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Ask Clare Your Own Question
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34106
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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I am one of seven children, my father passed away and left

Resolved Question:

I am one of seven children, my father passed away and
left a will regarding money but there has been dispute about items
that the executor (my eldest sister) has decided the distribution of.
My question is:
Has the executor the legal right to decide the distribution
Of items not identified in the will, even if this distribution mm
Is against the wish of the majority of the children?
Many thanks
Tim Whittle
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. As a general principle of law, an executor has no power to decide the distribution of items. The executor is duty bound to implement the terms of the will. Unless there was a defect in the will, the executor has absolutely no role in deciding who gets what, in relation to an estate. Accordingly, your eldest sister here has taken a power onto herself which she doesn't possess. It makes no difference that items weren't identified in the will. If they weren't identified, then they fall into the residue clause and fall to be dealt with in accordance with that clause. Not by your sister.
Customer: replied 1 year ago.
Don't know what the residue clause is!
Does this clause say who does decide?
Thanks
Tim W
Expert:  Clare replied 1 year ago.
HiThank you for your questionMy name is ***** ***** do my best to help you but I need some further information firstWhat exactly is it that you sister has done that you are concerned about?
Expert:  Buachaill replied 1 year ago.
2. Dear *****, the residue clause is the final clause in a will which states what is to happen with what is left over and has not been mentioned in the will. In your situation, your sister is dealing with items which she believes haven't been mentioned in the will. The point is that these unmentioned items are dealt with in accordance with the residue clause.
3. Kindly ignore the other post. It is rather like having an elephant on the lawn!
Expert:  Clare replied 1 year ago.
Hi
For clarity, as executor your sister is entitled to decide how to dispose of any items not specifically referred to in the Will as part of her job of liquidating the assets
So the answer your your question is that yes your sister does indeed have this power even if her siblings object.
Clare
Customer: replied 1 year ago.
Hi
I'm a bit concerned that the answers are poles apart! If the executor can decide -what is the purpose of the residue clause?
Please can you confirm which response is correct, with a legal reference so I can decide what to do next.
Many thanks *****
Expert:  Clare replied 1 year ago.
Hi
For clarity what exactly has your sister done/proposed that you object to?
Clare
Customer: replied 1 year ago.
The dispute is about a photograph album/recent history record that the majority (4 of 7) believe should be returned to its maker which is not the wish of the executor. There were no specific instructions regarding such items in my father's will.
Thanks
Tim Whittle
Expert:  Clare replied 1 year ago.
Was this a gift to the deceased?
Customer: replied 1 year ago.
No it was created by one of his daughters to help my father recall his past as his memory failed.
Expert:  Clare replied 1 year ago.
Hi
In fact we (eventually) each gave the same answer.
It is the duty of the executor to carry out the wishes of the deceased as set out in the Will.
They must obey any specific instructions given in the will
as in
"my picture of xxx to xxx"
"my collection of prints to xxx" etc
Anything that isn't specifically gifted falls into Residue to be dealt with by the Executor who must liquidate the assets and dispose of the rest of the estate and distribute the proceeds in whatever way the Will dictates.
The power to deal with the residue lies with the Executor and accordingly your sister can indeed dispose of this item as she thinks fit
(see my colleagues answer marked 2 above)
Given that the item has no intrinsic value there is no basis on which her decision can be challenged although at best it seems unkind
A brief outline of the duties of the executor are set out here
http://www.probaters.com/probate-explained/what-to-do-after-a-death/duties-of-executors/
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34106
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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