PROPERTY D SLIDES 2-27-14. Thursday Feb 27 Music: Cistercian Monks of Stift Heiligenkreuz, Chant...

PROPERTY D SLIDES2-27-14

Thursday Feb 27 Music: Cistercian Monks of Stift Heiligenkreuz, Chant

Lunch Today: Meet on Brix @ 12:25Ciampittiello; Lipschultz; Martinez; Rasile;

Sigurani; Tarafa

Biscayne ReminderBiscayne Reminder: : Critique of Rev. Prob. 3B Due Today @ 10amCritique of Rev. Prob. 3B Due Today @ 10am

Present Present Possessory Possessory

EstatesEstates

FEE SIMPLE ABSOLUTE

• Right to possess and use forever• Right to transfer all present and future rights

(inheritable/devisable)• Right to liquidate assets• Default estate today

FEE SIMPLE ABSOLUTE

FEE SIMPLE ABSOLUTE

CREATION (today or at common law): Lloyd grants Redacre “to Mimi and her heirs.”

FEE SIMPLE ABSOLUTE

Lloyd grants Redacre “to Mimi and her heirs.”

WORDS OF PURCHASE: Who Gets the Estate?

FEE SIMPLE ABSOLUTE

Lloyd grants Redacre “to Mimi and her heirs.”

WORDS OF PURCHASE: Who Gets the Estate?

WORDS OF LIMITATION: What Estate Do They Get?

FINITE ESTATES

TERM OF YEARS

FEE TAIL

LIFE ESTATE

FINITE ESTATES

TERM OF YEARS: “TO ANN FOR TEN YEARS”

•Words of Purchase = “to Ann”

•Words of Limitation = “for Ten Years”

LIFE ESTATE

FEE TAIL

TERM OF YEARS

• Finite period specified • Can alienate, devise, inherit (until term ends)• Need explicit time language to create: (“for 99 years”)• Effectively creates long-term lease

FINITE ESTATES

TERM OF YEARS: TO ANN FOR TEN YEARS

LIFE ESTATE: “TO BEA FOR LIFE”

•Words of Purchase = “to Bea”

•Words of Limitation = “for Life”

FEE TAIL:

Fee Simple Absolute v. Life Estate• Right to possess and use

forever• Right to possess and use

only for lifetime of original grantee

Fee Simple Absolute v. Life Estate• Right to possess and use forever

• Right to transfer all present and future rights (inheritable & devisable)

• Right to possess and use only for lifetime of original grantee

• Right to transfer only rights for lifetime of original grantee (not inheritable or devisable)

What if a living person transfers a life estate?

• Opal conveys Gemacre “to Ruby for life” (retaining a reversion for herself).

• Ruby then conveys her life estate “to Esmeralda.”• What does Esmeralda have?

What if a living person transfers a life estate?What if a living person transfers a life estate?

• Opal conveys Gemacre “to Ruby for life”, retaining a reversion herself.

• Ruby then conveys her life estate “to Esmeralda.”• Esmeralda has a life estate pur autre vie (for the life of another).

The duration of the interest is still measured by Ruby’s life.

Fee Simple Absolute v. Life Estate• Right to possess and use forever

• Right to transfer all present and future rights (inheritable & devisable)

• Right to liquidate assets

• Right to possess and use only for lifetime of original grantee

• Right to transfer only rights for lifetime of original grantee (not inheritable/ devisable)

• Right only to present income; can’t liquidate capital (Doctrine of Waste)

Fee Simple Absolute v. Life Estate• Right to possess and use forever

• Right to transfer all present and future rights (inheritable & devisable)

• Right to liquidate assets

• Default Estate Today

• Right to possess and use only for lifetime of original grantee

• Right to transfer only rights for lifetime of original grantee (not inheritable/ devisable)

• Right only to present income; can’t liquidate capital (Doctrine of Waste)

• Default Estate at Common Law

DEFAULT ESTATE (“To Bill.”)What does Bill get if not specified (no words of

limitation)?

