[WSBARP] What estate is this

[Eric Nelsen]

Unfortunate decision to use a pronoun "she" at the beginning. Leaves the whole thing ambiguous.

I think it is a traditional life estate to Mary, remainder interest to Windy. I would link the "she" to Mary, so that if Mary predeceases I think Windy inherits the property in fee simple. Unless there is additional language relating to this gift that might provide more context?

Traditional language for conveyance of life estate, per Vol. 3 of WSBA Real Property Deskbook, Ch. 1.3, is "O to A for life, then...." This gift closely tracks that traditional deed language. The Deskbook says of this estate:

This is the shortest freehold estate and, as its title indicates, it is a freehold estate for the grantee's (or someone else's) life only. The most common usage to create a life estate is "to A for her life." More often than not, a simple conveyance "to A for life" will create a life estate measured by A's life rather than that of the grantor.
The presumption of English law was that if words of inheritance were not used, the conveyance was of a life estate only. The need to use "and her heirs," or like language, was eliminated by statute. RCW 64.04.060<https://casemaker4.casemakerlegal.com/states/WA/books/Revised_Code/browse?ci=14&codesec=64.04.060&title=64&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203>. Continued use of that language may create problems. See §1.4(7)<https://casemaker4.casemakerlegal.com/document/libra/book/7006#%C2%A7%201.4(7)>.
A life estate terminates with the death of the life tenant (or the death of the measuring life). Parr v. Davison, 146 Wash. 354<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=146+Wash.+354&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203>, 262 P. 959<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=262+P.+959&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203> (1928). In relationships with neighboring landowners (e.g., nuisance, support), the life estate has the same characteristics as the fee simple absolute. The life tenant has the right to undisturbed possession. A life tenant who commits waste may be subject to a suit for damages or an injunction on behalf of the remainderman. By statute in Washington, the life tenant committing waste is liable for damages to "any person injured thereby"; in addition, the court may decree a forfeiture. RCW 64.12.020<https://casemaker4.casemakerlegal.com/states/WA/books/Revised_Code/browse?ci=14&codesec=64.12.020&title=64&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203>; see McDowell v. Beckham, 72 Wash. 224<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=72+Wash.+224&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203>, 130 P. 350<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=130+P.+350&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203> (1913). See also Volume 4, Chapter 5 (Waste)<https://casemaker4.casemakerlegal.com/document/libra/internallinks/7007/Washington%20Real%20Property%20Deskbook%20Series%20Volume%204%20Causes%20of%20Action,%20Taxation,%20Regulation/All%20Publications/11>, of this deskbook.
Both the life tenant and the remainderman may recover for damages inflicted by third persons against the land. The life tenant, like the fee owner, has the privilege of taking issues and profits of the land, but only, of course, during the period of his or her tenancy. A life estate is transferable inter vivos, but again the life tenant can transfer only what he or she has. A holder of a life estate pur autre vie (for the life of another) can transfer the estate at his or her death, but only for the duration of the measuring life.
The life tenant is bound to keep the premises in repair and to pay taxes but is under no obligation to make improvements. In re Brooks' Estate, 44 Wn.2d 96<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=44+Wn.2d+96&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203>, 265 P.2d 833<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=265+P.2d+833&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203> (1954); McDowell v. Beckham, 72 Wash. 224<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=72+Wash.+224&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203>. The life tenant who makes improvements acts voluntarily and has no claim against the reversioner or remainderman for reimbursement. In re Brooks' Estate, 44 Wn.2d 96<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=44+Wn.2d+96&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203>; Stahl v. Schwarz, 81 Wash. 293<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=81+Wash.+293&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203>, 142 P. 651<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=142+P.+651&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203> (1914).
Generally speaking, the life tenant is required to pay real estate taxes on the property during the life estate. The grantor may, however, require that payments be made by the holder of the future interest, but probably may not do so if the value of the future interest will not secure the payments. In re Estate of Campbell, 87 Wn. App. 506<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=87+Wn.App.+506&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203>, 942 P.2d 1008<https://casemaker4.casemakerlegal.com/states/WA/books/Case_Law/results?ci=14&search%5bCite%5d=942+P.2d+1008&fn=Washington%20Real%20Property%20Deskbook%20Fourth%20Edition%20Vol%203> (1997). A life estate is subject to claims of the life tenant's creditors, but that liability, again, ceases with the termination of the life estate, i.e., the death of the life tenant (or the measuring life).

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of K. Garl Long
Sent: Thursday, March 18, 2021 4:11 PM
To: WSBA RPPT Real Property Discussion Forum <wsbarp at LISTS.WSBARPPT.COM>
Subject: [WSBARP] What estate is this


Long time caretaker promised real property by decedent in payment for providing care.  Decedent's will provides:

"If she survives me, I hereby give, devise and bequeath to Mary for her life, and then to Windy, the farm property legally described as ..."

Does Mary receive in fee simple, an estate measured by her life (which she can alienate), a life estate for which she can collect income (but does not have to pay expenses), or some other possessory estate?

Or perhaps the scrivener just meant that if Mary did not survive the decedent it should go to Windy?

You thoughts most valued and appreciated,

Garl
--

Law Offices of K. Garl Long - Mount Vernon, Washington - (360) 336-3322

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