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.