PROPERTY D SLIDES

1. PROPERTY D SLIDES 2-25-14

2. Tuesday Feb 25 Music: Bette Midler: Experience the Divine (1993) Office Hours Cancelled Today E-Mail if Qs

3. SHENANDOAH (Review Problem 3C) APPALACHIAN TRAIL

4. Shenandoah: Review Problem 3C (S69) What is a“Hemophiliac”? Why is Character Called Victoria Zayres?

5. REVIEW PROBLEM 3C: Victoria Zayres Queen Victoria’s Heirs & Hemophilia

6. Shenandoah: Review Problem 3C (S69) ISSUES TO DISCUSS • NOTE: “All Proper Formalities” = Formalities Issues Off Table • Undue Influence by Dr. (For You) • Fraud (Simple Point): If Can Prove Dr. Deliberately Mistranslated VZ’s Mumbles • Capacity (Now)

7. Shenandoah: Review Problem 3C (S69) Traditional Test: Is VZ Aware of … • Natural Objects of Her Bounty: Evidence/Qs Here? • Nature/Extent of Her Property: Evidence/Qs Here? • Nature of Disposition: Evidence/Qs Here? Other General Evidence/Qs re [In]Capacity?

8. 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

9. 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?

10. YELLOWSTONE (DQ3.13-3.14) GIANT GEYSER

11. Undue Influence: DQ3.13 (Yellowstone) OKLAHOMA STATUTE (S72 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.

12. Undue Influence: DQ3.13 (Yellowstone) FLORIDA DEFINITION (S49) • "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.”

13. 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

14. Undue Influence: DQ3.14 (Yellowstone) Evidence in Webb • NOTE: Trial Court found Undue Influence; Should be Deference to Findings • Evidence supporting Undue Influence? • Why did court reject?

15. BISCAYNE: Rev. Prob. 3B1 (Critique) SUNRISE AT ADAMS KEY

16. Critique of Review Problem 3B1 (Biscayne) • For General Instructions See Info Memo #1 @ IM10 • Plaintiff = Arguments will is invalid • Defendant = Arguments will is valid • Primary Focus Substantial Compliance • Written Submission Due by E-Mail Thursday 2/27 @ 10 a.m. • Please Label as “Review Problem 3B1” • E-Mail me if Qs

17. REDWOOD: Review Problem 3B1 REDWOODS & FERNS

18. Review Problem 3B1 (Redwood) Formalities Issues Here?

19. Review Problem 3B1 (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?

20. Review Problem 3B1 (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)

21. Review Problem 3B1 (Redwood) 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

22. CHAPTER 4:The Shadow of the Past

23. HOLD QUESTIONSUNTILEND OF INTRODUCTION TOMORROW

24. Approaching Chapter 4

25. Approaching Chapter 4: Vocabulary

26. Approaching Chapter 4: Vocabulary LEARN THEIR NAMES BUTCH SPOT

27. 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

28. 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 (Thursday)

29. Approaching Chapter 4: Policy Concerns • Grantor’s Intent v. • Channeling Function

30. Approaching Chapter 4: Policy Concerns • Grantor’s Intent v. • Channeling Function • Dead Hand Control

31. Approaching Chapter 4: Policy Concerns • Grantor’s Intent v. • Channeling Function • Dead Hand Control • Alienability

32. Approaching Chapter 4: Relevant Time Frames • “At Common Law”: Dates prior to modern streamlining of the rules. (e.g., 1600-1800)

33. 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)

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

35. Approaching Chapter 4: Relevant Time Frames In Multiple Choice Qs, I Will Do One of the Following: • Explicitly Say “At Common Law” • Provide a Date After 1950 (Clearly Means “Today”) • Provide a Fact That Clearly Means “Today” (e.g., cell phone; computer) • Give no Info in Q, but Some of the Answer Choices will Indicate “Common Law” or “Today”

36. Present Possessory Estates

37. PRESENT POSSESSORY ESTATES • Present v. Future (Tenant v. Landlord)

38. PRESENT POSSESSORY ESTATES • Present v. Future • Possessory v. Non-Possessory: (Tenant v. Trust Beneficiary)

39. FEE SIMPLE ABSOLUTE

40. FEE SIMPLE ABSOLUTE • “Simple”= can go on forever (to distinguish from “Fee Tail”)

41. 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.)

42. 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