The Lemon Fool

swill453 wrote:

Lootman wrote:I would also offer up: "ex dolo malo non oritur actio, nullus commodum capere potest de iniuria sua propria" and "ex iniuria ius non oritur". Otherwise known as the clean hands doctrine, for those actions where I act in good faith and derive no personal benefit.

I don't think that can apply in the case of an executor. Take the case where unknown debts of the deceased come to light after the estate has been distributed.

The executor may have acted in good faith* but can they not be held personally liable?

(* - good faith but not great diligence )

I believe that the important word there is "diligence".

So in the case where a debt of the estate comes to light after the executor has distributed the assets, then that executor MAY be held personally liable. But only where he failed to take reasonable steps to discover that debt.

Same with a case where a gift was made prior to death that was not discovered. The crucial issue is not so much that the executor failed to find it but rather whether he should have found it in those circumstances.

It all leads back to how far an executor should go to meet the required standard.

"Take the case where unknown debts of the deceased come to light after the estate has been distributed."

I think there might be some protection if it has been reported in "The Gazette" I believe there is a six month period for creditors to stake a claim.

scrumpyjack wrote:If you know who the executor is, you should ask him/her if it is OK to do what you propose and suggesting a sensible valuation of the tools. You could suggest that the estimated value of the tools should be included in the distribution calculation as part of your share.

That is probably a sensible suggestion but.....

If I claimed no knowledge and denied everything or anything !

Just leave the executor with the problem of sorting it out afterwards. Almost as if the tools didn't exist.

The other beneficiary is unlikely to want to take any legal action

Reading through the entire thread, I would say the OP can cover himself if he speaks to the executor and tells him what he is proposing to do. The executor is in control and if he says that is fine then that should be an end to the matter. Mention was made about some of the tools being nearly new and that might make a difference as they may have some significant value but it is for the executor to decide.

Morals I do not think come into it but legalities do.

Dod

Dod101 wrote:Reading through the entire thread, I would say the OP can cover himself if he speaks to the executor and tells him what he is proposing to do. The executor is in control and if he says that is fine then that should be an end to the matter. Mention was made about some of the tools being nearly new and that might make a difference as they may have some significant value but it is for the executor to decide.

Morals I do not think come into it but legalities do.

Dod

I concur.
(...with an addendum that trying to avoid the legalities might bring morals in to it )

I have rather a lot of tools built up over my lifetime. Some are well worn, whereas some are barely used. The larger items - model engineering items - are hardly top drawer stuff either, so much so that given where I live (resulting in high travel costs for buyers etc), it will be easier for my executors to scrap the lot rather than incur any charges, plus avoiding the making of arrangements, by any commercial firm who might take them away.

I haven't written anything into my will, but I have produced a document explaining how I envisage my wife will be looked after financially by our children, and in which I have given some thoughts about my tooling. This has had one beneficial aspect in that I have alrready scrapped some old analogue electronic test equipment, after all, who wants a valve operated sine-square generator dating from the 1960's? And, of course, most of this stuff is out of calibration and/or faulty. So get rid before I say bye-bye.

What I have considered especially with the engineering equipment is allowing my grandchildren, or rather the two grandsons 'cos I really can't see the granddaughters being interested, to have free rein and take anything they want.

To give just one example, the largest item I have is a lathe, and it's definitely not one of the best. Occasionally one sees this model appear on the s/h market, usually at about £200. So how much would a firm pay for that machine especially after travelling a few hundred miles to view and possibly collect it?

It is a problem, not made any easier by either my location, or by the fact that neither of my sons have shown any interest in what I have accumulated.

What it boils down to is that selling the items is going to obtain so little in return, that they may as well be classed as nil value and scrapped. Plus, that no-one really knows what I've got, indeed I'm not too sure what I've got either!

Cheers,

ten0rman

ten0rman wrote:It is a problem, not made any easier by either my location, or by the fact that neither of my sons have shown any interest in what I have accumulated.

