I’ve seen the same result arrived at via a settlement agreement signed off by all of the heirs. If everybody is in agreement, then you could have a Petition for Aid and Direction filed with the court, and then settle it with the heirs with a different distribution plan.
Another question: To whom is the executor’s duty owed, to the estate or to the heirs? Yes, I know that the two are usually the same, but it is actually possible for the interests of the estate and the heirs to differ.
Presumably the executor’s duty is to fulfill the will, and thus he owes a fiduciary duty to all the heirs equally; not to favour any one.
Presumably there’s a case to be made for suing the executor and the fantasy writers personally for the loss of money to the estate and their inattention to fiduciary duty… and possibly the lawyer for advising them so. Depends how much money you want to spend getting even.
Because such control would be ultra vires.
The will states that if the her wishes aren’t met, everything gets sold - the art, the building, everything - and the proceeds go to Harvard University. Given how litigious and avaricious Harvard is, they probably watch the place like a hawk, ready to swoop in with a lawsuit to shut the place down and pocket a few billion.
Okay, so if I’m understanding you correctly, the obligations imposed by the contract end when one party dies.
So let me propose some different scenarios. Let’s say George owns a house. He gives Bill a thousand dollars based on Bill’s agreement to come over and paint George’s house next week. There’s a contract between them. If Bill decides he doesn’t want to come over and paint the house, he can’t keep the thousand dollars. The money was only given to Bill in exchange for his promise to paint the house.
Now suppose George dies during the weekend. Can Bill then claim that the contract between them no longer exists and he no longer has any obligation to fulfill his end of it? Or is Bill still obligated to either paint the house or return the money, even though the person he had the agreement with is now dead?
Suppose it was Bill who died during the weekend. In this case, Bill can’t complete his end of the agreement. Can George tell Bill’s family to give back his thousand dollars? Can Bill’s family tell George that any agreement he had with Bill over painting the house ended with Bill’s death and they’re not bound by any promises Bill made before he died?
Suppose George died but then Bill showed up anyway to paint the house as promised. But Bill is met by George’s son who tells him they no longer want the house painted. Does Bill get to keep the thousand dollars?
The lawyer who taught the Contract Law course I took said you don’t get out of your contracts by dying. A “successor in interest” would have to be established, and the testator would be wise to allow for this when making the will.
After all, executors can die or be disqualified too.
Nope, it’s that a will is not a contract at all. A will is a one-sided document in which I decide how my property is to be disposed of. There is no requirement that I discuss it with my heirs and I can change it at whim with very few exceptions.
I believe one of the exceptions is when the potential heir relied on the promise of an inheritance to his or her detriment- for example, when on child works in the parents’ business because he was promised he would inherit the business if he did so, or when one child never marries or moves out of the parents’ because she was promised if she stayed at home and took care of her parents she would inherit the house. But it’s only enforceable in one direction- assuming, of course that the agreement can be proven somehow.
Let’s say Matilda agrees that she will never marry or leave her parents’ home and will take care of them when they are old, and her parents agree to leave their house to her alone , with no part going to her other siblings. If Matilda never marries, never leaves and takes care of the parents but the will only leaves 25% of the house to her, she may be able to sue and get the full value of the house.She already kept her part of the deal. The reverse, however, is not true. The person leaving the inheritance cannot rely to his detriment on the heir’s promise, simply because if the heir doesn’t keep the promise the person can change the will. If Matilda marries and moves a continent away , the parents can revise the will at any time they choose. If they didn’t, that means they chose to give Matilda the house even though they knew she didn’t keep her end of the “agreement” and the other heirs can’t do anything about it. That’s why there’s so much advice about keeping wills and beneficiary designations up to date regarding your current wishes. Because for the most part , courts are going to look at what the will says, not at what you might have wanted two divorces and thirty years after you signed it.
I realize that a will is not generally the same as a contract because there isn’t a consideration made by both parties.
But that wasn’t the case in the scenario I described. Junior gave an agreement to not break up the collection and John gave an agreement to give Junior the collection after he died. Does this exchange of considerations make the will a contract? Or is it impossible to make a will into a contract? And if it is impossible to make a will into a contract, how did people like Albert Barnes and Isabella Stewart Gardner arrange their bequests in a manner that bound people after their deaths?
Many wills list alternative beneficiaries (and executors) because people can die and things can change. Is it possible to list Bob in the will as an alternative beneficiary? Say there’s a statement that both Jr and Bob agree to keep the collection together and that the collection goes to Jr. But if Jr predeceases John or is unable to keep the collection together, the collection goes to Bob.
