Legacy to Executors

Parker confirms that there is a presumption that any legacy to an executor is conditional on him or her accepting the office of executor. Can anyone point me to the authority underlying this statement?

I have an estate where one of three executors does not want to act but doesn’t want to forgo their legacy either. The wording of the gift does not make the testator’s intentions clear.

Many thanks.

Sarah Bushell
Jobling Gowler Law Ltd

Is the gift to the executor as executor, unspecified, or in some other capacity?

Theobald on Wills contains a useful discussion.

If they are described in the gift as executor, or described by name only, the legacy will fail if they do not act.

However, if another reason is given (e.g. to my brother X), or is a gift of residue, the presumption does not apply.

It appears that the mere taking of a grant, with no intention to act in the administration of the estate, does not entitle the executor to the legacy (Harford v. Browning (1787) 1 Cox 302).

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals