Some advantages of keeping chattels out of residue... | DDLSBulletin


Some advantages of keeping chattels out of residue:

If someone wishes to bequeath their residuary estate (or a share in it) to a registered charity or charities, it is a good idea to make sure personal effects do not fall into the residue. 

Many years ago I encountered this – in a will a predecessor had drafted which also appointed the firm I then worked for as executors - and the charity in question insisted on sending volunteers to the house to take away items to sell in its local charity shop; also they would not permit any family members to have any sentimental items unless they bought them at a value ascribed by one of their advisors. 

One of the items was an album of old family photographs. From that day forth, every will I have drafted in that situation has contained a specific gift of household contents and personal effects as below either to the will Trustees or to a trusted friend or relative.

 “I GIVE my household contents and personal possessions to my Trustees and it is my wish without imposing a legal obligation that they should within two years of my death sell or otherwise dispose of the said items at their discretion amongst family (including themselves) friends and charities taking into account any wishes I [or my late spouse] have made known to them whilst one or both of us were alive (but any written memorandum of wishes deposited with this my Will is not to be regarded as part of this my Will) and any sale proceeds net of sale costs shall be credited to my residuary estate”

Indeed such a clause can be useful in other situations such as:

if any residuary beneficiary is or might be a minor who cannot consent to a broad brush approach when it comes to dealing with such items.

Where the firm is appointed executor, if the contents can be left to an individual on a similar basis, you do not have to spend uneconomical hours sorting through items or indeed have responsibility for them for very long.

Sharing out the personal belongings is not an interim distribution of residue, which it would otherwise technically be the will need not contain a large number of specific gifts of small items with the risk of them not being found after death (due to breakage, loss, theft, or decluttering forgetting what’s in the will).

One caveat would be that if the client is concerned about disagreements between family members over who has what, there may be merit in an express clause calling for sale of everything not specifically bequeathed because the trustees would not be able to hide behind the general trust for sale that appears in many wills prior the dispositions of residue.

This edition of “Words of Wisdom” are from Chris Green, who is an Associate member of DDLS, having retired as a Solicitor in 2010 after 22 years of private practice in Ashbourne. Chris still undertakes some locum paralegal work.