Legal Question in Wills and Trusts in Washington
What recourse do we have when the Executor does not follow the will, and things listed in the will are now missing? She says as Executor she can take anything she wants, and is selling the house to her daughter, the price is in the hands of a Realtor she knows but is rumored to be less than the appraisal. Do the statements from the will that follow allow this?
Section 2. Personal Representative (Executor)
2.3 My Personal Representative shall have full power: to sell, convey and encumber, without notice or confirmation, any assets of my estate, real or personal, at such prices and terms as may seem just to my Personal Representative; to mortgage or pledge any Estate property; to continue any or all of my business operations; to invest and reinvest any assets of my Estate; to advance funds and borrow money, secured or unsecured, from any source; and to select any part of the Estate in satisfaction of any partition or distribution there under, in kind, in money or both. Such powers may be exercised whether or not necessary for the administration of my Estate.
Section 3. Specific Gifts
I hereby give, devise and bequeath the following specific items to my five children.
(A list follows stating what each child is to receive. Following is one item listed.)
The 18 inch pearl necklace, was the best quality available 55 years ago when purchased as a gift from my wife�s dad to her mom on their wedding day as his gift to his bride, and was to be given to my wife in the will. It was in her jewelry box when she died and now all of a sudden is missing and the Personal Representative / Executor, who is an older sister and is the only person with a key and she won't allow anyone else in the house.
Section 5. Residuary Estate
The remainder of the Estate, I give to my five children in equal one fifth (1/5) shares, and lists the 5 children by name.
Section 6. Contest
The gift, devise or bequest awarded to any individual named herein who contests any provision of this will in any manner shall be deemed lapsed, and that person shall be held to have predeceased me and thereby take nothing from his or her contest, regardless of the outcome. In addition, any child who contests any provision of this will shall be held to pay all attorney fees and costs of all parties concerned with or involved in said litigation or contest.
Because of this my wife is afraid to ask any questions, but I am not in the will so I am asking for her.
David, spouse of one daughter.
1 Answer from Attorneys
There are a lot of questions that need to be answered to get a complete picture, but the terms of the will are suspect in their liberality. If a challenge to the capacity of the decedent is to be made as to your mother in law's mental capacity or her possibly being subjected to "undue influence" in making her will, you or your wife would would not need to challenge theTERMS of the will, so the "in terrorem clause should not come into play. A thorough understanding of all of the relevant facts andoyer are needed to determine the risk/benefit ratio.
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