PROPERTY A SLIDES
2-27-15
Friday Feb 27 Music:
Cistercian Monks of
Stift Heiligenkreuz
CHANT
PROPERTY A: 2/27
Xtreme Reality Television
a quick peek into the future
Xtreme Reality Television
GOVERNOR SWAP
Have you ever wondered whether the grass is greener in a
different state? Two governors, one from a red state and one
from a blue state, discover that it often isn't when they hand
over the keys to their offices and literally switch
administrations for two weeks.
Xtreme Reality Television
DANCE MOMS of the SERENGETI
Follow young tribal dancers’ early steps on the road to stardom with
their doting mothers in tow for every rehearsal, performance and bow …
Xtreme Reality Television
DANCE MOMS of the SERENGETI
Follow young tribal dancers’ early steps on the road to stardom with
their doting mothers in tow for every rehearsal, performance and bow …
all while dodging crocodiles and hippos at the water hole next
to their studio.
Xtreme Reality Television
BUSH DYNASTY
The Story of the Family that (Sometimes) Runs
the USA
This Week: Can Jeb Still Get the Cool Job in Washington
After His Kid Brother Got There First?
Xtreme Reality Television
Survivor Chef Antarctica
Contestants prepare gourmet dishes with
penguins, seals, and killer whales they have to
catch themselves.
Featuring Padma Lakshmi & Shaun White
Xtreme Reality Television
Top Model Under the Guns
From Caracas to Kabul to Kiev, Our Aspiring
Models Bring Fashion to the World’s War Zones
Who Will Be Eliminated Tonight?
“Take Cover, Girl!!!”
Tyra Banks
Anderson Cooper
Pop Culture Update
Me on 3/3/14: Top Model Under the Guns
From Caracas to Kabul to Kiev, Our Aspiring Models Bring
Fashion to the World’s War Zones
Miami Herald on 3/9/14: Miami Company Takes
Golfers Into Danger Zones
You can play golf in Kabul on Afghanistan’s only
course, protected by a professional security team --
You Can’t Make This Stuff Up
Miami Herald on 3/9/14: Miami Company Takes
Golfers Into Danger Zones
You can play golf in Kabul on Afghanistan’s only
course, protected by a professional security team
for only $40,000 to $80,000
for a five-day excursion.
CHAPTER 4:
The Shadow of
the Past
HOLD QUESTIONS FOR TODAY
Approaching Chapter 4
Approaching Chapter 4: Vocabulary
LEARN THEIR NAMES
SPOT
BUTCH
Approaching Chapter 4: Vocabulary
Approaching Chapter 4: Policy Concerns
• Interests Created by Voluntary Transfers of Property
Rights, so Generally Want to Fulfill Grantor’s Intent
• BUT in Tension with Competing Policy Concerns
Approaching Chapter 4: Policy Concerns
Laypeople Don’t Know Categories
Leads to Tension Between Grantor’s Intent & Channeling
Function (Telling State What to Do w Property
Conveyed)
See White v. Brown (Tuesday)
Approaching Chapter 4: Policy Concerns
• Grantor’s Intent v.
– Channeling Function
Approaching Chapter 4: Policy Concerns
• Grantor’s Intent v.
– Channeling Function
– Dead Hand Control
Approaching Chapter 4: Policy Concerns
• Grantor’s Intent v.
– Channeling Function
– Dead Hand Control
–
Alienability
Approaching Chapter 4:
How You’ll Be Tested
• 24 Question Multiple Choice Test (70 Minutes)
• Closed Book, But Syllabus Attached
• Approximately 1/6 of Final Grade
• Sample Qs with Answers/Explanations
– I’ll Make Many Available & Reuse Some
– Posted After We’ve Done Substance
Approaching Chapter 4:
Relevant Time Frames
• “At Common Law”: Dates prior to modern
streamlining of the rules.
(e.g., 1600-1800)
Approaching Chapter 4:
Relevant Time Frames
• “At Common Law”: Dates prior to modern streamlining of the
rules. (e.g., 1600-1800)
• “Today”: Dates after modern streamlining of
the rules. (e.g., 1950-present)
Approaching Chapter 4:
Relevant Time Frames
• “At Common Law”: Dates prior to modern streamlining of the rules.
(e.g., 1600-1800)
• “Today”: Dates after modern streamlining of the rules. (e.g., 1950present)
• Precise line between them varies from state to state
and from issue to issue, so you don’t need to know
where it is.
