John's family plays the board game Monopoly at each and every family gathering. Birthday parties, Christmas, whatever -- the board game comes out. When it came time to make his will, John told his lawyer he had an idea. John had beautiful and valuable antique furniture. Could he have his nieces and nephews play a game of Monopoly and have the winner of the game take all of the furniture as an inheritance?
The idea is not a new one. A rich and eccentric English gentleman owned a palatial house in the tropics and, in his will, directed his nephews to gather there after his death and throw dice. The nephew able to throw the highest number would win the mansion. When the gentleman died, the executor followed the terms of the will. He invited the nephews to make the trip to the island and try their hand with the dice. The executor made the trip, as well, to supervise the process. Three nephews took turns throwing a pair of dice. One lucky nephew walked away with the deed to the property. The result was upheld in court. A game of chance is an acceptable legal mechanism to give away specific property under a will.
John's story is real. The names involved and some of the details have been changed to preserve confidentiality.
Most of us will be less flamboyant when it comes time to give away our personal effects. We have items such as jewelry, tools, papers and golf clubs, as well as furniture. What are the more common options included in wills to give those items away at death?
First, you can be silent on point. If the will does not specifically deal with your personal effects, then those items will be disposed of at the discretion of the person you name as executor under the will. The executor can sell them or give them to the beneficiaries entitled to inherit the final balance of your estate under the will. Items of little value might be given to charity or taken to the dump.
Second, you can have a clause that directs your children or other beneficiaries to get together and try to agree on who gets what. The executor has to be given the final say.
Third, you can leave the final say with the executor but leave guidance in the form of a list you make from time to time and store alongside the will. The will directs the executor to look for the list and give it effect by giving out the items to the persons named to receive them. That option is flexible but not binding. If any heir entitled to the body of the estate objects, the item or the cash from its sale has to be kept and given to them. As a variant, some people put labels on each item of value in their house. Flip over a table -- you will find a note on the bottom of it saying, "Jane's." Again, that is a convenient solution but non-binding.
Fourth, you can write a list of specific gifts right into the will before you sign it. The will has to be clear. An example might read, "Give my painting of three dogs playing poker to my friend Bob Smith." This kind of clause is binding. No matter how much some other beneficiary might like the painting, they cannot thwart Bob.
Fifth, a rotating-pick system is often built into wills. If you have four children, you would direct they draw numbers out of a hat, from one to four. The numbers set the order in which they pick items. The person with number one picks first, the person with number two picks second and so on. They rotate through that list over and over until they drop out when nothing is left that interests them.
That list is not exhaustive. People are creative. A host of other mechanisms have been written into wills. What about John? He is still alive, but he had the lawyer draft and include the "Monopoly clause" in his will.
John E. S. Poyser is a Winnipeg lawyer with the Wealth and Estate Law Group. Contact him at 204-947-6801 or firstname.lastname@example.org