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Doberman Pinscher
12-10-2006, 03:57 AM
I am in NC if it matters. Here is the scenario: 23 years ago my grandfather made a will saying that I and my 2 cousins get equal size pieces of his land when he dies. Once of my cousins puts a trailer on her future piece and moves in (I was only 4 at the time)

Flash to 2006. My grandfather dies, I get the land, and it turns out that because of zoning restrictions I and my other cousins's piece are just slightly too small to put a house or trailer on. I can't really do anything with it. Now my aunt who is a realy bitch inherited the much larger piece of land.

Can I contest this will based on the fact that my grandfather intended his grandkids to live on the land he willed them, and demand the executor(my aunt) give us enough additional land to be able to put housing on it?

Otto
12-10-2006, 08:10 AM
You're not going to get a lawyer to answer here and any advice from a non-lawyer is useless. Consult with an attorney licensed in your state with experience in probate law.

Polycarp
12-10-2006, 09:06 AM
Like Otto said, you won't get useful, valid legal advice here; best consult a lawyer (I can quickly get you the NC Bar Association's address if you want it).

You can always contest a will (barring frivolous-suit exclusions); the question is, can you win? And in the case you've outlined, I think it's a big enough crapshoot -- he specified the acreage but had an intent (which you didn't indicate he put in writing) that conflicted with that. In my mind, you would be wise to explore other alternatives.

And one that comes to mind is to ask for an area variance from the zoning board. Your case is that while the lot in question did not come into legal existence in the eyes of the world at large until the probate of your grandfather's estate, it was legally created by his setting it apart in his will 23 years before, that it was his intent to leave you land on which you could build and live, that the requested variance is a minimal change (you said, "just slightly too small," in your OP), and that it matches in size your cousin's parcel which she's occupied as a residence for 17 years. A minimal fee for processing your variance request, putting together whatever evidence will prove your claims, and you should have the legal right to build a residence on the property. (Note: if your zoning provisions are fairly strict, save yourself future trouble and mark on the map tentative locations of any future "real improvements" such as a toolshed, a garage, a swimming pool, that you may want to put in at some later date. Having done so is likely to simplify the permit process when you go to actually put them in.)

Another alternative: go to Aunt Endora, descriptor-for-female-dog though she may be, with the idea that (a) you and your cousin are prepared to pay a small percentage of the land's fair market value for enough land to give you property to build on, and (b) you've been advised that you may have a chance of successfully challenging the estate on the basis of your grandfather's intent in leaving you the land, so would she be willing to sell you and your cousin enough adjacent land to bring your parcels into conformity with the zoning ordinance, at a low "for family" price? This gives her the chance to save face, avoid a possible lawsuit, and make a few bucks on the deal; it's quite possible she'd jump at it. (You know better than we do the specific variety of bitch, and whether she'd go for that deal.)

Probably other alternatives than those two and contesting the will. It costs nothing to be creative in your thinking; it does cost to get into legal hassles, especially with family. "Measure twice, cut once."

Campion
12-10-2006, 10:29 AM
A will is like a contract; it must have certain terms for it to be valid, and if it's valid, those terms govern. Like Otto said, lawyers here won't give you advice, because without reading the whole will, and understanding how its various provisions work together, we can't know how to begin answering your question. For example, while it's an absolutely true statement that you can always challenge a will, some wills have what are called in terrorem (http://www.wardandsmith.com/Pages/article.php?article=Will_Disputes) clauses, which could preclude you from taking anything under the will if you challenge it. But we don't know that, nor do we know how the will is phrased. So any advice you get over the internet is necessarily based on limited information, and shouldn't be relied upon.

Here's a link to the North Carolina Bar Association's Lawyer Referral Service (http://www.ncbar.org/public/lrs/index.aspx). If you call them, they can refer you to a lawyer in your area who specializes in estate law, and who will talk to you about your problem. $30 for 30 minutes. Good luck.

Sonia Montdore
12-10-2006, 10:31 AM
I have nothing substantive to add - I'm only popping in to express my admiration for Polycarp's excellent advice and common sense in the post above.

ouryL
12-11-2006, 03:37 PM
Keep in mind, you cousin moved onto this land many years prior to his death. It could be construed that this land was gifted to her prior to his death. While you contend that your grandfather wanted to gift you and your cousin that land so that you could live on it, he too did not object to your other cousin claiming more that than she was owed.

Jodi
12-11-2006, 04:13 PM
Some things aren't making sense to me, but let me be up front in telling you I'm not going to give you any legal advice; I'm just trying to understand the situation.

23 years ago my grandfather made a will saying that I and my 2 cousins get equal size pieces of his land when he dies. Flash to 2006. My grandfather dies, I get the land, and it turns out that because of zoning restrictions I and my other cousins's piece are just slightly too small to put a house or trailer on.

So are the pieces of property the same size, or is one piece actually physically larger? Are you saying that your cousin's piece just isn't subject to the same zoning restrictions? Maybe the zoning restrictions were put in place after she put her trailer out there 23 years ago?

I can't really do anything with it. Now my aunt who is a really bitch inherited the much larger piece of land.

Do you mean your aunt, as the mother of the cousin who moved on the property when you were young, inherited that piece of property when the cousin died? Or do you mean that your aunt, just as an heir to your grandfather, inherited some other property altogether?

Your case is that while the lot in question did not come into legal existence in the eyes of the world at large until the probate of your grandfather's estate, it was legally created by his setting it apart in his will 23 years before . . . .