What it boils down to is that selling the items is going to obtain so little in return, that they may as well be classed as nil value and scrapped. Plus, that no-one really knows what I've got, indeed I'm not too sure what I've got either!

My father was a cabinet maker and had some high quality woodworking tools from the 1930s. (He never used power tools even when they became plentiful and cheap).

My sons show no interest in them and so I decided it was better to give them away to someone who had a genuine interest in such things. It is not hard to find a new owner if you give things away for free.

Again thanks for all the replies.

There seems to be a train of thought that if the value is low that it might not be an issue.

What if the things taken totaled several thousand pounds. When does it change from something of little consequence to a potentially real issue.

If the other beneficiary notices the missing items and the high value, is the executor being thrown under the bus.

Gerry557 wrote:Again thanks for all the replies.

There seems to be a train of thought that if the value is low that it might not be an issue.

What if the things taken totaled several thousand pounds. When does it change from something of little consequence to a potentially real issue.

If the other beneficiary notices the missing items and the high value, is the executor being thrown under the bus.

Why would the executor have any liability if you took them (gave them away)?

If they were yours to give away, there's no problem. If not, it's potentially theft.

Scott.

swill453 wrote:

Gerry557 wrote:Again thanks for all the replies.

There seems to be a train of thought that if the value is low that it might not be an issue.

What if the things taken totaled several thousand pounds. When does it change from something of little consequence to a potentially real issue.

If the other beneficiary notices the missing items and the high value, is the executor being thrown under the bus.

Why would the executor have any liability if you took them (gave them away)?

If they were yours to give away, there's no problem. If not, it's potentially theft.

Scott.

Scott, I think it comes under responsibility of an executor and the questions are trying to find out exactly how the situation would be interpreted.

Is it theft?
Is it a liability on the executor?

Gerry557 wrote:

swill453 wrote:Why would the executor have any liability if you took them (gave them away)?

If they were yours to give away, there's no problem. If not, it's potentially theft.

Scott.

Scott, I think it comes under responsibility of an executor and the questions are trying to find out exactly how the situation would be interpreted.

Is it theft?
Is it a liability on the executor?

In your (evolving) scenario:
- you are not the executor
- you are a beneficiary
- the items are of significant value
- it's unclear (or you haven't disclosed) whether the items have been left to you
- you somehow have access to them
- you give them to a 3rd party

It's hard to see how the executor is at fault here.

Scott.

Gerry557 wrote:Again thanks for all the replies.

There seems to be a train of thought that if the value is low that it might not be an issue.

What if the things taken totaled several thousand pounds. When does it change from something of little consequence to a potentially real issue.

If the other beneficiary notices the missing items and the high value, is the executor being thrown under the bus.

If the items have no second hand value and the other beneficiary doesn't want them, then there is no problem IMO. Otherwise really you should approach the executor to deal with them, maybe assign an estimated value and take it out of your share? I know when my dad died I took some stuff gave a value of £200 or so and that was included in the accounts - my brother was the other beneficiary and there were professional executors, but they were happy for us to clear the house.

Gersemi wrote:Otherwise really you should approach the executor to deal with them, maybe assign an estimated value and take it out of your share?

This is so transparently the right answer, it is unclear why the OP isn't following this approach. There must either be some additional context we are not aware of (maybe an awkward co-beneficiary) or there is something going on that means they are unwilling to reveal the intended action to the executor.

Certainly, if the items are worth several thousands of pounds then it's not an entirely trivial matter.

Thanks for all the replies and opinions.

This was a hypothetical question based on a real similar incident.

I'm informed that the issue has gone away. A police report was made but after discussion with them it resulted in record keeping rather than action. Although it could have been pressed, there was always going to be issues of finding proof and evidence. I think family dynamics also played a part.

I was an executor at the time and tried to see both sides. Families and money can be strange at times.

Do dogs complain when you leave it all to the cats home

Gerry557 wrote:Do dogs complain when you leave it all to the cats home

No, but that sounds a bit ruff