Approaching Chapter 4:
Relevant Time Frames
In Multiple Choice Qs, I Will Do One of the Following:
a) Explicitly Say “At Common Law”
b) Provide a Date After 1950 (Clearly Means “Today”)
c) Provide a Fact That Clearly Means “Today” (e.g., cell phone; computer)
d) Give no Info in Q, but Some of the Answer Choices will Indicate
“Common Law” or “Today”
Present Possessory
Estates
PRESENT POSSESSORY ESTATES
• Present v. Future
(Tenant v. Landlord)
PRESENT POSSESSORY ESTATES
• Present v. Future
• Possessory v. Non-Possessory:
(Tenant v. Trust Beneficiary)
FEE SIMPLE ABSOLUTE
FEE SIMPLE ABSOLUTE
• “Simple”= can go on forever (to distinguish from
“Fee Tail”)
FEE SIMPLE ABSOLUTE
• “Simple” = can go on forever (to distinguish from “Fee Tail”)
• “Absolute” = no conditions (to distinguish from
conditional or “defeasible” fees, which we’ll introduce
next week.)
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.
Lots More on Remainders Next Week
Chapter 3: Where There’s a Will … and Where There Isn’t:
Property Transfer at Death
• General Introduction
• Intestate Succession
•Wills
• Generally
• Will Formalities
• Substantial Compliance
• State of Mind Requirements
• Capacity (continued)
• Undue Influence
Capacity Generally (DQ3.05: Biscayne)
Why not allow them to draft wills if no dependents?
(After death, no need to take care of themselves)
• All jurisdictions invalidate if non-capacity proved
• BUT if capacity proved, can do any crazy stuff you
want (if no spouse/minor children)
• BUT if incapacity proved, we invalidate will even if
sensible
Strittmater & DQ3.06: Biscayne
Evidence Going to Strittmater’s Capacity (Jury Argument)
• Evidence Supporting “No Sound Mind” includes:
• MD testimony: symptoms of split personality
• “Happy childhood,” then turning on parents
• Great aversion to men
• Ominous Incidents: smashing clock; killing kitten
Strittmater & DQ3.06: Biscayne
Evidence Going to Strittmater’s Capacity (Jury Argument)
• Evidence Supporting “Sound Mind” includes:
• Behavior with lawyer & bank
• Beneficiary was org. she belonged to/volunteered for (so logical to
support in will)
• Not close to nearest relative
• MD who testified was GP (not psych expert)
• Note Problem re “happy childhood”: According to who?
Strittmater & DQ3.06: Biscayne
Traditional Test: Was T Aware of …
a. Natural Objects of Her Bounty:
•
What Are Generally? Here?
b. Nature/Extent of Her Property: What she had
c. Nature of Disposition: What she was doing with it
Any Evidence Test Not Met Here?
Capacity: Some General Points
• Traditional Test can Incorporate:
–
General Evidence of Incapacity re “Awareness”
– Specific Evidence re Context. E.g.,
• Existence of/Relationship with Relatives
• Value of Gifts & of Estate as a Whole
• Will Invalid if Based on “Insane Delusion”
–Specific False Belief Without Reasonable Foundation
–Strittmater: “insane delusion about the male”
Strittmater & DQ3.06: Biscayne
Can you imagine a story (other than the one
the court accepts) that might explain her
behavior?
Tuesday: Review Problem 3C (Yellowstone)
• General Evidence Suggesting Incapacity
• Application of Traditional Three-Part Test
• Background Qs:
• What is a“Hemophiliac”?
• Why is Character with Hemophilia Called Victoria
Zayres?
REVIEW PROBLEM 3C: Victoria Zayres
Queen
Victoria’s
Heirs &
Hemophilia
Thursday: Review Problem 3D & Capacity
(Two-Sided Argument w Critique)
LOTS OF EVIDENCE TO PLAY WITH
• General Evidence Suggesting Incapacity
• Application of Traditional Three-Part Test
Chapter 3: Where There’s a Will … and Where There Isn’t:
Property Transfer at Death
• General Introduction
• Intestate Succession
• Wills
• Generally
• Will Formalities
• Substantial Compliance
• State of Mind Requirements
• Capacity
• Undue Influence
State of Mind: Undue Influence
• Every state has statute (& cases interpreting) barring transfers if
unduly influenced by a beneficiary or on a beneficiary's behalf.
• As in Fl and Okla: Focus on loss of free will by testator
• Classic case not dissimilar from Webb: Grandma & Gigolo
• Webb says must be “wrongful’ BUT
• Difficult to distinguish undue influence from “due” influence:
• OK if somebody’s kindness or hard work persuades the testator to
leave them money or property?
Undue Influence: DQ3.07 (Biscayne)
OKLAHOMA STATUTE (S68 fn4)
• Undue influence consists:
1. In the use, by one in whom a confidence is reposed by another, or
who holds a real or apparent authority over him, of such confidence
or authority for the purpose of obtaining an unfair advantage over
him.