A will alone cannot legally create a lot. "Legally created" and "came into legal existence" mean the same thing at law. Assuming the land was contiguous and not owned under separate title, it was just one single big piece of land, owned by Grandpa. His intent that the land should be partitioned in the future upon his death, did not "create" separate lots for any purpose. A future expectation left to you by a will is not a present property interest, and doesn't impact the property at all. Grandpa could have sold the property entirely, regardless of what his own will said, because he was the sole owner with all rights to the land.

Polycarp
12-11-2006, 05:16 PM
So are the pieces of property the same size, or is one piece actually physically larger? Are you saying that your cousin's piece just isn't subject to the same zoning restrictions? Maybe the zoning restrictions were put in place after she put her trailer out there 23 years ago?

Do you mean your aunt, as the mother of the cousin who moved on the property when you were young, inherited that piece of property when the cousin died? Or do you mean that your aunt, just as an heir to your grandfather, inherited some other property altogether?

A will alone cannot legally create a lot. "Legally created" and "came into legal existence" mean the same thing at law. Assuming the land was contiguous and not owned under separate title, it was just one single big piece of land, owned by Grandpa. His intent that the land should be partitioned in the future upon his death, did not "create" separate lots for any purpose. A future expectation left to you by a will is not a present property interest, and doesn't impact the property at all. Grandpa could have sold the property entirely, regardless of what his own will said, because he was the sole owner with all rights to the land.

Based on what he said in the OP, and I look to him to correct my understanding:

1. The OP and his two cousins are to get specific parcels of land, of equal size, with the intent they can build homes thereon, through the will.

2. The cousin living on the land moved her trailer onto the property with grandpa's consent, occupying the parcel she would eventually inherit as a part of his larger undivided contiguous land holding. Her lot was not yet created; she was legally a tenant of his land.

3. The aunt is executrix of the will and the major heiress, getting the remainder of the land that was not left to the OP and his two cousins.

4. Whatever arrangement may have been in place at the time the cousin placed her trailer, the zoning law now requires a larger lot size. But she is, quite literally, "grandfathered in," as an existing use.

Zoning laws occupy an unusual area of the law, in that they regulate whether people may use their own property for otherwise legal uses. They are therefore "porous" in their application, giving a great deal of deference to property rights within the overall land use plan.

Say we all live in Cecilburg, and the laws here call for a 0.25 acre lot for residences, and a 1.0 acre plot for retail establishments (to allow room for deliveries, parking, etc. over and above the store). Fred owns a 0.23 acre lot on which his home has sat for 100 years. He's legal; his lot was created before the zoning law was adopted, and it constitutes a legal non-conforming lot that was "grandfathered" in. Sam owns a 0.23 acre lot next door to Kwicky Mart, put together from the 0.09 acres of land he inherited and the 0.14 acres of land he bought from the Flynn estate's 1.14 acre parcel when they sold the remaining acre to Convenient Foods Ventures, Inc., the company that owns Kwicky Mart. He went to the zoning board to show that he had obtained the maximum amount of land he could get his hands on (selling any more would have reduced the Flynn parcel below what CFV could legally build the Kwicky Mart on), and got an area variance to permit him to make use of his land for a residence. Now Tom owns a 5-acre parcel he wants to develop and an adjacent 0.23 acre parcel he wants to build his retirement home on with the proceeds. But he's probably SOL -- though he can make a case that the lot he plans to keep is the same size as Fred's and Sam's, and they've been permitted to build, he could easily transfer 0.02 acres from his 5 acre lot to achieve legal minimum lot size, and too bad if that move will impact what he could have made by developing it. He'll probably be denied a variance, and told to have the land resurveyed and redeeded as 4.98 and 0.25 acre parcels.

My thinking was, as named heir of a specific acreage in a will, while title to the land vested in grandpa, the OP had what the Brits call an "estate in potential" -- a reasonable expectation of becoming owner in the course of events. And, short of asking grandpa to amend his will, there was no way in which he could remedy the defect that brought the size of the parcel he would inherit below legal minimum. Therefore, in requesting the variance, he can demonstrate that he had expectation of owning that land as a house site prior to the imposition of the minimum lot size, and no means of correcting the defect (presuming that there was a good reason not to ask grandpa to increase the parcel sizes). And if Aunt Bitch owns the surrounding land and will not sell to him, or only at a hold-hostage price, he has no reasonable way of correcting the defect and making use of his land. The only legal use he can make of it is to leave it vacant and hunt or garden on it, or sell it to Aunt Bitch at her price. This works a hardship on him that is what the variance provisions in zoning laws are intended to correct.

Of course he did not have title to the land until it was passed to him by the will -- but he did have an interest of sorts in it as the knowing eventual heir to it, albeit not one recognized in law. But variance decisions are all about making equitable solutions when strict application of the law works a hardship on the legal owner of a parcel of land. And I intended the arguments I wrote to together constitute justification for petitioning for an area variance, not to advance some bizarre legal theory.

Walloon
12-11-2006, 05:34 PM
All sorts of questions unanswered in the OP. Did the grandfather's will specify the size of each parcel of land? Or just that his land be divided equally? How much of the land did your cousin with the trailer claim or develop or otherwise possess? Was it more than the amount specified in the will, or if not in the will, was it more than one third of your grandfather's total property? The question is important, because your cousin may have gained title to any "extra" land through what is called "adverse possession".

These are all reasons why you should hire a lawyer competent in property law.

Polycarp
12-11-2006, 06:27 PM
By the way, to Jodi and any other "pros" (lawyers, planners, etc.), my post #8, though addressed to Jodi went into far more detail about the legal philosophy regarding zoning and variances than I would have addressing Jodi singly, as I kept in mind that the post would be read by people who might not know the information given. It was not, though at first glance it might look like, a snarky explanation of basic concepts to a lawyer who presumably already knows them, but me keeping in mind as I answered her that several hundred others who may not know zoning and variances may be reading it.

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