Probate question.

[guindilias]

I look after an 87 year old woman - well, she is in a home at the minute, so I visit her and look after the house so it looks occupied.

I am not in her will (I wrote myself out of it) but now that she may or may not have long to go, her family are arguing about her jewellery - she was a director of a jewellers in Belfast.

Several people have said that she promised all her jewellery to them - verbally. She has pretty advanced dementia.
Before the dementia took hold, she wrote a note to go in with her will, saying that she wanted a particular friend to have all her jewellery. It's all in a safety deposit box for now, as apparently it could be worth £250k when all is added up. Her will states that I, as one of the executors, should give out her estate "according to the wishes she expressed during her life". An unusual phase, I know.

I know a fair bit about law, but nothing about probate, and I know that she definitely wants it to go to the friend with the written, signed note - but of course, all the family who did not even visit her before are now claiming that she said it was to go to them - nothing written down.

Is this likely to end in a court battle, or does the fact that her friend has a note written by the old girl (pre-dementia) over-rule any verbal promises?

[Durzel]

"write a note to go with her will"

So she has a will? Did this note end up being filed with the will?

Edit: Re-read - so her will doesn't name beneficiaries, simply says that estate should be divided by you in however you see fit?

Edited by Durzel on Wednesday 15th August 16:38

[littleredrooster]

IANAL, but I'm not convinced that leaving you to distribute her estate as you remember/interpret her wishes is legally binding. I'd be surprised if it wasn't challenged.

I am, having had direct experience of this, fairly sure that an unwitnessed addendum to a will is usually contestable and fairly useless.

[Lurking Lawyer]

An expression of wishes letter can assist in guiding an executor on what the testator may have wanted, where the executor has a discretion, but it has no binding effect. To achieve that, the lady would have had to have either made a new will or made a codicil to the old will.

Supposed verbal promises have no legal effect either. Even if the putative beneficiary could prove that she did make promises - and that in itself would be an uphill struggle - it still has no bearing on the will.

Challenges to wills are very difficult to succeed in, unless there's some sort of issue about testamentary capacity or failure to comply with the statutory formalities. Adult children are unlikely to succeed in a claim under the Inheritance Act unless they were being directly maintained by the lady in the period before death.

The disappointed parties can huff and puff all they like but chances are that they won't have a legal leg to stand on.

Feel free to PM me should the need arise

EDIT: That's the position in England and Wales. Thinking about, if the reference to Belfast means that this is all going on in NI, I have no idea whether the same holds true. The law is, as I understand it, the same - albeit NI has its own separate court system.

[Durzel]

It isn't particularly surprising but I never cease to be disgusted by the tales of relatives that didn't give the deceased the time of day when they were alive appear out of nowhere as soon as there's a sniff of potential money that could come their way.

Parasites.

[HTP99]

My dad died intestate; he made a will but it wasn't legally binding as it had only 1 witness signature, however given the circumstances and the fact that his widow was "tenant in common" (think that was the term) on the house deeds, no matter what he wanted to happen, the house in its entirety would be hers and as there was no will, his possessions also were.

The "will" that he made was looked upon as his wishes but was in no way legally binding; his widow said she would carry out his wishes, she didn't have to, but she said she would; of course, she didn't, apart from a few bits we could get out of the house before it all went tits up, we got sweet FA.

So given my experience, I would have thought that as it isn't in the will and only a set of wishes, then I would say it isn't legally binding.

[anonymous-user]

guindilias said:

Her will states that I, as one of the executors, should give out her estate "according to the wishes she expressed during her life". An unusual phase, I know.

What does the will itself expressly say happens to the assets in her estate? By which I mean: leaving aside what she’s said or written in notes that aren’t the will, who are the beneficiaries on the face of the will? The wording you’ve outlined suggests that the answer is “no one”.

Edited by anonymous-user on Wednesday 15th August 18:10

[guindilias]

Lurking Lawyer said:

An expression of wishes letter can assist in guiding an executor on what the testator may have wanted, where the executor has a discretion, but it has no binding effect. To achieve that, the lady would have had to have either made a new will or made a codicil to the old will.

