Most people collect a lot of ‘stuff’ over the course of their lives. Some valuable in real monetary terms, and some valuable from a sentimental perspective. Much of these personal possessions fall under the definition of ‘personal chattels’.
Personal chattels are defined by s55(1)(x) of the Administration of Estates 1925 as amended by the Inheritance and Trustees’ Powers Act 2014. This definition broadly covers all ‘tangible moveable property’ other than property used solely or mainly for business purposes or held as an investment.
When it comes to dealing with personal chattels in the will there are a few options available:
- They could be left to the residue to be distributed but this could cause disputes between family members. Disputes about the destination of chattels can often turn bitter, often because of the sentimental value attached to them.
- The chattels could be gifted specifically in the will, but it may be impractical to make a long list of chattels and their recipients. It is also impractical for the testator to execute a codicil or a new will every time they wish to change the destination of a chattel or add or remove a chattel or beneficiary.
- Leave all the chattels to a specific person, usually the executor, with a request that they distribute the chattels according to a separate letter of wishes left with the will.
The third option is the most flexible for the testator as it allows them to keep a list of chattels and beneficiaries that can be kept up to date and can evolve as their possessions and wishes change or their family grows. This list can be changed after the will has been signed and does not need to follow any formalities itself. This avoids having to redraft the will or execute a codicil should the testator’s wishes for their personal chattels change.
From a drafting perspective there are several things you should be careful of. Firstly, make sure that no specific letter of wishes is referred to as being in existence at the time the will is executed. This would have the effect of incorporating the document into the will and meaning that it would not be possible to change the letter without re-executing the will or writing a codicil. Refer to the letter generally as ‘any letter of wishes left by me’ rather that ‘my letter of wishes dated [date]’ for example.
Consider whether the clause you use to define the chattels needs expanding to cover any chattels used for business purposes or held as an investment, as the statutory definition excludes these.
Advise the testator to make sure the items described in the list are clearly identified as this goes a long way towards helping avoid arguments. They should also be advised to destroy any old lists if they write a new one, again to avoid unnecessary arguments after their death.
Finally, the testator must also be advised of the pitfall of this approach to dealing with chattels. Legally speaking the will gifts the chattels to the nominated person absolutely and only expresses the wish that they distribute them accordingly (hence the term precatory trust, from the Latin precari ‘to pray’). In theory this person could take the chattels for themselves as they only have a moral obligation to distribute. In practice though this rarely causes an issue when the items are left to the executors and a clear letter of wishes is discovered.
6th July 2020 at 6:33 pm
I live in Canada and my Aunt, who lived in the UK, recently passed away. In her Will, she left the chattels in her home to a number of family members who live in Canada and some who live in the UK. My question for you is: should my Aunt’s estate pay to ship items to beneficiaries in Canada, or should the beneficiaries cover their own shipping costs for any items they would like to have? Likewise for professional packing costs, e.g. artwork. The Will doesn’t address this, and only one item is bequeathed (a painting). Should the estate cover the cost of packing and shipping bequeathed items?
Also, once a Grant of Representation has been granted, can my Aunt’s house then be listed for sale? (And, the rest of the steps in the probate process completed after the house is listed/sold.)
Many thanks for your help!
7th July 2020 at 3:39 pm
If the will includes no direction on who shoulders the cost of transport, packaging, and insurance of specific items then the default is that it is the beneficiary receiving the gift who is responsible for paying these costs and not the estate.
I’m afraid we can’t comment on whether the property can be listed for sale once the grant has been obtained. This would depend on any specific provisions for the property in the will. We would recommend seeking advice from a probate specialist if you are unsure about any stage of the probate process or how the estate should be administered.
6th September 2020 at 12:31 pm
Is there a default for what happens if some named individuals on the chattels are no longer with us? Do the items go to the Executor of the will to decide how to distribute them, or go to the children/spouse of the named individual?
8th September 2020 at 2:39 pm
It essentially depends on how the clause itself was drafted. Some clauses are drafted in a way which gifts the chattels to the existing spouse with a fallback to the executors with a request that the chattels are distributed in accordance with any letter of wishes, therefore I’m afraid it is hard for us to advise without having sight of the clause itself.