PROPERTY D SLIDES
2-27-14
Thursday Feb 27 Music:
Cistercian Monks of Stift Heiligenkreuz, Chant
Lunch Today: Meet on Brix @ 12:25
Ciampittiello; Lipschultz; Martinez; Rasile; Sigurani; Tarafa
Biscayne Reminder:
Critique of Rev. Prob. 3B Due Today @ 10am
Present Possessory
Estates
FEE SIMPLE ABSOLUTE
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
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 possess and use only for
lifetime of original grantee
• Right to transfer all
present and future rights
(inheritable & devisable)
• 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?
• 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
• 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 Today
• 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 Estate
Bill gets Life Estate
Grantor keeps Reversion
DEFAULT ESTATE (“To Bill.”)
What does Bill get if not specified (no words of
limitation)?
• Common Law: Default was Life Estate
Bill 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 that
Follow Finite Estates
FUTURE INTERESTS THAT FOLLOW
FINITE ESTATES
•REVERSION
•REMAINDER
FUTURE INTERESTS THAT FOLLOW
FINITE ESTATES
REVERSION
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
REVERSION
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
REMAINDER
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
REMAINDER
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 Test
• In Chapter 4 Supplement: Page S80 Replaced
• Info Memo #2 re Chapter 1 (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 @ IM10
• You are critiquing arguments made in class today.
• Plaintiff = Arguments will is invalid
• Defendant = Arguments will is valid
• Written Submission Due by E-Mail Saturday 3/1 @ 4 p.m.
• Note You Get a Few Extra Hours b/c Saturday
• Please Label as “Review Problem 3B2”
• E-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 Will
•Legal Research?
•Factual Research?
Review Problem 3F (S76) (Biscayne)
Undue Influence
•Legal Research?
–Statutes/Cases on Undue Influence Generally
–Specific Topics You Might Look For?
•Factual Research?