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