• Common Law: Default was Life EstateBill gets Life EstateGrantor keeps Reversion

DEFAULT ESTATE (“To Bill.”)What does Bill get if not specified (no words of

limitation)?

• Common Law: Default was Life EstateBill gets Life Estate; Grantor keeps Reversion

• Today: Default is Fee Simple–Bill gets Fee Simple Absolute–Grantor keeps nothing

FINITE ESTATES

TERM OF YEARS: TO ANN FOR 10 YEARS

LIFE ESTATE: TO BEA FOR LIFE

FEE TAIL: “TO CAL & THE HEIRS OF HIS BODY”

VOCABULARY: ISSUE v. HEIRS

• “Issue” = Direct (= “Lineal”) Descendants (Children, Grandchildren, etc.)

VOCABULARY: ISSUE v. HEIRS

• “Issue” = Direct Descendants

• “Heirs” = People who inherit your property at the time of your death under the relevant Intestacy Statute

VOCABULARY: ISSUE v. HEIRS

• “Issue” = Direct Descendants • “Heirs” = People who inherit your property at the time

of your death under the relevant Intestacy Statute

• You cannot have heirs until the moment of death (presumptive heirs before that).

FINITE ESTATES

TERM OF YEARS: TO ANN FOR 10 YEARS

LIFE ESTATE: TO BEA FOR LIFE

FEE TAIL: TO CAL & THE HEIRS OF HIS BODY

•Words of Purchase = “to Cal”

•Words of Limitation = “and the Heirs of His Body”

FEE TAIL: TRADITIONAL RULES

• Grantee(X) has present & future possessory right until death– Only X’s issue can take after X's death– Only issue of issue-who-took can take in future– Equivalent to downward chain of life estates (thus finite)– Error in “Definition” in course materials on S80 corrected on new page.

• Present holders can only alienate life estates; no rights to transfer rights to own/possess the parcel after their death

FEE TAIL: TRADITIONAL RULES• Creation at common law: “to A & heirs of his body”– Grant creates no interest in A's issue until A dies.– B/c chain of life estates, won't know who takes till A dies

• Can have special fee tails– “To A & heirs of his body by Wilhelmina” (only future takers are children of

both A & W and their issue)– “ To A & male heirs of his body” (only future takers are A’s male issue)

FEE TAIL: TODAY

• Traditional fee tail abolished in every American jurisdiction.• What to do if grantor uses language “heirs of his/her

body?”– Statutes determine; different solutions in different states.–Outside scope of course.

Future Interests Future Interests that Follow Finite that Follow Finite

EstatesEstates

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES

•REVERSION

•REMAINDER

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES

REVERSIONREVERSION

Future interest retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires.

Fun with Scissors

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES

REVERSIONREVERSION

Future interest retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires. E.g.:

Ceci conveys Greenacre “To Didi for life.” (No other instructions.)

Ceci retains a reversion.

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES

REMAINDERREMAINDER

Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor.

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES

REMAINDERREMAINDER

Future interest in a third party that follows naturally upon the termination of a finite estate. It is always expressly conveyed by the grantor. E.g.:

Fifi conveys Tanacre “To Gigi for life, then to J.J. and his heirs”

J.J. has a remainder. Fifi retains nothing.

More on Remainders Next Time

QUESTIONS?

LOGISTICS: NOW ON COURSE PAGE• Instructions/Info on Chapter 4 TestInstructions/Info on Chapter 4 Test

• In Chapter 4 Supplement: Page S80 In Chapter 4 Supplement: Page S80 ReplacedReplaced

• Info Memo #2 re Chapter 1 Info Memo #2 re Chapter 1 (eyeball briefly):(eyeball briefly):–Exam Coverage Overview –Relevant Old Exam Questions –Student Qs & My Responses–Write-Ups of Selected DQs –Review Problems: Comments & Best Answers

REDWOOD: Rev. Prob. 3B2 (Critique)

REDWOODS & FERNS

Critique of Review Problem 3B2 (Redwood)

• For General Instructions See Info Memo #1 For General Instructions See Info Memo #1 @ IM10@ IM10• You are critiquing arguments made in class today.You are critiquing arguments made in class today.