Supposed verbal promises have no legal effect either. Even if the putative beneficiary could prove that she did make promises - and that in itself would be an uphill struggle - it still has no bearing on the will.

Challenges to wills are very difficult to succeed in, unless there's some sort of issue about testamentary capacity or failure to comply with the statutory formalities. Adult children are unlikely to succeed in a claim under the Inheritance Act unless they were being directly maintained by the lady in the period before death.

The disappointed parties can huff and puff all they like but chances are that they won't have a legal leg to stand on.

Feel free to PM me should the need arise

EDIT: That's the position in England and Wales. Thinking about, if the reference to Belfast means that this is all going on in NI, I have no idea whether the same holds true. The law is, as I understand it, the same - albeit NI has its own separate court system.

The "Expression of wishes" have all been written, dated, and signed by the lady in question (excuse me being a little secretive - I would rather the family don't read this).
They are separate from her will (it hasn't been re-written), and the lawyer in question advised me at the time that this was the way to do it. I have no personal interest in the will, as I am now just an executor, not a beneficiary. She has no children, never has had - but she has nephews, who are the ones claiming she made verbal promises to them.
She is a widow, and very demented at the minute - but these signed, dated expressions of wishes are well before she developed dementia..
The wording on the will is as follows -
"All the rest and remainder of my estate of whatever kind and wheresoever situated I leave, devise, and bequeath to my brother (named), my friend Guindilias (again, I wrote myself out of this) and my nephew (named) to be dealt with and distributed and distributed by them as they in their absolute discretion think fit, taking into consideration the wishes which I have expressed to them during my lifetime.
In the event that my Executors have any difficulties in making this distribution, I direct that they should act upon the advice of (solicitor)."

I am an Executor, the nephew is not. Her brother is, and is not being troublesome - he is happy with that. So is the solicitor - he is named and is due a sum of money from the estate.
The solicitor told me at the time that it was an "unusual" form of will, but he had written several before in this manner without problems - even when people disputed it.
Nephews, etc, have begun arguing that "she told me I was promised this" - they come out of the woodwork, even though some of them haven't bothered to contact her in years. Nothing written, nothing but a supposed verbal promise to any of them.

So, should I disregard their claims, and let them know that they are not valid?

[Lurking Lawyer]

Yup - if all they've got is "She promised me...." then legally they don't get past first base. If they go and take advice if their own, they will almost certainly be told that.

If you're unsure, take specialist legal advice on the issue. It is a legitimate estate cost and it insulates you from any possibility of a claim against you personally.

[guindilias]

Lurking Lawyer said:

Yup - if all they've got is "She promised me...." then legally they don't get past first base. If they go and take advice if their own, they will almost certainly be told that.

If you're unsure, take specialist legal advice on the issue. It is a legitimate estate cost and it insulates you from any possibility of a claim against you personally.

I'm just off the phone to my own solicitor - who did not write the will - and he was quite amused.
He used almost exactly the same words as you did - "They can huff and puff all they like, but a verbal promise means nothing in Northern Irish law - they haven't got a leg to stand on"
He advised me I could either tell them to speak to their solicitor (and tell them they don't have any claim if I want to), or simply tell them to bugger off, and let them run up legal bills and then be told to bugger off by a magistrate.
I'm inclined to take the second option, as they aren't pleasant people regardless of any will or relationships.
Interestingly, the one nephew who has no complaint is a retired QC - I think he know's what's up.

[guindilias]

Greg66 said:

What does the will itself expressly say happens to the assets in her estate? By which I mean: leaving aside what she’s said or written in notes that aren’t the will, who are the beneficiaries on the face of the will? The wording you’ve outlined suggests that the answer is “no one”.

Edited by Greg66 on Wednesday 15th August 18:10

Sorry, I didn't type the whole lot out! There are beneficiaries, and they are named in the will - but a will that runs to 4 pages isn't something I'm going to type out. Her brother gets most of it, and rightly so - he is skint and has spent the last 15, 20 years looking after his severely disabled wife.

