PROPERTY A SLIDES 2-27-15. CHANT Friday Feb 27 Music: Cistercian Monks of Stift Heiligenkreuz CHANT.

PROPERTY A SLIDES2-27-15

Friday Feb 27 Music:

Cistercian Monks of Stift Heiligenkreuz

CHANTCHANT

PROPERTY A: 2/27

GOVERNOR SWAPHave 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.

DANCE MOMS of the

SERENGETISERENGETIFollow young tribal dancers’ early steps on the road to stardom with Follow young tribal dancers’ early steps on the road to stardom with

their doting mothers in tow for every rehearsal, performance and bow …their doting mothers in tow for every rehearsal, performance and bow …

DANCE MOMS of the

SERENGETISERENGETIFollow young tribal dancers’ early steps on the road to stardom with Follow young tribal dancers’ early steps on the road to stardom with

their doting mothers in tow for every rehearsal, performance and bow … their doting mothers in tow for every rehearsal, performance and bow … allall while dodging crocodiles and hippos at the while dodging crocodiles and hippos at the

water hole next to their studio.water hole next to their studio.

BUSH DYNASTYBUSH DYNASTY

The Story of the Family that (Sometimes) Runs The Story of the Family that (Sometimes) Runs the USAthe USA

This Week: Can Jeb Still Get the Cool Job in Washington This Week: Can Jeb Still Get the Cool Job in Washington After His Kid Brother Got There First?After His Kid Brother Got There First?

Survivor Chef AntarcticaSurvivor Chef AntarcticaContestants prepare gourmet dishes with Contestants prepare gourmet dishes with

penguins, seals, and killer whales they have penguins, seals, and killer whales they have to catch themselves. to catch themselves.

Featuring Padma Lakshmi & Shaun WhiteFeaturing Padma Lakshmi & Shaun White

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 UpdateMe on 3/3/14: Top Model Under

the GunsFrom Caracas to From Caracas to KabulKabul to Kiev, Our Aspiring to Kiev, Our Aspiring

Models Bring Fashion to the World’s War ZonesModels Bring Fashion to the World’s War Zones

Miami Herald on 3/9/14: Miami Company Takes Golfers Into

Danger ZonesYou can play golf in You can play golf in KabulKabul on Afghanistan’s on Afghanistan’s

only course, protected by a professional only course, protected by a professional security team --security team --

You Can’t Make This Stuff UpMiami Herald on 3/9/14: Miami Company Takes Golfers Into

Danger ZonesYou can play golf in You can play golf in KabulKabul on on

Afghanistan’s only course, protected by a Afghanistan’s only course, protected by a professional security team professional security team

for only $40,000 to $80,000 for only $40,000 to $80,000

for a five-day excursion.for a five-day excursion.

CHAPTER 4:CHAPTER 4:The Shadow of The Shadow of

the Pastthe Past

HOLD QUESTIONS FOR TODAY

Approaching Approaching Chapter 4Chapter 4

Approaching Chapter 4: Approaching Chapter 4: VocabularyVocabulary

SPOT BUTCH

LEARN THEIR NAMES

Approaching Chapter 4: Approaching Chapter 4: VocabularyVocabulary

Approaching Chapter 4: Policy Approaching Chapter 4: Policy ConcernsConcerns

• Interests Created by Voluntary Transfers of Property Rights, so Generally Want to Fulfill Grantor’s Intent• BUT in Tension with Competing Policy Concerns


Laypeople Don’t Know CategoriesLeads to Tension Between Grantor’s Intent & Channeling

Function (Telling State What to Do w Property Conveyed)

See White v. Brown (Tuesday)


• Grantor’s Intent v. – Channeling Function


• Grantor’s Intent v. – Channeling Function

–Dead Hand Control


• Grantor’s Intent v. – Channeling Function – Dead Hand Control

– Alienability

Approaching Chapter 4: Approaching Chapter 4: How You’ll Be TestedHow 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: Approaching Chapter 4: Relevant Time FramesRelevant Time Frames

• “At Common Law”: Dates prior to modern streamlining of the rules.

(e.g., 1600-1800)


• “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)


• “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)

• Precise line between them varies from state to state and from issue to issue, so you don’t need to know where it is.


In Multiple Choice Qs, I Will Do One of the Following:

a)a)Explicitly Say “At Common Law”Explicitly Say “At Common Law”

b)b)Provide a Date After 1950 (Clearly Means “Today”)Provide a Date After 1950 (Clearly Means “Today”)

c)c)Provide a Fact That Clearly Means “Today” (e.g., cell Provide a Fact That Clearly Means “Today” (e.g., cell phone; computer)phone; computer)

d)d)Give no Info in Q, but Some of the Answer Choices will Give no Info in Q, but Some of the Answer Choices will Indicate “Common Law” or “Today”Indicate “Common Law” or “Today”

Present Present Possessory Possessory

EstatesEstates

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.)

• 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.



• Right to liquidate assets


• 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)



• Right to liquidate assets

• Default Estate Today


• 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.)


• “Issue” = Direct Descendants

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


• “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


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


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.


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.


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.

Lots More on Remainders Next WeekLots 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 Why not allow them to draft wills if no dependents? (After death, no need to take dependents? (After death, no need to take

care of themselves)care of themselves)

• All jurisdictions invalidate if non-capacity All jurisdictions invalidate if non-capacity provedproved• 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


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?


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”


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 RequirementsState of Mind Requirements• Capacity• Undue InfluenceUndue 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)OKLAHOMA STATUTE (S68 fn4)•Undue influence consists:Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another, or 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 who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over or authority for the purpose of obtaining an unfair advantage over him.him.2. In taking an unfair advantage of another's weakness of mind; or,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 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress.necessities or distress.


FLORIDA DEFINITION 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 WebbA. 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 yrs3. 25 yr retirement; relatively rich for < 9 months

C. Beneficiary: Donnavin Higgins1. Bulldozer + violin (not fiddle!!)2. Bankruptcy & Divorce after he met Clara


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


Evidence in Webb supportingsupporting 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 refutingrefuting 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


Evidence in Webb refutingrefuting 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)


Evidence in Webb refutingrefuting 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”)


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


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


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?


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?


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 MetAssume Both Presence Reqmts Not Met

•Apply Test (Some States): [W]hen formal defects Apply Test (Some States): [W]hen formal defects occur, proponents [must] prove by clear and occur, proponents [must] prove by clear and convincing evidence that the will substantially convincing evidence that the will substantially complies with the statutory requirements.complies with the statutory requirements.

•Arguments Should Consider:Arguments Should Consider:• Purposes of Presence ReqmtsPurposes of Presence Reqmts

• Video might or might not be found and/or be Video might or might not be found and/or be admissibleadmissible

PROPERTY A SLIDES 2-27-15. CHANT Friday Feb 27 Music: Cistercian Monks of Stift Heiligenkreuz CHANT.

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