I am often asked if an unusual provision or direction in a Will is valid and binding on the Executor. For example, what are the Executor’s duties and legal obligations if faced with, say, peculiar or whimsical funereal wishes or, quite commonly, a direction to humanely destroy pets? Will compliance by the Executor leave them open to criticism from beneficiaries and family members or even personal prosecution?
Not all directions made by a Willmaker are valid and binding on an Executor. In this article, I look back at two former clients and the difficulty I had deciding whether to follow through with certain directions in their Wills.
Directions given in respect of funereal wishes are usually reasonable and easily achievable but occasionally such directions become questionable. A former client expressed the wish that her ashes be taken by her Executor personally to be scattered at the foot of a mountain near her birthplace in the West Indies. The Executor was understandably reluctant to make such a trip even though the costs were to be met by the estate. After some deliberation and consultation with family and beneficiaries alternative arrangements were made which did not involve the Executor directly. The decision was made on the basis that the direction was a “mere whim” of the Willmaker.
Many years ago, myself and my then senior partner (the Executor) were confronted with a pet destruction clause. The subject of the direction was a young and healthy Jack Russell Terrier named “Benji”. We decided not to follow the direction on the basis that it was not legally binding and served no useful purpose and we were also quite confident that such a young and healthy dog could be rehomed. In the event, Benji was “dog-napped” by a quick-thinking neighbour who knew of the direction and whisked him away to a safe-house in the south-east of England. We had no intention of wasting estate money on a “wild Benji chase” and so decided to let sleeping dogs lie so to speak. Whilst Benji’s removal neatly solved our dilemma, the neighbour who was linked to the media released the story to press and TV. Benji quickly became a local, national and international celebrity! We could only speculate at the ramifications had we chosen to follow the destruction clause and we felt that RSPCA prosecution would have been a definite possibility.
An Executor should carefully consider any intended actions requested by a Willmaker. The fact that a direction is contained in a perfectly valid Will does not mean that it is justified. Consider whether the direction and subsequent action may be construed as:
- A waste of estate funds leading to possible criticism from beneficiaries and personal liability for the Executor
- Contrary to public opinion
If in doubt take sound legal advice and err on the side of caution.
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