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Court Dicusses Rule of Perpetuities


Issues of estate probate can be difficult to figure out. The wishes that a decedent places into their will should be considered as indelible in most cases. However, sometimes a will contains requirements that are not only difficult, but unreasonable for the decedent to place on their progeny. In one case that was heard in New York, Kings County Probate on December 23, 2008, conditions of this type were discussed.

In the incident case, the decedent left several pieces of property to different relatives. However, she placed numerous prerequisites on the acceptance of the property. She required that her family home be left to her niece and must not be sold. She stated that in that residence, the family was required to provide a room for an indigent friend of hers for free for the remainder of his life. She also left a property that was her family business to three members of her family. Two of these family members were people who lived in other countries.

A New York Probate Lawyer said the decedent’s niece filed a motion in probate that the requirements of the will were in violation of the rule against perpetuities. The rule against perpetuities was established to support the public policy of free transfer of property without restrictions on the living by the dead. It prevents an owner of property from putting limits on the power of future owners of the property. The rule against the restraint on alienation of property prevents an owner from creating requirements in their wills that block the recipient from selling or giving away the property as they see fit. In order to determine if the requirement of the will is reasonable, it must have limitations set forth in the document in reference to its duration, price and purpose.

The Supreme Court determined that the restraints that were spelled out by the decedent in her will posed restraints on the real property that were unreasonable. The court determined that the restraints spelled out in this will were unreasonable and violate the common law rule against unreasonable restraint on alienation that make it invalid. Any references that stated that the home or property could not be sold, must be removed from the document in order for the document to be legally binding. The court stated that the executor of the decedent’s will shall have a deed drawn up that transfers the property of the family home to the recipient spelled out in the document. Nassau County Probate Lawyers said that recipient may sell or maintain that property as they are able to and as they see fit.

The Supreme Court determined that the executor shall also create a deed transferring the real property that was the family business into the names of the persons listed as the recipients pursuant to the language of the will itself. The court noted that the decedent’s friend who was listed as having a free room for life had died prior to the decedent’s death. The decedent had also outlived the two recipients of property from her will that lived in other countries. Therefore, the entire issue of deeds may be moot. The sole surviving relative that was named in the will was the executor.

Situations that involve the desires of a loved one can become distressing to surviving family members as they attempt to sort through the reality of their owns lives with the wishes of the loved one who has passed before them. Long Island Probate Lawyers say that often, the desires of the decedent are incompatible with the lives and abilities of the people with whom they have left their belongings. It is difficult for a surviving loved one to have to face a reality that they cannot live up to the requests that have been made upon them.

At Stephen Bilkis & Associates a probate lawyer, is available in convenient offices located throughout New York and the Metropolitan area to respond to your call. The estate Attorneys at Stephen Bilkis & Associates can provide you with good advice when you are drawing up your own will.

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