By Catrina C. Waltz, James L. Windsor, Real Estate Claims & Title Insurance Solutions

On Tuesday, in Brown v. Johnson, Record No. 0491-23-4 (Ct. App. Va. April 16, 2024), available here, the Court of Appeals of Virginia affirmed a decision from the Circuit Court of Fairfax County, holding that a will created a determinable life estate with a contingent fee simple subject to a condition precedent. It also held where a will’s provision that the life estate terminated upon the life tenant’s failure to use the estate house as their personal residence, the life tenant’s estate did not terminate because the life tenant maintained more than one residence.

Mary Putnam executed a will in 1998, which, in Article III, provided:

1. If my sister and her husband, [Anna and Clarence Johnson], and their daughter, [Sharon Johnson], survive me, I devise my house . . . to them until (i) the time of their death, or (ii) the expiration of a [90]-day period during which they have failed to use the premises as their personal residence, whichever shall first occur.
2. During the course of this determinable life estate, [Anna, Sharon, and Clarence Johnson] shall be responsible for the payment of all charges incident to maintaining the property including, but not limited to (i) regular recurring taxes, (ii) ordinary repairs, and (iii) insurance premiums on a homeowner’s insurance policy for the benefit of the remaindermen, as well as themselves, as their interests may appear.
3. In the event that [Anna, Clarence, and Sharon Johnson] shall not survive me for a period of at least [30] days, then and in that event I give, devise and bequeath absolutely and in fee simple to my nieces, [LaVonnia Brown and Sylvia Stoval], the house . . . in equal shares, to share and share alike.
4. It is my desire that the house . . . be kept in the family if possible and passed on to future generations to live in and enjoy…

   [T]he singular shall include the plural and vice versa.

Clarence, Anna’s husband, predeceased Mary. Mary died in 2010, survived by her sister Anna, Anna’s daughter Sharon, and nieces LaVonnia, and Sylvia. Anna’s two other children, Magaera and Reginald, also survived Mary. At the time of Mary’s death, Anna, Magaera, and Reginald were living in the estate house. Anna and Reginald subsequently died in 2018 and 2020, respectively, and Magaera continued living in the estate house. Sharon leased an apartment in February 2020 and continued making payments on the apartment through December 2021, at which time she moved into the estate house full-time.  In the interim, after her brother Reginald died in 2020, Sharon went to the estate house on the weekends or two to three times a week to cook food for her sister, Magaera, and stayed in the same room in the estate house during each overnight visit.

In November 2021, LaVonnia and Sylvia filed a complaint seeking a judicial declaration that Sharon’s life estate had terminated because she failed to use the estate house as her personal residence, as required under the will. They also sought a determination that they had a remainder interest in the house. At trial, the court held Sharon had used the house as her personal residence, such that her life estate had not been terminated. Further, the court held because Clarence, Anna, and Sharon did not all die within 30 days of Mary’s death, LaVonnia and Sylvia did not take under Article III(c) of the will. The Court of Appeals affirmed the decision.

First, LaVonnia and Sylvia argued that Article III(a) created a life estate for Sharon only if all the named individuals survived Mary. Because Clarence predeceased Mary,  they argued no life estate came into being. The Court looked to the will’s language, providing the singular shall include the plural, to conclude that the term “and” between the individuals named does not require the Court to hold that all the individuals must have survived Mary to create a life estate. Thus, it held Article III(a) created a determinable life estate in each of the three individuals that survived Mary, which was subject to termination either at the individual’s death or upon the failure of the life tenant to use the house as a personal residence for 90 days.

LaVonnia and Sylvia also argued that the trial court erred by ruling they were not the remainder beneficiaries of the Article III(a) life estate. The Court explained that where a life estate does not provide for remaindermen, there is a reversion in favor of the estate of the grantor. Plainly, the will does not identify any remaindermen. Thus, there is a reversion in Mary’s estate that vested upon Mary’s death and will become possessory upon the termination of the life estate. Article III(c)’s requirement that the life tenants maintain insurance “for the benefit of the remaindermen” similarly does not create a remainder. Rather, (c) creates a contingent fee simple subject to the condition precedent that Anna, Clarence, and Sharon not survive Mary by at least 30 days. Because both Anna and Sharon did survive Mary by more than 30 days, LaVonnia and Sylvia have no property interest arising from Article III(c).

Lastly, LaVonnia and Sylvia argued the trial court erred by holding Sharon used the house as her personal residence. At trial, Sharon testified that she kept a room at the house and slept there two or three nights a week following Reginald’s death. She was living in the same room during the trial. Sharon allowed Magaera to live in the house, but she never rented the house “to strangers.” Sharon regularly made repairs on the house. The Court explained that “personal residence” is distinct from a house used for commercial or business purposes but is not synonymous with “domicile.” As such, based on its plain definitions, it refers to “a dwelling place or home used by an individual in her personal capacity or not used commercially.” It held a person may have multiple residences, and a personal residence need not be a primary or principal home. Additionally, Mary could have expressly provided in the will that the estate terminated upon the life tenant maintaining more than one residence, but she chose not to. As such, there was sufficient evidence for the trial court to find that Sharon used the estate house as her personal residence.

This opinion provides insight into how a court interprets the provisions of a will, including the creation and termination of a determinable life estate. If you have any questions regarding this opinion on estates, or title and real property questions in general, please contact Jim Windsor at (757) 873.6308 or jlwindsor@kaufcan.com, or Catrina Waltz at (804) 771.5744 or ccwaltz​@​kaufcan.com.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2024.