grant of probate.
• Ensure that the wishes of the person who died have been carried out as set out in the will.
• Distribute the estate.
• Prepare estate accounts for beneficiaries.

Now the interesting thing here is the part that states..
'Ensure that the wishes of the person who died have been carried out as set out in the will'.

The alleged loan is as stated, it's 'Alleged'.
There is no signature to this alleged loan, and no signed agreement on any repayment plan.
Unless there was a witness to this loan, then I cannot see how the executor can lawfully claim it as an asset.
How does he know that the deceased never changed his mind about repayment of the alleged debt.
His duty is to collect monies owed to the estate, but he has to make sure, that anything he does, and all money he collects is lawful.
The executors and administrators are legally bound to carry out their duties properly. They are personally liable for any mistakes or incorrect distributions.
It is important to understand that the executors must carry out their duties comprehensively.
In other areas of law, people often have to weigh up the advantages and disadvantages of a course of action, such as deciding whether the costs of taking action outweigh the benefit of winning.
Executors must make as full enquiries as they are able and deal with all assets within the estate, no matter how small. This can involve carrying out searches with relevant institutions or placing legal notices in appropriate newspapers and other publications.

I am of the opinion, that if the deceased was concerned about repayment of the loan, then this would have been reflected in his/her will.
A deduction of X amount would have been stipulated, or the amount bequeathed, reduced by X amount.
As far as I am concerned, the will has stated that you are entitled to X amount, as was the wishes of the deceased.
The latest will takes precedence over any other previous will
The executor, must by law, uphold the wishes of the deceased, and ensure you receive what is lawfully yours.
If there is a question as to the legality of the loan, then this is a matter for the executor and the courts to decide.

For more information about the legal duties of an executor, go to the H.M Customs and Excise web site below....

http://www.hmrc.gov.uk/manuals/tsemmanual/tsem6051.htm

[stevemLS]

Re: Executors Duty to Follow Terms of a Will

Yes, but don't ever get involved in probate litigation, invariably the costs far exceed the amount in dispute.

I disagree with the last analysis - it doesn't matter whether you signed anything in my view, the testator was clearly of the view that this was a loan, by the note, you can't, it seems to me, have your cake and eat it - you can't take the will of the testator as expressed in the will as uncontrovertible and yet doubt what the testator has said in a note.

The main legislation is the Administration of Estates Act 1925 but there are all sorts of amendments and secondary legislation - which is but one reason why my advice is to sort it out between yourselves or lose it all in legal costs.

[des8]

Re: Executors Duty to Follow Terms of a Will

Does the will predate or postdate the loan/gift ?
If it post dates the loan/gift one could assume the testator would have mentioned it in the will if it was a loan as suggested by Johnboy.

[basa48]

Re: Executors Duty to Follow Terms of a Will

Does the will predate or postdate the loan/gift ?
If it post dates the loan/gift one could assume the testator would have mentioned it in the will if it was a loan as suggested by Johnboy.

The will post dates the supposed loan by over 7 years.

Incidentally the testators note stipulated that repayment of the 'loan' would be at a time still in the future and is dependant upon an event that has not yet and is unlikely to occur. (Sorry to be obtuse, there are reasons).

[basa48]

Re: Executors Duty to Follow Terms of a Will

............ you can't take the will of the testator as expressed in the will as uncontrovertible and yet doubt what the testator has said in a note........

The difference being the will is a legal document signed and witnessed as the true wish of the testator. The 'note' as I understand it is a piece of notepaper probably not signed by anyone. Not even sure the testator signed it, I certainly never saw it.

[stevemLS]

Re: Executors Duty to Follow Terms of a Will

You really can't ask for advice and withhold essential facts - the content of the note, esp conditionality of repayment is vital to give a proper opinion.

[basa48]

Re: Executors Duty to Follow Terms of a Will

You really can't ask for advice and withhold essential facts - the content of the note, esp conditionality of repayment is vital to give a proper opinion.

As I don;t know who might read this thread I'd rather PM you the wording of the note as I understand it.

Can I PM you?

[Johnboy007]

Re: Executors Duty to Follow Terms of a Will

Yes, but don't ever get involved in probate litigation, invariably the costs far exceed the amount in dispute.

I disagree with the last analysis - it doesn't matter whether you signed anything in my view, the testator was clearly of the view that this was a loan, by the note, you can't, it seems to me, have your cake and eat it - you can't take the will of the testator as expressed in the will as uncontrovertible and yet doubt what the testator has said in a note.

The main legislation is the Administration of Estates Act 1925 but there are all sorts of amendments and secondary legislation - which is but one reason why my advice is to sort it out between yourselves or lose it all in legal costs.

A will is usually signed by the testator and a witness in front of a solicitor.
It expresses the wishes of the testator after they die.
It is a legally binding document, until such times as the testator makes another will to take its place.
The executor has a legal duty to fulfil the wishes of the deceased according to the will, full stop.
It could very well be argued that the loan has been forgotten/disregarded by the deceased.
Otherwise he/she would have amended the will to reflect the cost of the loan.
As there is no signature and no agreement, did such a loan even existed in the first place?
Any decision over the alleged loan being a debt still owed, is a question for probate and not the executor.

[Johnboy007]

Re: Executors Duty to Follow Terms of a Will

As I don;t know who might read this thread I'd rather PM you the wording of the note as I understand it.

Can I PM you?

I would also like to see this if possible please. you can send me a private message.

[basa48]

Re: Executors Duty to Follow Terms of a Will

I would also like to see this if possible please. you can send me a private message.

PM sent.

[Johnboy007]

Re: Executors Duty to Follow Terms of a Will

Got your message Basa....

'Until sale of house.
This is just a note, nothing more.
The executors have definitely not fulfilled their legal duty to uphold the wishes of the deceased.
Until the house is sold, is just that anyway.
Until the house is sold. full stop.
I have a suspicion it could be a bit of greed or jealously going on here.
The trouble is probate litigation is expensive and may far out way what you would get if you won the case.
It may pay you to consult a probate solicitor for information.
If the executors have acted unlawfully, then a stiff letter from a probate solicitor may just do the trick.
This will be a much cheaper option.

You may be interested in this.........
A letter does not override a will though it may be a basis for the bearer of the letter to make an application to challenge the will in court. A court order is required to vary the terms of the will

Something to show the executors. If they have not followed the will to the letter, then they could be in serious trouble
A court order is needed to make any amendment to a will.
So the executors in your case, have acted unlawfully.
I believe that you have a very strong case to get back your money.........
You could try the....'I am going to report you for not carrying out the wishes of ( name of deceased) as you are legally required to do, and you may end up getting prosecuted' ploy.
In other words a little bit of pressure.

The above information is from a Lawyer who specialises in UK Law.