• Plaintiff = Arguments will is invalidPlaintiff = Arguments will is invalid

• Defendant = Arguments will is validDefendant = Arguments will is valid

•Written Submission Due by E-Mail Saturday 3/1 @ Written Submission Due by E-Mail Saturday 3/1 @ 4 p.m.4 p.m.• Note You Get a Few Extra Hours b/c SaturdayNote You Get a Few Extra Hours b/c Saturday

• Please Label as “Review Problem 3B2”Please Label as “Review Problem 3B2”

• E-Mail me if QsE-Mail me if Qs

ARCHES: Review Problem 3B2

DELICATE ARCHES

Review Problem 3B2 (S59) (Arches)

Evidence/Arguments Supporting Undue Influence?

Evidence/Arguments Refuting Undue Influence?

Stronger Position Overall?

Closing Up Capacity & Undue Influence

•Both doctrines subject to manipulation by courts

•By definition in these cases, formalities met, yet court can throw out will

•Strong family bias, even where no real sense of family as in Strittmater

•Courts likely to have cultural biases (“Pre-Understanding”)

Closing Up Capacity & Undue Influence

Cultural Biases (“Pre-Understanding”)Webb: Maybe different result if:

• he is 23, not 46• both men or both women• relatives less nasty• less evidence of her independence to counter stereotype of “little old lady”

Strittmater: Maybe different result if:• Gift to Libertarian Party or mainstream party opposed by her parents• Specific evidence of bad behavior by parents

Closing Up Capacity & Undue Influence

Working for Clients: Anticipate Problems•Will drafting & creation to increase reliability

• Build In Safeguards. E.g.,• Extra Witness• This is my will; this is my signature• T’s Signature on every page

• If Special Reason to Anticipate Challenge, Take Added Precautions• AIDS & Videotaping to Minimize Capacity Challenges• McKenzie Q re Blind Testators: Similar to Minimize Fraud Challenges

• If litigating, craft presentation of story to take into account likely biases of courts

Closing Up Capacity & Undue Influence

Working for Clients• Important Concern from 2013 Student re Clients Being Harmed by Lawyer Incompetence• Common Problem•We Undo Criminal Convictions, Usually Not Other Judgments or

Transactions• Plausible Remedy in Malpractice Suit (cf. Doctors)• Could Use as Policy Argument Supporting Adoption of “Substantial

Compliance” Rule

BISCAYNE: Rev. Prob. 3F

SUNRISE AT ADAMS KEY

Review Problem 3F (S76) (Biscayne)

Part of Lawyering Question•Dentist Shelly Asks re Great Aunt’s Abbigail’s Will•A (76) died of brain tumor; A’s personal trainer, Matt (37) left his job to care for A when she became ill.•Under Will (must assume proper formalities)–M gets “most” of A’s “sizable estate”

–S gets A’s house, which includes space for medical/dental practice

Review Problem 3F (S76) (Biscayne)

MAJOR TOPICS FOR INQUIRY?

Review Problem 3F (S76) (Biscayne)

MAJOR TOPICS FOR INQUIRY

• Capacity (given brain tumor)

• Undue Influence (most likely claim)

• Effect of Invalidity of Will (necessary!)

Review Problem 3F (S76) (Biscayne)

Effect of Invalidity of WillEffect of Invalidity of Will

•Legal Research?

•Factual Research?

Review Problem 3F (S76) (Biscayne)

Undue InfluenceUndue Influence

•Legal Research?–Statutes/Cases on Undue Influence Generally –Specific Topics You Might Look For?

•Factual Research?