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Tuesday, March 22, 2016

What if the deceased said he wanted one thing but the executor did something different?

What if the deceased described some wishes to you that were not the same as those in the will? What is the executor supposed to do with that information? A reader asked me a question along these lines. His question and my comments are below:

"If you had a privilege discussion with a loved one about what they wanted and the executor of the estate did something different, what can you do?"

A question this vague is difficult for me to answer in a helpful way, but I'll give it a shot anyway.

I am not sure what you intended to convey by referring to the discussion as privileged. Normally, to my mind, a privileged discussion is one that is protected in terms of confidentiality, such as a conversation between a lawyer and client, or between doctor and patient. However, that doesn't appear to be what you mean since you expected the contents of that discussion to be known and followed. For the purpose of answering this question, I'm going to have to ignore that word.

You haven't said what role you play in this scenario (potential beneficiary, family member, etc) and you didn't say what kind of wishes you're talking about. You could mean anything from funeral and cremation instructions right through to distribution of the estate. Therefore my answer is going to have to be much more general than it would be if I knew what kind of wishes were involved.

You mentioned an executor as opposed to an administrator, so I take it there is a valid will in place. If so, then the executor is bound by law to follow what is in the will. The law presumes that the written instructions in the will are actually the last wishes of the deceased.

An exception to the rule that the executor must follow what's in the will is that of dealing with the deceased's remains. Even if the deceased left detailed wishes in the will, the executor of the estate is allowed to go against those wishes and deal with the remains in the way that he or she feels is the most appropriate.

It appears to me that in your scenario, what the deceased told you he or she wants is not the same as what is in the will. I believe you are saying that the conflict is not between the executor and the will, but the verbally expressed wishes and the will. Are you asking why an executor won't follow the deceased's verbal instructions to you as opposed to what the will says?

I hope you can see that an executor couldn't possibly veer away from the will on the basis of another person saying that the will doesn't express what the deceased "really" wanted. If that's your question, then your answer is simply that you cannot do anything about it because the executor is doing what he is supposed to be doing.

The discussion you had with the deceased has no legal weight. If the deceased no longer wanted what was contained in the will, he or she should have made a new will, or at least destroyed the old one. Telling someone verbally that you want something different is of no help at all. Wills are only valid if they are written down.

4 comments:

  1. Excellent Question and reply.
    I have a situation as the executor of a Will. The Will is clear as to the wishes. A disgruntled beneficiary claims that mother gave her a money gift. There is no document that supports that. The beneficiary's lawyer supports the beneficiary by responding, "it's a directive from the Will writer". I understand that lawyers should be loyal to their clients but this lawyer is hoping to fool someone, me. This beneficiary never revealed this gift during my discovery when the Will was discussed. I found out about a GIC at a bank. A bank account that I was closing out. One that the beneficiary as POA was in control of. That GIC is currently in the beneficiary's personal account.TBC

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  2. My friends daughter is living this now, her father left her quite a substantial amount in trust, the executor recently "lost" 250 grand in a bad investment or so he says. She will be 18 in Oct/16 and her inheritance will be paid out when she is 25. At this rate there will not be any left. What can she do?

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  3. I am not a lawyer but I believe she will have to retain a good lawyer, an honest lawyer who does his job. She will have to take the executor to Court to provide complete details of his investment(s). It will cost money upfront to try and 'get to the bottom of this'. Another Estate horror story. IMHO.

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  4. Correction. Should be lawyer who does his/her job.

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