Giving The Same Property Twice In A Will

February 25, 2015

Authored by: Luke Lantta

There are clearer ways to create a life estate than what Hodge King used in his will.  The problem with Mr. King’s will was that he appeared to leave his real property to his wife, Mrs. King, in fee simple but then also appeared to leave that same property to his son and son’s children after Mrs. King’s death.  In Thompson v. Blackwell, the Georgia Supreme Court was tasked with interpreting Mr. King’s will to figure out what happens when you give the same piece of property to people, apparently to both in fee simple, in succession.

Let’s start where we always start: the language within the four corners of the will.  In Item II of his will, Mr. King provided:

I give, devise and bequeath to my wife, Hattie F. King, all my property, both real and personal, wherever located and whenever acquired, either before or after making of this my Will, hers in Fee Simple.

Okay, that seems clear – Mrs. King gets the property in fee simple.  End of story.  It would have been that simple if not for the very next Item in Mr. King’s will:

Upon the death of my said wife, all of the above described property remaining at such time, I give, devise and bequeath to my son, Theodore Roosevelt Thompson, presently residing in Orlando, Florida, and to his children born in lawful wedlock.  Should one or more of my son’s children die, then the surviving child or children shall be entitled to that share of such deceased child.

Now we have a problem – what’s everyone’s interest in this property when Mr. King purported to give different people a fee simple interest in his property?

The Georgia Supreme Court determined that Mr. King conveyed only a life estate to his wife with the remainder to be given to his son and grandchildren.  Although the language in Item II of Mr. King’s will was sufficient to convey a fee simple interest to Mrs. King in Mr. King’s property, a subsequent provision of the will (Item III) made it clear that it was the intention of the testator to devise a lesser estate to his wife.

Perhaps Mr. King had something else in mind with his property, but he was bound by the – albeit seemingly contradictory – language in his will.  Using clearer language and checking for consistency across a will can help make sure that a testator’s true intent is upheld after his death.