unwilling executor

[ShadyBrady]

Can a person who wishes a son to deal with his funeral say to the son :"Pay the expenses and keep the rest of the money" when there are other children and the wife is dead?

Can the parent make a will to this effect? And if so could it be challenged by the others sons?

It is a messy situation where the executor does not want to be the executor and the parent says he would not ask the others.

Furthermore, the executor would not be involved in any way in giving money to the others because of the way they treated said parent when he is sick and they would not even visit him. Also because of the way one of the sons wives took financial advantage of executor's late mother

Also the executor does not want all the money and does not care if the others get some but he will not be party to giving it to them.

The best thing would be if he was not executor but parent wants that.

 

[mathepac]

... Can the parent make a will to this effect? ...

Yes

... And if so could it be challenged by the others sons? ...

In theory any will can be challenged. Whether a challenge is advisable or successful are different matters.

... The best thing would be if he was not executor but parent wants that.

A named executor is under no legal obligation to take on the role, the work or the responsibilities; they may be happy to carry out the wishes of the deceased parent as detailed in the will, but they cannot be compelled to.

 

[ShadyBrady]

Thanks. I understand the person cannot be forced to be executor but wants to fulfill the parents wishes. But he does not want to seem to pressure to parent to make a will in his favour even though the parent says this is what he wants.

The others may challenge on the claim that parent was pressured and the wished exec does not want any contact with them in or out of court.

The only one thing he is adamant about is he would not be a channel to money for them, would not arrange for money to go to them or be in any way associated with the giving of money to them.

 

[Padraigb]

It seems to me that the solution in this situation is for the father to make a will disposing of his property however he wishes, and appointing an executor who is not one of his children. It might be a solicitor, who would expect to be paid, or a trusted friend who would be entitled only to expenses (but who would have the right to appoint a solicitor to do the work for payment).

 

[ShadyBrady]

It seems to me that the solution in this situation is for the father to make a will disposing of his property however he wishes, and appointing an executor who is not one of his children. It might be a solicitor, who would expect to be paid, or a trusted friend who would be entitled only to expenses (but who would have the right to appoint a solicitor to do the work for payment).

I agree

 

[lawrose]

+1

Also, when the parent is making their will they should ensure they give the solicitor specific instructions as to why they are leaving the bulk of their estate to one of their children to the exclusion of the others.

If a solicitor has detailed notes supporting such a will, it could be very difficult for the other children to challenge said will.

Under Irish succession law, children who are left out of a will, or who feel they did not receive their "rightful" share can take a Section 117 action against the executor/estate. They must establish to the court that their exclusion by the parent/testator was not fair or right - this is a major simplification of what is a huge area of probate litigation!

If the solicitor who drafted the testator's will can show that the parent was fully advised about Section 117 and the potential consequences of leaving out one or more children from their will, AND that the testator appeared to have fully considered the issue and each child's respective circumstances, such notes accompanying a will should be able to defeat any potential claim.

In a lot of these cases, the children who lose out will start claiming their was duress or "undue influence" of the parent by the child who inherits all. To counter this it is essential that the parent warns their solicitor that such a claim might be put forward. In these circumstances, the parent should be sent to be assessed by a doctor and a certificate of mental competence be furnished back to the solicitor. The solicitor should meet the parent on their own, and should be vigorous in their questioning to ensure that there is no issue of duress.

 

[ShadyBrady]

If a solicitor has detailed notes supporting such a will, it could be very difficult for the other children to challenge said will.

@lawrose:Would the fact they did not make any effort in care of parent weaken thir case?