Wills and Inheritance

Promise to make a gift at death enforceable if relied on by continued cohabitation

/ Estates and Future Interests, Marital Property, Trusts, Wills and Inheritance

The New Hampshire Supreme Court has held that a promise to give a gift at death if she continued to live with him until his death is enforceable even though it does not satisfy the state statute of wills if the promisor receives consideration for the promise, and continued cohabitation after the promise suffices. Tremblay v. Bald, 2024 WL 332101 (N.H. 2024). The contract was enforceable even though the decedent died intestate and could have, but did not, convert the written promise into a formal will.

Texas Supreme Court interprets life estate as a fee simple because the remainders were subject to divestment

/ Concurrent or Common Ownership, Estates and Future Interests, Real Estate Transactions, Wills and Inheritance

In Jordan v. Parker, 2022 WL 17998227 (Tex. Dec. 30, 2022), the Texas Supreme Court held that a conveyance of a life estate actually conveyed a fee simple since the remainders were subject to alteration or even complete divestment by the life estate owner. In this case, a man devised his entire estate to his widow for life with remainders in their children, but the devise gave the widow complete power to transfer both the life estate property and to redirect ownership of the remainders. Part of the estate was a fractional ownership interest in a ranch. Some years later, while the widow was still alive, a son who was a remainder owner conveyed his remainder interest to his daughters (the granddaughters of the widow and the testator). The widow never exercised her power to alter the remainders in her children during her lifetime, and the question was whether the widow …

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Statutory share statute gives surviving spouse a portion of the estate of the decedent

/ Marital Property, Wills and Inheritance

Applying the terms of a long-existing state statute, the Supreme Judicial Court of the Commonwealth of Massachusetts affirmed that a second spouse could take 1/3 of her deceased husband’s estate when he failed to rewrite his will after his second marriage and his will had left his entire estate to his first wife. Ciani v. MacGrath, 114 N.E.3d 52 (Mass. 2019); Mass. Gen. Laws ch. 191, §15. The court also read the state statute to give the surviving spouse a life estate in the family house rather than just a right to a share of its income.

Will devising home to testator’s four children and his widow that allowed her to “remain” in the home “for as long as she desires” gave her a tenancy in common interest with protection from removal by partition

/ Concurrent or Common Ownership, Restraints on Alienation, Wills and Inheritance

In an older case that came to my attention, the Massachusetts Supreme Judicial Court held that a will that gave a widow the right to “remain” in the home “for as long as she desires” did not create a life estate when her interest was shared with the decedent’s four children. Hershman-Tcherepnin v. Tcherepnin, 891 N.E.2d 194 (Mass. 2008). Rather, the court interpreted the conveyance to create tenancy in common interests shared equally by the five while giving the widow immunity from being forced from the house by partition. Significantly, the court did not consider that restraint on partition to constitute an unreasonable restraint on alienation. However, since she had brought an action to partition the property, she waived the right to be protected from ouster through partition sale.

Lease cannot transfer landlord’s right to receive rents to his daughter after his death because it is a testamentary transfer that does not comply with the formalities needed to create a will

/ Leaseholds, Wills and Inheritance

The MIssissippi Supreme Court held that a lease provision cannot transfer the landlord’s power to receive rents to his daughter after his death because that effectuates a testamentary transfer that must comply with the statute of wills to be valid, including all formalities such as two witnesses. Estate of Greer v. Ball, 218 So. 3d 1136 (Miss. 2017).

Fee simple absolute found despite language of “in trust” and “for the uses, purposes” of the YWCA

/ Estates and Future Interests, Real Estate Transactions, Statute of Frauds, Title Issues, Wills and Inheritance

In a standard application of traditional estates doctrine, the Massachusetts Appeals Court has found a fee simple absolute despite language in the grant to the YWCA stating that the property was given “in trust, nevertheless, for the uses, purposes and trusts aforesaid.” Young Women’s Christian Ass’n, Inc. of Boston, Inc. v. Young Women’s Christian Ass’n of Philadelphia, Inc., 90 Mass. App. Ct. 1119, 2016 WL 7162737 (Table) (Mass. 2016). Traditionally any language in a conveyance of a fee simple that explains the “purpose” of the transfer or the “use” to which it is to be put, is interpreted as precatory language that has no legal effect on the title that is conveyed. The interpretive principle of the “presumption against forfeitures” suggests that any retained future interest or right of control in the grantor must be created explicitly and unambiguously. Some courts interpret this language to create an implied trust, or a fee simple …

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Heirs under intestacy statute include adopted children

/ Marital Property, Wills and Inheritance

In a decision one might think was unnecessary today, the Maine Supreme Judicial Court ruled that the “children” who inherit under state intestacy statutes include adopted children. Fiduciary Trust Co. v. Wheeler, 132 A.3d 1178, 2016 ME 26 (Me. 2016). The issue was raised because an earlier court decision interpreting the decedent’s will had held that a separate clause leaving property to the decedent’s “issue” went to biological children (in this case grandchildren) only. This clause did not affect another clause, at issue here, that referred to the state’s intestacy statute to govern distribution of property upon termination of the trust.

New York law protects inheritance rights of children conceived after the death of their biological parents

/ Wills and Inheritance

New York state has adopted a statute that defines procedures for ensuring that children conceived after the death of their biological parents can inherit property, receive Social Security survivor benefits, and benefit from trusts established for them. The law applies to  ova or sperm that are stored for use after the death of a biological parent, usually when that parent knows his or her lifespan is limited. The law requires a written declaration of the purpose for which the biological material was stored, recording of the document in public records, and requires the genetic child to be in utero within 24 months or born within 33 months of the death of the genetic parent. read article

Will of real estate may be governed by the law of the situs of the property rather than the decedent’s domicile at death

/ Real Estate Transactions, Title Issues, Wills and Inheritance

The traditional rule is that title to real property is determined by the whole law of the situs of the property, meaning both the substantive law of the situs and its choice-of-law rules. Thus title is determined by whatever law would be applied at the situs. This rule has been rejected in some cases in recent years because personal property on death is determined by the law of the domicile of the decedent and if different rules are applied to real property located elsewhere and personal property, the decedent’s wishes may be ignored or perverted. However, many courts adhere to the traditional rules as occurred in In re Estate of Latek, 960 N.E.2d 193 (Ind. Ct. App. 2012), a court at the decedent’s domicile (Illinois) refused to accept a will for failure to comply with Illinois will execution requirements but the court in Indiana (where the property was located) refused …

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Ambiguous “survivor” reference creates a tenancy in common rather than a joint tenancy

/ Estates and Future Interests, Real Estate Transactions, Wills and Inheritance

A deed granting an interest to two siblings (Roger & Dana Waid) “or the survivor” was interpreted as created a tenancy in common rather than a joint tenancy. Young v. Waid, 2012 WL 2947590, (W.Va. 2012). Following the death of Roger, Dana would have had a 100 % interest in the property if they held as joint tenants (because of her right of survivorship) but only a 50 % interest (with 50% held by Roger’s heir or devisees) if they held as tenants in common. Applying an interpretive presumption in favor of tenancies in common, the West Virginia Supreme Court noted that the deed did not use the words “joint tenancy” or “right of survivorship” and that it was possible the words “to the survivor” were mere surplusage. The court found the language not clear enough to constitute an intent to create a right of survivorship, effectively privileging giving each sibling (and …

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