Legal Question in Wills and Trusts in Virginia

Re: Personal and Permanent Resident

I do not have a definition for "Personal & Permanent", but think common sense works here. Does the life tenant sufficiently "reside" on the property, or merely use it as a mail drop? Is husband nearby or does work cause him to live in another city/state? People have second homes, etc. & I certainly do not believe spending 3 months in Winter in Fla. would defeat the life estate. Alternatively, if she is not maintaining the property as her primary residence (perhaps look at IRS definition), the life estate may be subject to challenge.

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Re: Personal and Permanent Resident

''Personal and permenent residence'' is something that the decedent developed on their own. To my knowledge, there is no standard meaning to this phrase. Therefore, it would be a question of interpretation according to the normal and ordinary meaning of these words, as far as I am aware.

Personal residence is fairly obvious, meaning that it is a residence for personal use.

Permanent is far less clear in this situation.

For example, suppose if a buy a house in Virginia in August, I am free as a U.S. citizen to then go on a world cruise for 3 months, then visit my brother for two months, and then visit my parents for a month, and then spend 2 months at my vacation cottage by the lake (if I had one), and 2 months on a humanitarian mission in the Sudan.

So, I could be absent from my home for 10 months out of the year, and this would be entirely consistent with the house being my primary residence.

The question is not how much time she spends IN the house, but whether there is another place that is obviously her "real" primary residence.

For example, a single woman can live in one apartment and yet sleep over at her boyfriend's apartment 3 or 4 nights a week for other reasons. The question is which one is her "real" residence? Does she maintain everything at her own apartment and just stop by her boyfriend's place? Or is "her" apartment only a fiction to satisfy her parents? Where would you find the main concentration of all of her belongings, especially those things needed on a daily basis? Which is the real focus of her life?

In your example, I think the most telling fact is that the daughter is married, and the husband lives somewhere else. Although the question is going to be a fact-sensitive, case-by-case one, it would seem to me that if someone is married, and the husband lives somewhere else, it is transparently clear that where her husband lives is her "real" residence (unless they are estranged or separated).

I also think it would be obvious that the meaning of the will was to provide the daughter with a place to live... not a hotel to stay in occasionally. The intent of the decedent is the most important, controlling factor. The presumptive purpose of a life estate in a house is to give the life tenant somewhere to live. The fact that she has a different place to live does not sound like the intent of the decedent.

To challenge this would require legal action which would become a fact-intensive debate, based on what is actually happening, and would not be clear or easy.

But I think the intent of the decedent would have been for the daughter's entire family to move in to the house, not for her to stay there every now and then.

In fact, this might even be challenged under the doctrine of "waste" -- meaning that someone could be making better use of the house than as an occasional hotel.