A will left a life estate ("during his natural life") in property to an incompetent son then left the property (after the life estate ends) to son #2. This is what courts refer to as "the remainder." Later in the will, the testator stated that if son #2 predeceases the testator or dies before the property vests, then the property should go to a daughter-in-law and her daughter. Son #2 outlived the testator but did not outlive the incompetent son who held the life estate. When the incompetent son died, a challenge to the will occurred between the heirs of son #2 and the daughter-in-law and her daughter. Son #2's heirs claimed that because he outlived the testator, the remainder of the property vested in him at that time and passed through his estate. The daughter-in-law and her daughter claimed that the property never vested in son #2 because the will required that son #2 not only outlive the testator but also outlive the incompetent brother.
The trial court ruled in favor of son #2 and the appeals court agreed. The basis of the ruling was that Texas favors vesting of property at the earliest possible moment and that the part of the will which occurred after the property was given to son #2 if he survived the testator did not divest son #2 of the property. "If the conditional element is incorporated into the description of, or into the gift to the remainder-man, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested." Once the property was vested in son #2 by him surviving the testator, it was his and passed under his estate. No. 04-12-00627-CV.
Copyright by Robert Ray a Texas inheritance attorney.
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