PROPERTY A SLIDES

1. PROPERTY A SLIDES 3-3-15

2. Tuesday March 3 Music: Vivaldi, Four Seasons (1723)Itzhak Perlman, ViolinLondon Philharmonic Orchestra(Recording 1977; Remastered 1987)1978 Grammy Award for Best Classical Performance (Soloist with Orchestra) Lunch Today: Meet on Brix @ 11:55Esmaili * Kim * Sandler

3. Previously in Property A Completion of Chapter 2 (Public Use) Review Problem 2G: Choose & Defend a Rule Chapter 3 (Intestacy & Wills) Intestacy Wills General Introduction & Substantive Limits Formalities Penn. Cases Langbein on Purposes of Formalities Rev Probs 3A & 3B

4. Previously in Property A Chapter 3 Continued: Wills Substantial Compliance as Alternative to Strict Formalities Arguments For & Against Substantial Compliance (Langbein) Application of NJ/UPC Test to Weiss Rev. Prob 3B (Friday  Today) Capacity (Traditional Test & Strittmater) Rev Prob 3C (Today) Rev Prob 3D (Thursday) Undue Influence (Webb; FL & OK Tests) Rev Prob 3B (Today)

5. Previously in Property A Intro to Chapter 4 Overview: Study Hints & Policy Concerns Present Possessory Estates Fee Simple Absolute Finite Estates Term of Years Life Estate Fee Tail Quick Intro to Future Interests that Follow Finite Estates Reversion Remainder

6. SHENANDOAH: Rev. Prob. 3B (Substantial Compliance Cont’d) APPALACHIAN TRAIL

7. Review Problem 3B (Shenandoah) Substantial Compliance • Both Presence Reqmts Not Met • Second Witness Not Present when Testator Signed • Second Witness Not Present when First Witness Signed • 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.

8. Review Problem 3B (Shenandoah):Presence Requirements & Substantial Compliance Possible Purposes of Requirements Include: • Evidentiary Function: All part of single ceremony done w/in reasonable time, so Ws are sure of document. • Protective Function: Maybe presence is evidence to Wseverything’s OK. (Cf. someone rapidly rolls T in and out) • Cautionary Function: T awareness of Ws as part of ceremony, so T can yell stop anytime until Ws have finished signing. Does Video Fulfill Purposes of Requirements ?

9. YELLOWSTONE: Review Problem 3C GIANT GEYSER

10. Yellowstone: Review Problem 3C (S64) • VZ dying of AIDS • About a week before she died, her Dr. brought a lawyer to her. • With Dr. in room, VZ dictated her will to the lawyer. • VZ sometimes mumbled incoherently; Dr. had to translate • Will executed with all proper formalities • "collection of Beatles tapes … I leave to my brother John.“ • Rest of property to Dr.

11. Yellowstone: Review Problem 3C (S64) ISSUES TO DISCUSS IN PROBLEM • “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)

12. Yellowstone: Review Problem 3C (Sxx) 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?

13. Review Problem 3B (S62) (Undue Influence) • Arches = Ps (M’s Relatives) • Kalil, Deanna • Sandler, Ted • Dominguez, Anthony • Alternative: Klein, Alexa • Biscayne = Defendant Jessica • Esmaili, Sawyeh • Duke, Katie • Pecorella, Nicole • Alternative: Kaleel, Jackie

14. Critique of Review Problem 3B (Undue Influence: Yellowstone) • General Instructions @ Bottom of Assignment Sheet • You are critiquing Undue Influence arguments made in class today. (as opposed to other issues in the Problem) • Plaintiff = Arguments will is invalid • Defendant = Arguments will is valid • Written Submission Due by E-Mail Thur 3/5 @ 10 a.m. • E-Mail me if Qs

15. Review Problem 3B (S62) (Undue Influence)Arches = Plaintiffs (M’s Relatives)Biscayne = Defendant Jessica Evidence/Arguments Supporting Undue Influence? Evidence/Arguments Refuting Undue Influence? Stronger Position Overall?

16. LOGISTICS • To Be Posted: First Weekend of Break • Sample Chapter 4 Multiple Choice Qs & (Separately) Answers • Sample Exam Qs 1, 3, 4 & (Separately) Comments/Models • Info Memo on Chapter One (FAQs & Write-Ups of Review Probs) • If you want to do two sample exam answers for comments, first one due Sat 3/14 (instructions on course page) • When to Expect Feedback • Barriers (Housing Exams; Lot of Postings for Chaspters 4 & 5) • Critiques: Before Your Second Critique is Due • Sample Exam Answers: Quickly as I Can (Consistent w Above)

17. WHITEv. BROWNoops!

18. Whitev. Brown (S83-87)Interprets Jessie Lide’s Will I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold. Issue: What Interest in the Home Does This Language Create?

19. REDWOOD: DQ 4.01-4.04 REDWOODS & FERNS

20. Whitev. BrownDQ4.01 White majority says “the free alienation of property [is] one of the most significant incidents of fee ownership.” Why is it significant?

21. Whitev. BrownDQ4.01 White majority says “the free alienation of property [is] one of the most significant incidents of fee ownership.” Significance Includes: • Allows land to move to owner who can make most valuable use of it • Means land is relatively liquid assetmaximizing owner’s control & freedom (can sell or mortgage for $).

