I am the executor of my mother’s will. When she was alive, she discussed the will extensively with me, my siblings and their grandchildren. Most of it was straightforward, but in one case she wanted to leave one particular property to one of the sons as a life estate. This was some rural acreage that the grandchildren had enjoyed all their lives, and she wanted to make sure her grandchildren continued to enjoy it. Once the son died (the father of the grandkids) the grandkids could do with it however they chose, and there was language in the will describing how the property could be sold if one of the “descendants ever chose to sell his or her undivided interest therein.”
That was the idea, anyway. As it turned out, that was not quite what the will said. Specifically, the language of the will said, “I give, devise, bequeath to my son, […], the tract described as […] for his lifetime with the remainder interest to his lineal descendants.” His lineal descendants. Not being lawyers, none of us realized that that meant not just their grandkids, but their great-grandkids, g-g-grandkids, and on and on.
The will was probated years ago, but this problem was only recently brought to our attention. I’ve discussed this casually with a couple of attorney friends (neither specializing in probate) and one was concerned that it might violate the Rule Against Perpetuities and thus invalidate the entire will. I think the 1981 film Body Heat had that built into its plot. (We are in Texas, not Florida if that matters.)
So what do you think? There’s no urgency to this, but this may cause problems at some point. With any luck I’ll be dead by then.
If somebody along the way sells this piece of property, which is designated in a will., wouildn’t it just become a cashed-in legacy? The same as if she sold the property before she died, the will-designated heir would simply get nothing, because the bequeathed property is not there to inherit.
A testator can bequeath you the property, but I don’t think they can tell you what you can do with it.
Things like this are a lawyer’s dream or nightmare depending on your point of view. Without seeing the entire document and without knowing your home state, this will either be held to be an attempt at a fee tail (https://en.wikipedia.org/wiki/Fee_tail) and be restructured according to your state law, or it will violate the Rule Against Perpetuities as you mentioned.
At common law a clause which violated the RAP was held invalid in its entirety, but today most (if not all) states have a statutory provision to reform such clauses to comply with the rule.
But, again, just looking at what you have posted, once one “descendant” tries to sell, does the will trigger a procedure to follow? You’ll have to spend some legal fees to get an opinion on this one, and if there is a cognizable legal argument to make that would benefit someone else, then his or her lawyer will make it.
Alternatively, is the lawyer who drafted the will still living? If he would testify that the testator wanted everything as you described and that he just used the term “lineal descendants” because he is a self-important fuckwit, but what he (and the testator) meant to do was a remainder interest in all living grandchildren, a judge may construe it that way.
He may especially construe it that way if there are no other living members who might fall into that class who could complain.
They can put some conditions on the bequest for some period of time but not forever. As much as my mother wanted to , she couldn’t write a will that would forever keep her descendants from ever selling her house . She could, however, have written a will leaving the house to one or more of her grandchildren subject to a life estate for my sister, which would have prevented those grandchildren from selling it during my sister’s life.
And it’s not uncommon to see a piece of property left to a nonprofit organization for a specific purpose, and when or if it ceases being used for that purpose, it reverts back to the original owner’s heirs.