My guess would be that would give Bob standing. I don’t know if he could successfully sue for possession of the collection. And I don’t know what Bob could do if Jr sold the stamps on the sly instead of boasting about selling them.
Yes and no. That’s called a fee simple subject to executory interest. The classic example is: “O grants Blackacre to A and A’s heirs, but if A ever uses it for non-residential purposes, then to B and B’s heirs.” Blackacre is a fictional plot of land that has been irritating law students for generations. There is a similar formulation called a fee simple subject to condition subsequent, in which the ownership reverts to the grantor or his heir(s) rather than going to a third party.
The problem is that most jurisdictions do not recognize this sort of estate transfer for chattels (that is, “things that are not real estate”). So you can bequeath land this way but not a stamp collection. A better arrangement would be to create a trust whose corpus is the stamp collection, I think, but even that has limitations.
The contract is not the will. The contract is the agreement to make the will, in return for the undertaking. The contract was fulfilled once the undertaking was given and the will was made.
If you want to control what happens after your death to things that you used to own - and, remember, this is something that public policy does not encourage - you can’t do this in a legally enforceable way simply by getting an undertaking from a beneficiary that they will do what you want. Gardner, etc would probably have achieved this by establishing trusts and leaving assets to the trusts, the terms of the trust requiring the trustees to, e.g., conserve and exhibit the assets left to them in a museum run for the public benefit. Since that trust is charitable, it is valid and enforceable.
But don’t you also have to establish a way to make sure the trustees continue to get paid for their efforts? Are the trustees obligated to continue enforcing the terms of the trust after the money to pay them runs out?
If it’s a charitable trust run for the public benefit, you may find trustees willing to act without payment.
But, yeah, the charity needs to be viable. Perhaps as well as leaving them your painting, you leave them a large endowment to fund the operation of the gallery/museum. Perhaps they charge admission. Whatever.
In the end, if there is no money to maintain your bequest, then your bequest stops being maintained, no matter what you say in the will. Commonly the will will provide for a “gift over” in this event - e.g. I leave my paintings to my trustees to run a gallery for public education, but if they stop doing that then I leave my painting to Joe/to the National Gallyery/to be auctioned and the proceeds given to Joe/to an art school.
IANAL, but…
Of course, when John dies, Junior inherits his interest in the contract (ignoring the issue that there probably is not a contract). Since Junior has therefore inherited the obligation and the requirement, his left brain can decide to let his right brain sell the stamps individually, and as long as he is of one mind about the decision, nobody else can object.
(Sort of like Junior takes $1,000 to paint John’s house. John dies before the paint job starts. Junior inherits the house and the contractual obligation wholesale. He can decide whether or not to paint his own house.)
Now if there were additional heir who were stiffed out of valuable stamps because the will said “Junior gets the stamps and will undertake not to sell them in his lifetime” then maybe Junioretta can sue when he breaks that undertaking for her share of the proceeds.
Sounds like John would be better off trying to find a museum that’s interested in the stamps.
He would, definitely. The bottom line is that, once John is dead, John doesn’t own the stamps any more. (How can he? Dead people can’t own things.) So John’s wishes about what to do with the stamps he once owned have to be balanced against the wishes of an actual living person who actually owns the stamps. In any rational world, whose interests are likely to be accorded the greater weight?
What John can do is (a) leave the stamps to a person whose future wishes as regards the stamps he expects to coincide with his, John’s, present wishes. But he cannot guarantee that there will be no change of mind; that’s a risk he must run. And if John does this, and the legatee later changes his mind, there is nobody with either the legal standing or the personal interest to object.
Or (b) he can leave the stamps to a charitable trust (provided his views about how the stamps should be handled are basically charitable). There are structures designed to ensure the continuation of charitable trusts for the benefit of the public. But even here, John’s wishes are not cast-iron; the trustees of the day can always go to court and seek to have the terms of the trust varied if John’s wishes are no longer realistic or practical or in the public interest.
Unless the stamps are enormously valuable and John has other assets with which to endow the trust, to fund the conservation and display of the stamps, it’s not going to be practical for John to establish a dedicated trust for his stamp collection. So he leaves it to a philatelic museum, expressing the wish (which nobody is likely to enforce - he’s relying on the trustees being in accord with his wish) that his collection be kept and displayed together.
But in the end he can’t absolutely control what others may choose to do. And why should he be able to? By then, they won’t be his stamps; they’ll belong to someone who actually exists.
In the US, charitable trusts will often be enforced by state governments, too (obviously at no cost).
I’ve never heard of this. What jurisdictions allow executory interests in personal property? Florida?