I know how much dopers love a will question, so here is one.
For a bit of preamble, this is an actual will, prepared by a lawyer and notarized and all of that jazz; however, the principals have now aged out so it’s basically a hypothetical at this point.
So - couple - Harold and Susan. Susan is Harold’s second wife. His previous wife died leaving him with 4 children (2 boys, 2 girls). Harold and Susan have 2 children of their own (2 boys).
The will was written in 1977, in New Brunswick Canada. It starts off with the usual preamble, and then we get to the point that has sparked my question.
So, Harold died, Susan never remarried and is now an aged lady with dementia moving in with Chuck and Chuck’s wife.
BUT - my question is, if Susan would have remarried back in 1988 or something (when she still would have been in her 30s), would point #3 have been enforceable? I’ve always been led to believe that people can’t reach from beyond the grave to prevent other people from entering into perfectly legal contracts; however, this thing was prepared by a lawyer, so I’m curious.
Perhaps the age of the document is a factor? Like, maybe things unenforceable now were enforceable then?
In will questions, the jurisdiction always matters. In general in the U.S. and common law jurisdictions, a condition subsequent in a will that an heir must marry, or not marry, or marry someone in particular, or not marry someone in particular, are all unenforceable. The gift would be treated as a completed gift. The wife would inherit the property and be able to marry whoever she wanted.
What perfectly legal contract would he be preventing? Susan’s free to marry whoever she wants. He could also say that Chuck can’t inherit a dime unless he graduates from Georgetown. Chuck is free to get whatever education he wants - he just doesn’t get anything if he decides to go to Villanova.
Right. It’s perfectly fine to say “Chuck gets $X when he graduates from Georgetown. If he hasn’t done that in 10 years, it goes to the home for wayward cats.”
But you can’t say “Chuck gets $X. However, if ever in the future he gets a degree from Georgetown, take all the money back and give it to the wayward cats.”
You can dangle the money in front of someone and put conditions on it, but once they get it, they get it.
Right. So Susan gets the house and then marries 10 years later. The will suggests the house gets taken from her and given to Chuck. That seems unenforceable to me.
As others have said, once something is given, you can’t take it back. Instead, what you want to do is give them the right to use the property without giving them ownership. The way to do this properly is with a “life estate”. A life estate would allow a person to live in, and enjoy the use of, the property so long as they live, or so long as they wish. She would not have the right to sell the property, which would deprive Chuck of his eventual right to the property.
Something like, “My wife Susan shall have a life estate in my home and its contents. If she does not wish to live in the house, if she ceases to live in the house, or if she remarries, the house shall revert to my son Chuck in fee simple.”
Chuck is Harold’s youngest son - one of the ones he had with Susan. Which doesn’t make that line in the will enforceable if it’s a direct quote - but it could possibly have been meant as instructions to Susan that Harold wanted the house to go to their son if she remarried rather than Susan selling it and buying a new house with the new husband or Susan leaving it to her new husband when she dies. My mother really wanted to put something in her will that was absolutely unenforceable* - but the person it affected would have done it whether it was enforceable or not.
She wanted to leave her house to my one sister and require her to pay the other three of us some amount of money. My sister absolutely would have paid us, but we talked my mother out of it for other reasons.
That’s what I was thinking - it would have to be a life estate of some sort.
Or alternately, set up a trust, leaving everything to the trust, and have the terms of the trust set up to handle things that way.
But yeah, the whole situation of “Susan owns it, then we’ll take it away” is absurd. What if she needed to sell it to downsize, and wanted to use the proceeds to buy a condo or something?