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My uncle’s will left us out – but he promised to

QMyuncle left all of his estate, including his savings, farm and land, to two animal charities. None of his family received anything.

We were shocked beyond belief that the animal charities received everything, because he said he would always make provision for us.

A land agent and a solicitor were named as executors by my uncle and I believe they have power to release the estate over a period of 21 years.

A second will was discovered after my uncle’s death, written in his handwriting, which did provide for his family. Since it was not signed or dated, it was stated to be invalid.

It would seem the two executors have carte blanche to use the money as they see fit.

My family members and I are seeking accountability and transparency as to what has happened to all of the estate, which we know will have been valued at millions of pounds. We would like to know how much the two executors have personally pocketed for their services and what we can do to insist on transparency.

– Lisa, by email

AIn

England and Wales, we enjoy “testamentary freedom”. This means we may leave our estate on death to whomever we wish. But, as with any rule, there are exceptions. It is, therefore, established law that we have a duty to make reasonable financial provision for certain defined persons, most often spouses, partners and children. I assume that your uncle was unmarried with no children, so he will have been unlikely to have any legal duty to provide for any family members.

Even so, you are disappointed your uncle promised to provide for his family but this has not occurred. There are only very limited circumstances where such a promise is legally binding. Promises that can be enforced in law require “detriment” on the part of the person who had the promise made to them (the classic example being a relative working on a farm for no or little wage on the promise of “one day all this will be yours”).

It is indisputable that a will that has not been signed, dated or indeed witnessed correctly is not valid.

However, you could argue that the handwritten document you have found is in effect a statement by your uncle setting out his wishes for provision to be made for his family.

On that basis it is a reason in law for you to contact the two animal charities that benefit from the valid will to see if they will entertain making an ex gratia payment to the family. Such a payment will require compelling evidence as to why it is morally justified, but even if you do not pursue or agree that, charity beneficiaries of wills are usually very pleased to hear from family members and will want to know how best to give thanks for, and commemorate, the deceased donor.

An ex gratia payment is one a charity is under no legal obligation to make, but one that its trustees feel they have a moral duty to fulfil.

The Charities Act 2022 has simplified the procedure for charities to make ex gratia payments.

But you must be realistic that any ex gratia payment will only ever be a small proportion of the whole estate, and agreement from charities to such payments is rare. But asking will give you a foot in the door in terms of the questions you want answers to.

It is prerequisite of seeking an ex gratia payment that you accept as valid the will naming the animal charities as beneficiaries. If the will names two particular charities as beneficiaries it is not correct to say the executors have “carte blanche” to do as they wish. Rather, the executors have a very clear and specific legal duty to apply the capital and income arising from the estate for the benefit of those two charities.

With regard to your desire for accountability and transparency, your uncle’s legal affairs and finances are fundamentally confidential to him and his executors; being a relative does not give you a special right to pry.

The rule of confidentiality is there for good reason.

After a person has died and if the estate is one where probate is required, their will is published and, therefore, available for anyone to obtain a copy for a small fee. A copy of the grant of probate is also obtainable and that will tell you the gross and net (less inheritance tax and other expenses) value of the estate.

As family members not named in the apparently valid will of your uncle, you have no legal right to seek information from the professional executors, but you may obtain the information you desire by getting on board with the two charity beneficiaries. Having a conversation with them may allow you to find out the details of the legal and administrative expenses claimed by the executors.

A harder approach is by invoking the legal requirement for all charities to be transparent with their beneficiaries as to the sources of their funding and provide a breakdown of how legacy funds have accrued. If you take the value of the estate on the grant of probate and compare that with the value of the gift from the will as shown in the published charity’s accounts, you will get an idea of the figures involved and who has pocketed what.