Interesting Developments In Inheritance Laws

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Is A Contingent Will Valid? What If The Contingency Never Occurs?

elderly-s-Fotolia_198088_XSIs a Contingent Will Valid

A will may be drawn to take effect on the happening of a contingency or condition. If the contingency or condition never occurs, it is void. An important class of contingent wills consist of instruments made to take effect as testaments in the event of the death of the maker from a particular illness, (i.e. “if I don’t survive my heart operation”) or before the happening of a certain event, such as returning to his home from a trip (i.e. “if I don’t return alive from my trip to India.”) If the testator survives the heart operation or if he returns alive from his India trip, the will is void.

If the happening of the event is merely referred to as giving the reason or inducement for the making of the will, it will be held unconditional and a valid will no matter what happens; but, if it appears that the testator intended to dispose of his property in case of the happening of the named event, then it will be held to be conditional. So how do you determine if the testator intended a contingent or conditional will?

The courts use “rules of construction” in determining if a will is contingent or not. Those rules are: the fact that testator left a will implies that he did not intend to die intestate; a will is construed to be general, not contingent, unless the contrary clearly appears either expressly or by necessary implication; if the event in the will merely indicates the inducement to make the will and the testator’s intent to make a contingent will is not apparent, it is a general will; and, if the will is open to two constructions, that interpretation will be given it which will prevent intestacy.

So, in answer to the question at the beginning, Is a Contingent Will Valid? Contingent or conditional wills are valid. If the will is contingent and the event never occurs, then the will is void.

We don’t prepare wills but to avoid this problem and the other problems that occur when people try to make their own wills everyone should see another attorney who can help you create a will that disposes of your property when and how you want. 45/1096. The Vermont supreme court ruled on this issue in IN RE HOLBROOK, 2017 VT 15, No. 2016-293 (Vt Supreme Court March 3, 2017). They held conflicting evidence overcame the presumption against intestacy and reversed a summary judgment based on that ground.

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We handle litigation involving inheritance disputes. We don't prepare wills. We handle a select few cases on contingency. Don't use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.

Posted in Procedure, Property, WillsTagged