Legal Assistance with Will & Fund Questions

Questioner

My father disinherited my eldest brother in his will. My sister and I were given the task of setting up a fund to the amount of our inheritance. For emergencies. There are none. He was a drug user and kicked the habit. My sister died after my father. I opened a securities account. My sister's heir signed the application together with me and we authorised each other (general terms and conditions) to be able to use the account. Two signatures are not required for these transactions. So I can empty the account without his signature and give the money to my brother. And I want to. That is against the will of the will and my brother-in-law would not want this either. Can my brother-in-law appeal to the lack of his will when signing the bank account? That he, as my sister's heir, did not want the money to go to my eldest brother. Can he go to court? Does that make sense? I am the administrator of my eldest brother's inheritance and also the sole manager of the fund. The general terms and conditions of the account make it difficult but not impossible. Who or what can legally stop me? Morally is a different discussion, but I will not start that here.

Lawyer

You write that you and your deceased sister have been given a testamentary obligation to set up a fund (foundation?), into which (as I understand it) your brother's inheritance had to be deposited to support him(?) in emergencies. You write that your brother has kicked the habit and that there are no emergencies. However, this does not mean that emergencies cannot occur. I am of the opinion that you and your brother-in-law (apparently the sole heir of your deceased sister) will have to maintain the fund as long as your brother is alive and that you will be acting contrary to the will and the objective of the fund if you now unilaterally empty the securities account and 'give' the money to your brother. Your brother-in-law can call you and your brother to account for this and, if necessary, demand through the court that the money flows back into the fund. He could also report to the Public Prosecution Service that you are apparently making funds that you have in your possession as manager of the fund available to your brother in violation of the objective of the fund (without there being an emergency). brother. If you believe that the fund cannot achieve its objective, you can, as a director of this fund, dissolve the fund, but you will have to act in accordance with the articles of association of the fund (where should the money from the fund go). See also: https://www.notaris.nl/opheffing-van-de-stichting

Questioner

Thank you. It is not a foundation. It concerns a share package of which my brother has the usufruct, the dividend goes to him. The elaboration of the fund is elaborated in the will. He is the usufructuary. On what basis can my brother-in-law go to the Public Prosecution Service? What is the sanction for not executing a will? The money in the fund is still mine and my brother-in-law's (he is indeed my sister's sole heir). My brother was disinherited but did request and receive his legitimate portion. The will offered that possibility, a sloppiness of the notary who advised my mother. If you don't trust someone, a condition could have been set for that possibility. My question is not fully answered. Can my brother-in-law revoke the power of attorney that he gave me (and I him) when setting up the and/or account and which allows me to dispose of the account (general terms and conditions) as it were, in court because he did not intend this? Namely the failure to execute the will. My brother has his life in order, has bought a house from my father's inheritance (who has not set up a fund) and is only deeply saddened by my mother's will.

Lawyer

I now read that there is also a testamentary arrangement made by your mother; I do not read anything about this in your first question. I understand from your response that there is a usufruct arrangement in a share package for the benefit of your brother. This will mean that you and your brother-in-law are joint owners of the share package and that in principle you may not dispose of it alone in legal terms (and therefore may not give all the shares / the entire sales proceeds of the shares to your brother). You write that there is a power of attorney on both sides, in order to be able to 'dispose' of the account. Disposing in legal terms usually means in this type of relationship that you may, for example, sell shares without requiring the prior consent of the other owner and may / must buy something else from the proceeds, but all within the limits of the other's law; or if you sell the shares, the (ownership of) the proceeds will accrue to you and your brother-in-law jointly and the usufruct thereof to your brother. Assuming that the proceeds (money) are easy to divide, you can actually give your half of the money to your brother, which is then actually a gift from you to your brother for that amount minus the value of the usufruct (which already belonged to your brother). The legal ownership of the other half of the proceeds is and remains with your brother-in-law. If you were to give this half away to your brother, your brother-in-law can demand its return from you in court. Finally, a power of attorney can be revoked by the principal himself (no need to involve a court), unless it has been expressly stated that the power of attorney is irrevocable.