Can You Inforce the Intent of A Will?

My father-in-law left a sum of money to his youngest daughter to be used specifically for education. He also left a substantially number of savings bonds to be divided amongst his estate.

In the divorce decree, the savings bonds are supposed to be used for the benefit of the youngest daughter's education. In the will, my father-in-law willed the bonds to all of his children and set up a separate account for the youngest daughter's education. This new account is substantially larger than the value of the savings bonds.

Now, the ex-wife is demanding that both the savings bonds and the new account fall to the youngest child for education expenses. My father in-law's intent was for the new account to be sufficient for all education costs and replace the savings bonds (as suggested by him willing the bonds to all of his heirs).

Does the word of the will, or the divorce decree take precedence? Is the intent of his will enforceable?

I believe the will takes precedence, but only in the event of his death.(You didn't specify.) The will is recognized as his final legal action and unless contested (or badly mismanaged,) should be administered by a competent & impartial executor so that his original intentions/wishes are fulfilled. (In a perfect world, anyway.) If he's still alive, the recorded settlement prevails (in my opinion.) Regardless, I believe his ex would have to either petition for a change in the last recorded divorce settlement agreement or formally contest his will (in court) before any legal deviations from either agreement can occur. (Assuming, of course, the parties involved in either legal documents come to their own mutual agreements. Then there's no real need for legal action, except to formalize the new agreement.)

Again, all of this is just an opinion. Sorry if the response doesn't quite answer your question (very long day here) .. obviously best bet is to consult with a good estate/probate attorney in your area. You'll be better prepared both the present and any future issues that may arise. (Very interesting question should he still be alive, by the way.)

Good luck.

Perhaps the OPERATIVE word is "LEFT". He "LEFT". There would be no need to assume, ponder, or debate the "intent" of his will if he were still alive. They could simply ASK.

In any regard, an interesting "real life" example of this is the estate of the late Heath Ledger---who has a child that was not mentioned in his will since it was written before she was even born. I cannot predict what the outcome of any possible action might be on behalf of his child's attorney, but I suspect it would be possible to recognize his close relationship with his only child, and given his vast fortune, give her a portion, since she is his only recognized heir.

Note--this post is based on nothing more appreciable than my opinon and common sense. I have no legal basis for my comments, since although I have handled my late husband's estate and all that entails, I have not had any formal legal training in estate services.

I'll throw my own opinion into the ring as well.

The ex-wife/mother has a good argument that the youngest daughter should get both the bonds and the money in the new account.

The judge ordered that the bonds be used for the daughter's education. That was not a suggestion. So those bonds may be plucked right out of the estate, and the provision in the will for their distribution would be moot.

Now we have the remaining estate, which is partially made up of this new account. The will presumably clearly states that it goes to the daughter for her education. The will is also not a suggestion.

That said, the estate could petition the judge of the divorce to change his order based upon the will. Or, perhaps the will is written such that the new account will be placed in a trust that can only be used for educational purposes. If the funds are not needed for the daughter's education because of the bonds, perhaps they will revert back to the estate for distribution among the heirs.

There are probably other possibilities as well, depending on what a judge thinks is equitable under the circumstances. But I'm fairly certain that a person can't unilaterally change a court order in his will, so I don't think a possible outcome will be that the order is void because the will says so.