Estate planning: What a 'promise' means in a will - MoneySense

What a ‘promise’ means in legal terms

Kathy was promised a gift in her stepmother’s will. But the executor sold it before she could claim it. Is she legally entitled?

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Q: My stepmother passed away and she had left me my mom and dad’s dining room set. However, the executor of the will sold it. Is there anything I can do about this?

—Kathy

A: Dear Kathy, was your dining room gift included in your step mother’s will? You did not mention this, but it is crucial to any answer. My answer needs to draw distinctions between types of promises which create obligations. There are important differences between promises with legal or moral obligations.

Promises that are written may be legally binding. Verbal promises may only create moral obligations that are not legally binding.

If your gift is in a will, you have rights to enforce this promise. If this gift was not in writing, you have moral rights. Moral obligations are not usually enforced by courts.

Gifts are normally delivered as a birthday gift. If gifts are not delivered, you must prove a gift was intended. This is difficult without something in writing.

If your gift is mentioned in the will, you have some recourse. Written gifts can be enforced. However, the items must exist at the time of your step mother’s passing. Your stepmother could have downsized and sold this set before she died. It would therefore not exist at the time of death, which means you wouldn’t be entitled to the gift.

You say, however, the executor sold the dining room set. This suggests the sale took place after your step mother’s death. Did the executor fail to follow the terms of the last will?  If so, they can be held legally responsible for breach of trust. You may have a remedy against the executor personally. Executors are personally liable for failing to comply with instructions in wills.

The remedy you can enforce may depend on what losses you suffered. There may not be any compensation for the pain of your loss. Did you want to leave this set to your beneficiaries in your own will? You may not be compensated for this loss.

Ask for a copy of the will and see a lawyer about your options.

If you are not in the will, then your remedies are limited.

Ed Olkovich is a Toronto lawyer and certified specialist in Estate and Trusts Law

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