Restraint on Alienation

Williams v. Williams, 73 S.W.3d 376 (Tex. App.—Houston [1st Dist.] 2002, no pet.).


Testator devised real property to his Children. The devise provided that if any child wanted to sell his or her share to someone other than Testator’s Siblings, the written consent of all of the surviving Siblings was required. After all Siblings die, however, Children may sell to anyone, but the descendants of Siblings will have a right of first refusal. Two of the children conveyed their interests to third parties without obtaining the prior consent. The remaining children sued to set aside the sales for violating the terms of the devise. The trial court granted summary judgment in favor of the selling children.

The appellate court affirmed. The provision requiring Testator’s Siblings to approve a sale is a restraint on alienation which is against public policy and thus not enforceable. The court rejected the claim that the will merely created rights of first refusal. Only after all of Testator’s Siblings are deceased does the will impose a right of first refusal on Siblings’ descendants.

Moral: A restraint on alienation in a will otherwise conveying a fee simple right to the property is void. Thus, a person wishing to impose restrictions on alienation should consider other techniques such as a trust.