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Dwayne B.
Dwayne B., Attorney
Category: Estate Law
Satisfied Customers: 33554
Experience:  Estate Law Expert
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Contract law ... My father owed me and my wife close to 200K

Customer Question

contract law ... My father owed me and my wife close to 200K and he offered the house or the money in a text message, I accepted his offer of receiving the house upon his death. He later died while separated from a woman "he married this woman after my mother passed away," he died while attempting to obtain a divorce from this other woman. She produced a will T"that was written while my mom was alive and my mother and father were married till she died" this woman stated she was to receive the house. "that will was written while my mom whose name is ***** ***** the property with my fathers name" His text about the money he owed me and the offer to obtain the house after he died is written in text that I still have and it was done during his and this woman's separation. who should receive the house. Now realize they had a separation agreement on file which states he would receive his property at the final outcome of the divorce. Do I have a valid winning argument under contract law for the house.
JA: Since estate law varies from place to place, can you tell me what state this is in?
Customer: NC
JA: Have you talked to a lawyer yet?
Customer: a cpl
JA: Anything else you think the lawyer should know?
Customer: no
Submitted: 1 year ago.
Category: Estate Law
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Your facts are a little confusing. Am I understanding you correctly in that the house at issue belonged to your mother and father together and then your mother passed away while they were still married?

If so, that would make your father's share of the house separate property. Did he add the new wife's name onto the property in any way?

Did he leave a will in which he left the house to the new wife?

What state is this in?

Customer: replied 1 year ago.
my mother and father were married till she died.
my father remarried. and somehow this woman obtained a will that says he has no children also the will was dated while my mother was alive. That she produced after my father died
he later sought a divorce.
during the separation he tried to settle his almost $200K debt to my wife and I,
He offered:
Which do you want the money or the house when I die
I accepted:
I want the house
During the separation he died
The separation agreement is on record with the court house
She claims she is entitled to the spousal allowance and the property
I say the will is not legit and based on their approach by putting a separation agreement on record she is not entitled to spousal support nor the property and furthermore I am entitled to the house based on my text messages from him and it is a binding agreement under contract law and upheld by Uniform Electronic Transactions Act (electronic signatures etc.) in NC
My question is who is right why and how?
Also what recourse do I have and how do I go about it?
The property was purchased by both my mother and father in 81 and the deed has never been altered and stands that way to this day in both my mother and my father's name.
This is in the state of NC
and no her name is ***** ***** the land parcel that my parents purchased
Expert:  Dwayne B. replied 1 year ago.

Was your mother's estate probated and, if so, did you receive a share of the house from your mother?

Customer: replied 1 year ago.
no it was not probated
and no I did not
Expert:  Dwayne B. replied 1 year ago.

Then, based purely on the contract claim, you should win. There are other issues such as whether or not you owned a portion of the property already but that is something you can argue as well. Your father had already agreed for you to take the property as payment for the debt and therefore the new wife can't now claim its use.

Customer: replied 1 year ago.
as for the rest
Chapter 31A.
Acts Barring Property Rights.
Article 1.
Rights of Spouse.
§ 31A-1. Acts barring rights of spouse.
(a) The following persons shall lose the rights specified in subsection (b) of this section:
(1) A spouse from whom or by whom an absolute divorce or marriage annulment has been obtained or from whom a divorce from bed and board has been obtained; or
(2) A spouse who voluntarily separates from the other spouse and lives in adultery and such has not been condoned; or
(3) A spouse who wilfully and without just cause abandons and refuses to live with the other spouse and is not living with the other spouse at the time of such spouse's death; or
(4) A spouse who obtains a divorce the validity of which is not recognized under the laws of this State; or
(5) A spouse who knowingly contracts a bigamous marriage.
(b) The rights lost as specified in subsection (a) of this section shall be as follows:
(1) All rights of intestate succession in the estate of the other spouse;
(2) All right to claim or succeed to a homestead in the real property of the other spouse;
(3) All right to petition for an elective share of the estate of the other spouse and take either the elective intestate share provided or the life interest in lieu thereof;
(4) All right to any year's allowance in the personal property of the other spouse;
(5) All right to administer the estate of the other spouse; and
(6) Any rights or interests in the property of the other spouse which by a settlement before or after marriage were settled upon the offending spouse solely in consideration of the marriage.
(c) Any act specified in subsection (a) of this section may be pleaded in bar of any action or proceeding for the recovery of such rights, interests or estate as set forth in subsection (b) of this section.
(d) The spouse not at fault may sell and convey his or her real and personal property without the joinder of the other spouse, and thereby bar the other spouse of all right, title and interest therein in the following instances:
(1) During the continuance of a separation arising from a divorce from bed and board as specified in subsection (a)(1) of this section, or
(2) During the continuance of a separation arising from adultery as specified in subsection (a)(2) of this section, or during the continuance of a separation arising from an abandonment as specified in subsection (a)(3) of this section, or
(3) When a divorce is granted as specified in subsection (a)(4) of this section, or a bigamous marriage contracted as specified in subsection (a)(5) of this section. (1961, c. 210, s. 1; 1965, c. 850; 2000-178, s. 6.)
Expert:  Dwayne B. replied 1 year ago.

Actually, I don't think that matters anyway. When you reached the agreement with your father by text I think it removed the property from being at issue in the divorce.

The only thing I see is that she may claim it can't be valid due to the "statute of frauds" since it wasn't "in writing". However, most courts appear to be finding that texts are sufficient to qualify as "a writing".

Customer: replied 1 year ago.
you mean the act that covers ncUniform Electronic Transactions Act (electronic signatures etc.)
Customer: replied 1 year ago.
she has been carrying on like she is entitled to everything and we are trying stop her do you think i have enough to stop her on all accts
Expert:  Dwayne B. replied 1 year ago.

Yes, I think you have multiple grounds to stop her. I wouldn't just rely on the text, I'd still argue the probate issues as well.

Customer: replied 1 year ago.
I think property goes to the surviving spouse in nc
Expert:  Dwayne B. replied 1 year ago.

NC has really strange intestate succession laws. You can read the setup at http://www.nolo.com/legal-encyclopedia/intestate-succession-north-carolina.html

That's one of the reasons I mentioned the probate aspect. At your mom's death I think you inherited at least a portion of your mom's share. The new wife wouldn't inherit that portion and would only inherit a portion of the amount that was left. You probably want to sit down with a local lawyer and let them do a chart for you showing you what portion of the property you own aside from the text message and then use that in your argument as well as the fact that your dad agreed for you to take the house in place of being repaid for the loan.