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Virginia Beach Estate Planning Lawyer / Blog / Estate Planning / Virginia Court Holds That Life Estate Maintained by Part-Time Use

Virginia Court Holds That Life Estate Maintained by Part-Time Use


In an unpublished opinion, the Court of Appeals of Virginia affirmed a lower court ruling that two women were not considered the remainder beneficiaries of a life estate created by their aunt. The appellate court, in making this ruling, found that a personal residence does not require sole or exclusive use. Intermittent use was good enough to prolong the life estate.

Background of the case 

In her will, the decedent gave a life estate to her sister and her husband as well as her daughter. The life estate required at least one of them to use the home as their personal residence and maintain it. The will also provided that if none of these individuals survived her by 30 days, the house would be devised in fee simple to her nieces. The will also expressed her wish for the home to stay in the family.

The husband of her sister died before the willmaker, so her sister lived in the house with her two other children. After the sister passed, the daughter spent at least two nights a week at the house while she leased an apartment before moving in full-time. Her nieces sought a declaration that the life estate had ended and that they held the remainder interest in the house.

The trial court ruled that the life estate had not ended because the daughter used the house as her personal residence. If the sister, her husband, and her daughter had all died within 30 days of the willmaker, the nieces would have a claim to the estate. However, that didn’t happen. The residuary clause in the will would control the disposition of the home once the life estate ended. The nieces appealed the trial court’s ruling.

The appellate court found that the will created a life estate for the daughter. Even though the will employed the word “and,” the will did not require all three of the named beneficiaries to survive to have a life estate. So long as at least one lived, the life estate remained in effect.

The court further ruled that no remainder interest belonged to either niece. Instead of creating a remainder for the nieces, the will established a contingent fee simple subject to the condition precedent the beneficiaries not survive the willmaker by at least 30 days. But the willmaker’s wish for her house to stay in the family was merely a request without binding effect.

The appellate court further found that the daughter used the house as her personal residence, fulfilling the requirements of the life estate. The appeals court ruled that the house did not have to be her primary residence to be her personal residence. A personal residence is not the same as a primary. So, she was also allowed to rent an apartment at the same time she intermittently lived in the willmaker’s home.

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The Law Office of Angela N. Manz helps individuals create comprehensive estate plans to ensure their wishes are followed after their deaths. Call our Virginia Beach estate planning lawyers today to schedule an appointment, and we can begin discussing your goals right away.

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