I have no desire to be rich, I am happy with what I have, which is why I wrote myself out of the will. Money doesn't make you happy. It does buy you hookers and coke, but that's a different discussion altogether!

[williaa68]

Lurking Lawyer said:

Yup - if all they've got is "She promised me...." then legally they don't get past first base. If they go and take advice if their own, they will almost certainly be told that.

If you're unsure, take specialist legal advice on the issue. It is a legitimate estate cost and it insulates you from any possibility of a claim against you personally.

This is good advice. Executors are personally liable so no real reason to take personal risk....

[guindilias]

williaa68 said:

This is good advice. Executors are personally liable so no real reason to take personal risk....

I will do. My father was chief partner in a large law firm over here - they normally do work for me for free regardless. Apparently the nephews are now arguing about a stuffed giraffe... "She said it was promised to me" - "But she said my daughter could have it!"

Does it ever end?
she may well live to be 100, and they are bickering over a stuffed fluffy toy... I might just take it out and burn the bloody thing, it must have eaten the wrong food and self-combusted...

[Sebring440]

guindilias said:

My father was chief partner in a large law firm over here - they normally do work for me for free regardless.

Can I ask, given the above, why are you looking for legal advice on an internet forum?

[guindilias]

About 4 posts up - I have.

[anonymous-user]

guindilias said:

Sorry, I didn't type the whole lot out! There are beneficiaries, and they are named in the will - but a will that runs to 4 pages isn't something I'm going to type out. Her brother gets most of it, and rightly so - he is skint and has spent the last 15, 20 years looking after his severely disabled wife.

I have no desire to be rich, I am happy with what I have, which is why I wrote myself out of the will. Money doesn't make you happy. It does buy you hookers and coke, but that's a different discussion altogether!

That’s ok.

You and the other executors (esp those who are also beneficiaries) need to take proper advice, by which I mean advice from a barrister rather than a solicitor. In particular you need to take advice on whether the will plus the letters plus whatever has been said between the testator and you/the other executor/beneficiaries creates a secret trust (google it).

As BV is fond of saying: IAAL but IANYL.

ETA: pm me if you want some recommendations.

[guindilias]

Greg66 said:

That’s ok.

You and the other executors (esp those who are also beneficiaries) need to take proper advice, by which I mean advice from a barrister rather than a solicitor. In particular you need to take advice on whether the will plus the letters plus whatever has been said between the testator and you/the other executor/beneficiaries creates a secret trust (google it).

As BV is fond of saying: IAAL but IANYL.

ETA: pm me if you want some recommendations.

Thanks. I don't see any harm in asking different solicitor's opinions on the next step - the lady isn't dead yet, but I prefer to be forewarned and ready for whatever may happen. I have a Barrister I use regularly - but of course he has to be instructed by a solicitor.
It may all come to nothing - but if things do kick off, I'd prefer to be prepared in advance!
Particularly about the ever so valuable fluffy giraffe...

[Sheepshanks]

guindilias said:

Apparently the nephews are now arguing about a stuffed giraffe... "She said it was promised to me" - "But she said my daughter could have it!"

I'm amazed it's still there - my wife's Godfather's distant family near stripped his house over the last year or so of his life. My wife was very upset that items she'd played with as a small child disappeared.

[HTP99]

Sheepshanks said:

guindilias said:

Apparently the nephews are now arguing about a stuffed giraffe... "She said it was promised to me" - "But she said my daughter could have it!"

I'm amazed it's still there - my wife's Godfather's distant family near stripped his house over the last year or so of his life. My wife was very upset that items she'd played with as a small child disappeared.

I remember as a child my dad proudly telling me that all his tools would eventually be mine, he had decades worth, with many being passed down by my grandad; his widow disposed of the lot when he died, I haven't a clue where they went and she wouldn't tell me.

His Police medals disappeared too, we never saw them.

it sounds weird but the tool that most reminds me of my dad was his spirit level, I had a hunch that things would go tits up so I took it before it all went sour.

[InitialDave]

IANAL, but I note what you wrote is explicitly that it's the wishes she expressed to you during her lifetime, not just anything she may or may not have said to anyone.