Legal Question in Wills and Trusts in New York
What if an item is not specified in a will?
My father passed away last on 10/14/01. He left a will w/ mother as the executor.
My father wore a necklace that was a family heirloom dating back to the 1800's. I have an older brother & ''tradition'' was for it to be passed from father to son.
Five years ago my father, brother,& myself were present & I asked my father if I could have the necklace when he died. He said, yes. Both my brother and I witnessed this & another duplicate conversation 2 years later.My brother acknowledged my dad's wishes, for necklace to go to me. However, I was pressured from my patriarchal grandmother that taking the necklace would be ''disrespecting'' my father and my grandfather. I told my brother that he could have it. He took it and stated that, ''Dad wanted you to have it''.Again, in May he tried to give me back the necklace, again I thought I being was disrespecting so I declined. My brother went on to say that, ''I was cheating myself''. I finally stared to realize this was the case & have been actively pursuing the necklace back. My brother neither refuses to speak to me nor will reply to emails. However, I am positive there is NO mention of the necklace in this will. Is taking the will to probate the only way to settle this?
2 Answers from Attorneys
Re: What if an item is not specified in a will?
If it was not specifically granted to anyone it will be included in the residuary clause of the will and will pass under that provision. The will should be read. Oral agreements between the heirs do not affect the will.
Re: What if an item is not specified in a will?
If the item is not specifically specified in the Will, it may be covered by some general language (e.g., my jewelry shall go to "X"). If there is no such language, it may be covered by language that states something like - the balance of my estate goes to "X". This would then entitle the person getting the balance to anything not otherwise specifically provided. Since the agreement was oral with your father and brother, it will probably not be enforceable in the courts. Plus, the family tradition may come into play. I suggest writing your brother and asking that he include a provision in his Will leaving it to you if he will not do it voluntarily during his lifetime. You are involved in a moral, rather than legal matter - the promises are all that there is, with no legal rights coming from the oral discussions.
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