22. Whitev. BrownRedwood: DQ4.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. The White majority complains that “the words chosen by the testatrix are not specific enough to clearly state her intent."

23. Whitev. BrownRedwood: DQ4.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. What do you think Jessie Lide’s intent is? Why must house not be sold?

24. Whitev. BrownRedwood: DQ4.02 I wish Evelyn White to have my home to live in and not to be sold. … My house is not to be sold. Why does the majority have problems discerning Jessie Lide’s intent?

25. Whitev. Brown: Possible CharacterizationsI wish Evelyn White to have my home to live in and not to be sold. • Fee Simple • Life Estate • Conditional Fee • So long as not sold • So long as E lives there • Conditional Life Estate

26. Whitev. BrownRedwood: DQ4.03 WHAT ARE THE MAJORITY’S ARGUMENTSTHAT MS. LIDE INTENDED TO CREATE A FEE SIMPLE?

27. Whitev. BrownRedwood: DQ4.03 MAJORITY ARGUMENTS (FEE SIMPLE) • Presumption: Grant Conveys Whole Estate • JL had FSA, so presume she gave FSA to EW • Same idea as “default estate today is fee simple” • No Gift Over (Will describes no interest in home after EW’s death) • Partial Intestacy Disfavored (Try to read will to address all of JL’s property)

28. Whitev. BrownRedwood: DQ4.03 WHAT ARE THE DISSENT’S ARGUMENTSTHAT MS. LIDE INTENDED TO CREATE A LIFE ESTATE?

29. Whitev. BrownRedwood: DQ4.03 DISSENT ARGUMENTS (LIFE ESTATE) • Presumption: All Language Used Has Meaning (same idea re statutes, contracts, etc.) • Language Here Consistent with Life Estate: • Says: “to live in” • Says: “not to be sold” • Contrast Language in Gift to Niece: No Limits (standard construction argument: different language=different meaning)

30. Whitev. BrownRedwood: DQ4.03 I wish Evelyn White to have my home to live in and not to be sold. I also leave my personal property to Sandra White Perry. My house is not to be sold. Whose Arguments Seem Stronger?

31. Whitev. BrownHolds Interest is Fee Simple Absolute • Could you Read Grant as Fee Simple Conditioned on Land Not Being Sold? • No. Restraints on Alienation are Inconsistent with Fee Simple. • Even if Condition Explicit, Court Would Pencil It Out as Against Public Policy. THUS…

32. Whitev. BrownHolds Interest is Fee Simple Absolute Result: The Property Can Be Sold!!!

33. Whitev. BrownRedwood: DQ4.04 Imagination Exercise: Possible Relevant Facts Not in Opinion • Legal Relevance Here: • Both Sides Rely on “Presumptions” • Means Can Use Other Facts to Overcome/Rebut • Important Exam Skill • Big Part of Lawyering Q • Can Use for Short Problems/Issue-Spotter • If Consistent with Rest of Facts • If Relevant to Issues Raised

34. Whitev. BrownRedwood: DQ4.04 Imagination Exercise: Possible Relevant Facts Not in Opinion • To Add Weight to Majority Position (Fee Simple)? • To Add Weight to Dissent Position (Life Estate)?

35. Whitev. BrownWhat Actually Happened? • EW had stroke, moved in w daughter • Probably wants to sell house b/c rental income not much • Significance of case: • If life estate, most of value goes to nieces/nephews • If fee simple (as court held), EW gets money for medical & living expenses

36. Whitev. BrownGrantor’s Intent v. “Channeling” Function • Recurring problem with estates/future interests: laypeople don’t know relevant categories. • Thus, they don’t know how to signal what they wish to future court. • Important roles that lawyers play in helping with wills: • Ask Qs to discern client wishes (“What if Evelyn gets sick?”) • Channelclient desires into language that gives legal effect to those wishes.

37. Whitev. Brown Test Note #1: Test Will Include At Least One Grant (Yielding Multiple Questions) That Could Be Either Fee Simple or Life Estate, So You Need to Know Arguments Distinguishing the Two QUESTIONS?

38. Vested v.ContingentRemainders

39. 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.

40. VESTED REMAINDER • Grantee is living ascertainable person (can presume this if granted to a named individual.)

41. VESTED REMAINDER • Grantee is living ascertainable person AND • Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate.

42. VESTED REMAINDER • Grantee is living ascertainable person AND • Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate Example: To Aaron for life, then to Oona and her heirs.

43. CONTINGENT REMAINDER • Grantee is presently unborn or unascertainable *OR* • Clause creating the remainder contains a condition on grantee taking the property

44. REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s firstborn child.” • Fred has Life Estate • Interest in Child • Follows Life Estate, so it’s a Remainder • If Fred presently has no children, grantee is unborn, so Remainder is Contingent.

45. Suppose Fred has a child, Pebbles…

46. REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s firstborn child.” • Fred has Life Estate • Interest in Child • Follows Life Estate, so it’s a Remainder • Once Fred fathers his first child, grantee is born and ascertainable, so Remainder is now Vested. • Thus, we say that, at the birth of Pebbles, the Contingent Remainder “Vests”

47. REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s oldest child living at Fred’s death.” • Fred has Life Estate • Interest in Child • Follows Life Estate, so it’s a Remainder • Even if F has living children now, can’t know which of the children will be alive at F’s death, so grantee is unascertainable, so Remainder is Contingent .