Can predeceased fathers will rule over mother's will?

[FranGran]

I and the deceased reside in VA.
Father died in the 60's and had a handwritten will advising that mother is to receive all of the estate. Furthermore, upon her death, the written will states that everything she has should be split between their two children. Is this something that can be done in a will? Can the person who dies first tell their beneficiary who they can and cannot give the estate to upon their death?

 

[BelizeBreeze]

I and the deceased reside in VA.
Father died in the 60's and had a handwritten will advising that mother is to receive all of the estate. Furthermore, upon her death, the written will states that everything she has should be split between their two children. Is this something that can be done in a will? Can the person who dies first tell their beneficiary who they can and cannot give the estate to upon their death?

The FIRST question to answer is the validity of the father's will. Since we don't have a copy of that will there is nothing we can tell you about the legality of succeeding interests.

 

[seniorjudge]

The FIRST question to answer is the validity of the father's will. Since we don't have a copy of that will there is nothing we can tell you about the legality of succeeding interests.

Fran, keep all your questions in one thread:

https://forum.freeadvice.com/showthread.php?t=235884

You're confusing things.

Anyway, where (if anywhere) was Pa's will probated?

 

[FranGran]

Reply

Pa's will was probabted in VA. The same city Mother died in.

 

[seniorjudge]

Fran, keep all your questions in one thread:

https://forum.freeadvice.com/showthread.php?t=235884

You're confusing things.

Anyway, where (if anywhere) was Pa's will probated?

As I said, please keep all your questions in this thread:

All of the deceased assets were in the company name. Executor advised that since this is the case, it does not have to be probated. Is this true?

This sentence is contradictory. If the deceased had assets, they need to be probated. If the deceased had no assets, they do not need to be probated. If the "deceased assets were in the company name" then this means (I assume) that the deceased had no assets.

 

[nextwife]

All of the deceased assets were in the company name. Executor advised that since this is the case, it does not have to be probated. Is this true?

So the company has assets. And who owned the company?

 

[Dandy Don]

The language in father's will is incorrect and illegal and does not apply to his wife's estate--he has no right to stipulate what will happen after his wife's death, since his wife's estate is a separate matter and it is her will that determines what happens with HER money. Please satisfy our curiosity--did mom leave a will?

DANDY DON IN OKLAHOMA ([email protected])

 

[BelizeBreeze]

The language in father's will is incorrect and illegal and does not apply to his wife's estate--he has no right to stipulate what will happen after his wife's death, since his wife's estate is a separate matter and it is her will that determines what happens with HER money. Please satisfy our curiosity--did mom leave a will?

DANDY DON IN OKLAHOMA ([email protected])

UNLESS of course, the father's will created a trust. but then, how would I know since I've not read a copy of the will.

 

[seniorjudge]

Q: Is this something that can be done in a will?

A: Yes, this is done frequently.


Q: Can the person who dies first tell their beneficiary who they can and cannot give the estate to upon their death?

A: Yes.


These are exceptionally general answers. The language in your father's will is correct and legal and may apply to his wife's estate--he has the right to stipulate what will happen after his wife's death.

This is called a restraint on alienation (legal gobbledygook for you can't sell it until you fulfill these conditions).

Restraints on alienation are strictly construed, so without knowing the exact language and other facts, no one can really give you a final answer.


I could not find a VA case on point, but here is an interesting article from VA:

http://64.233.167.104/search?q=cache:1_Cf0WKPBeAJ:www.cdfe.org/Conservation%20Easements.pdf+virginia+"restraint+on+alienation"&hl=en&lr=lang_en&client=firefox-a


Also, here is a NC case which (I believe) is the majority rule (including VA).

While an agreement not to revoke or alter a will is valid and enforceable, it places a restriction on alienation in that a testator is thereafter limited in the disposition of his or her property. Because of this restraint on alienation, an agreement not to revoke or alter a will should be strictly construed. See Webster, Jr., James A., Webster's Real Estate Law in North Carolina 5th Ed., § 12-14, 498 (1999). See also 17A Am. Jur. 2d 345; Lord, Richard A., Williston on Contracts 4th Ed., § 30:9, 104 (1999)(Agreements which place a restraint on legal rights should be strictly construed).

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals2001/&invol=001358-1

 

[FranGran]

Yes, mother left a will

Dandy Don, Mother did leave a will.
The copy of the will jumps from article 5 to article 7. There is no article 6. Could this be a typo?...If so, is the document still legal?

In addition, 3 of the 4 names are wrong. Two are wrong due to marriage(married before date of the will). One of the other inheritors name is incorrect (middle name is wrong, but similar to the correct name)

 

[seniorjudge]

Dandy Don, Mother did leave a will.
The copy of the will jumps from article 5 to article 7. There is no article 6. Could this be a typo?...If so, is the document still legal?

In addition, 3 of the 4 names are wrong. Two are wrong due to marriage(married before date of the will). One of the other inheritors name is incorrect (middle name is wrong, but similar to the correct name)

It doesn't sound like you have the whole will.

If the decedent left assets solely in the decedent's name, then there must be a probate of the assets.

 

[rmet4nzkx]

It doesn't sound like you have the whole will.

If the decedent left assets solely in the decedent's name, then there must be a probate of the assets.

Or perhaps mother was not competent at the time of the will if she used older names, perhaps there was undue influence?

 

[seniorjudge]

Or perhaps mother was not competent at the time of the will if she used older names, perhaps there was undue influence?

We're just guessing because writer has not supplied enough info.

 

[rmet4nzkx]

We're just guessing because writer has not supplied enough info.

Agreed or if they are mentioned in either will and what has changed.