2. In taking an unfair advantage of another's weakness of mind; or,
3. In taking a grossly oppressive and unfair advantage of another's
necessities or distress.
Undue Influence: DQ3.07 (Biscayne)
FLORIDA DEFINITION
• "fear, overpersuasion, duress, force or coercion to the extent of
destroying the free agency and will power of the testator and must be
operative on the mind of the testator at the time the will is
executed."
• BUT "influence, consisting of appeals, requests, entreaties,
arguments, flattery, cajolery, persuasion, solicitations or even
importunity, is legitimate" as long as “doesn't destroy the free agency
of testator.”
Undue Influence: Estate of Webb
A. Testatrix, Executrix, Aviatrix, Dominatrix
B. Amazing life of Testatrix Clara Webb:
1. Teaching in Cement, retires to Amber;
2. Outlives brother Wallace (source of heirs at law) by 50 yrs
3. 25 yr retirement; relatively rich for < 9 months
C. Beneficiary: Donnavin Higgins
1. Bulldozer + violin (not fiddle!!)
2. Bankruptcy & Divorce after he met Clara
Undue Influence: DQ3.08 (Biscayne)
Evidence in Webb
• NOTE: Trial Court found Undue Influence; Should be
Deference to Findings
• Fair Amount of Evidence Supporting Undue Influence
• Even More Supporting Court’s Rejection
Undue Influence: DQ3.08 (Biscayne)
Evidence in Webb supporting Undue Influence?
• DH not family member
• Ages 46/85 when met
• While alive, CW gave $/car/land to DH
• DH gets about 260K worth of property in will
• DH drove CWto write will
• CW very old; possibly weakened by pending illness
Undue Influence: DQ3.08 (Biscayne)
Evidence in Webb refuting Undue Influence?
• Evidence CW’s Free Agency Not Destroyed:
• Lot of evidence she was strong-willed
• Story: Ct sees CW as educated strong woman, never married …
• as opposed to helpless widow or “lil ol lady”
• Dr says CW alert & oriented two months after will
• Court says it Fails to See Anything DH Did or Could Have Done
Anything to Overcome Her Free Agency
• DH little education himself
• Court doesn’t say explicitly, but no evidence DH was good-looking or
flirting; no evidence of anything romantic or sexual
• D didn’t participate in the drafting of the will
Undue Influence: DQ3.08 (Biscayne)
Evidence in Webb refuting Undue Influence?
• Evidence CW’s Free Agency Not Destroyed
• Distribution of Gifts Reasonable in Context
• CW spent $$ b/c she suddenly had it
• DH driving car gave CW freedom
• Kindness/gratitude ok
• Gift outside family not unnatural, no kids, not close to other relatives
• Actual Distribution in Will Included …
• Only 1/3 of total to DH
• Lot of gifts to others & to charities (including $10K to evil niece)
Undue Influence: DQ3.08 (Biscayne)
Evidence in Webb refuting Undue Influence?
• Evidence CW’s Free Agency Not Destroyed
• Distribution of Gifts Reasonable in Context
• Timing Inconsistent with Story re DH as Gold-Digger
• Friendship betw. CW & DH precedes inheritance by 4+ yrs
• DH couldn’t count on her outliving rich brother 16Y younger
• Nobody knew CW was sick when will drafted
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
• 2014 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
REDWOOD: Rev. Prob. 3B (Formalities)
REDWOODS & FERNS
Review Problem 3B (Redwood)
Formalities Issues Here?
Review Problem 3B (Redwood)
Presence Reqmts & 2d Witness
•
1st W did not sign in presence of 2d Witness
•
•
If required, will would fail unless substantial compliance
T did not sign in presence of 2d Witness
•
Consequences?
Review Problem 3B (Redwood)
Presence Reqmts & 2d Witness
•
1st W did not sign in presence of 2d Witness
If required, will would fail unless substantial compliance
•
•
T did not sign in presence of 2d Witness
•
Some states: absolute reqmt
•
Some states: T can acknowledge
•
Some: This is my will” (done here)
•
Some “This is my signature” (not done here)
SHENANDOAH: Rev. Prob. 3B
(Substantial Compliance)
APPALACHIAN TRAIL
Review Problem 3B (Shenandoah)
Substantial Compliance
•
Assume Both Presence Reqmts Not Met
•
Apply Test (Some States): [W]hen formal defects occur,
proponents [must] prove by clear and convincing evidence that
the will substantially complies with the statutory requirements.
•
Arguments Should Consider:
•
Purposes of Presence Reqmts
•
Video might or might not be found and/or be admissible