property e slides 2-26-13. chapter 4: the shadow of the past

PROPERTY E SLIDES

2-26-13

CHAPTER 4:CHAPTER 4:The Shadow The Shadow

of of the Pastthe Past

HOLD QUESTIONS UNTILEND OF LECTURE

Approaching Approaching Chapter 4Chapter 4

Approaching Chapter 4: Approaching Chapter 4: VocabularyVocabulary

Approaching Chapter 4: Approaching Chapter 4: VocabularyVocabulary

SPOT BUTCH

LEARN THEIR NAMES

Approaching Chapter 4: Approaching Chapter 4: Policy ConcernsPolicy 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: Approaching Chapter 4: Policy ConcernsPolicy 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 (Thursday)

Approaching Chapter 4: Approaching Chapter 4: Policy ConcernsPolicy Concerns

• Grantor’s Intent v. – Channeling Function

Approaching Chapter 4: Approaching Chapter 4: Policy ConcernsPolicy Concerns

• Grantor’s Intent v. – Channeling Function

–Dead Hand Control

Approaching Chapter 4: Approaching Chapter 4: Policy ConcernsPolicy Concerns

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

– Alienability

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)

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)

• “Today”: Dates after modern streamlining of the rules. (e.g., 1950-present)

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)

• “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.

Approaching Chapter 4: Approaching Chapter 4: Relevant Time FramesRelevant 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 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: 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 10 YEARS”

FEE TAIL

LIFE ESTATE

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 10 YEARS

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

LIFE ESTATE:

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

FEE TAIL: TO CAL & THE HEIRS OF HIS BODY

LIFE ESTATE:

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 chain of life estates (thus finite)– Error in “Definition” in course materials S70 : should

read “direct line of descent from the grantee.”

• Present holders can only alienate life estates

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 W”– “ To A & male heirs of his body”

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.

FINITE ESTATES

TERM OF YEARS: TO ANN FOR 10 YEARS

FEE TAIL: TO CAL & THE HEIRS OF HIS BODY

LIFE ESTATE: “TO BEA FOR LIFE”

• 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

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

LIFE ESTATE

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

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

LIFE ESTATE

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.

• 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)

LIFE ESTATE

• 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• Default Estate at Common Law

LIFE ESTATE

DEFAULT ESTATE (“To Bill.”)What does Bill get if not specified?

• Common Law: Default was Life Estate

Bill gets Life EstateGrantor keeps Reversion

DEFAULT ESTATE (“To Bill.”)What does Bill get if not specified?

• 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

Future Future Interests that Interests that Follow Finite 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.

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?

DENALI: Review Problem 3B (S49): UNDUE INFLUENCE

Denali Caribou

DENALI: Review Problem 3B (S49): UNDUE INFLUENCE

• Best Evidence Supporting Undue Influence Claim – J in Confidential Relationship w S (Testator)– J is Beneficiary (Can Assume Auditorium = Valuable)

• BUT turned Over Drafting to B when S insisted on including J as beneficiary

Why Might That Not Help J?

DENALI: Review Problem 3B (S49): UNDUE INFLUENCE

• Best Evidence Supporting Undue Influence Claim – J in Confidential Relationship w S (Testator)– J is Beneficiary (Can Assume Auditorium = Valuable)– B is Junior Associate & J is Partner; Maybe not

sufficiently independent to avoid presumption of undue influence

• Evidence Countering Undue Influence Claim?

DENALI: Review Problem 3B (S49): UNDUE INFLUENCE

Evidence of No Undue Influence Includes: •Re Sean– Not close to family – Gave bulk of Estate to Charity– Seems Strong-Willed

•Re Jessica– J protested & didn’t draft key provision– No evidence that she knew of ultimate contents– J urged him to know family– J likely pretty solvent

DENALI: Review Problem 3B (S49): UNDUE INFLUENCE

• Bottom Line Probably Turns On:– Whether Court Believes B Was Sufficiently Independent of J– Strength of Presumption in Context of Lawyer as Beneficiary

• Important Rojas Concern 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

ACADIA: REVIEW PROBLEM: 3C (S59):VICTORIA ZAYRES

Acadia Sunrise

ACADIA: REVIEW PROBLEM: 3C (S59): Victoria Zayres

Queen Victoria’s Heirs &

Hemophilia

ACADIA: REVIEW PROBLEM: 3C (S59):VICTORIA ZAYRES

ISSUES TO DISCUSS•Undue Influence by Dr. (For You)•Fraud (Simple Point): If Can Prove Dr. Deliberately Misinterpreted VZ’s Mumbles•Capacity (Now)•NOTE: “All Proper Formalities” Takes Formalities Issues Off Table

ACADIA: REVIEW PROBLEM: 3C (S59):VICTORIA ZAYRES

CAPACITY1.General Evidence of Incapacity?2.Specific Evidence or Qs Going to Traditional Test: Is VZ Aware of

a. Natural Objects of Her Bountyb. Nature/Extent of Her Propertyc. Nature of Disposition

ACADIA: REVIEW PROBLEM: 3C (S59):VICTORIA ZAYRES

CAPACITY1.General Evidence of Incapacity?2.Specific Evidence or Qs Going to Traditional Test: Is VZ Aware of

a. Natural Objects of Her Bountyb. Nature/Extent of Her Propertyc. Nature of Disposition

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” (S39): – Specific False Belief Without Reasonable Foundation– Strittmater: “insane delusion about the male” (S59)

Qs on Capacity?

EVERGLADES: REVIEW PROBLEM 3F (S66)

EGRET IN MANGROVE SWAMP

EVERGLADES: REVIEW PROBLEM 3F (S66)

MAJOR TOPICS FOR INQUIRY FROM CHAPTER 3?

EVERGLADES: REVIEW PROBLEM 3F (S66)

MAJOR TOPICS FOR INQUIRY FROM CHAPTER 3

•Intestacy: S probably won’t pay for your work unless she’s better off if will is invalid•Undue Influence: S’s Primary Concern•Capacity: Especially Given Brain Tumor

NOTE: Major Topics Often Good Organizational Scheme for Lawyering

Question