PROPERTY D SLIDES

1. PROPERTY D SLIDES 2-27-14

2. Thursday Feb 27 Music: Cistercian Monks of StiftHeiligenkreuz, Chant Lunch Today: Meet on Brix @ 12:25 Ciampittiello; Lipschultz; Martinez; Rasile; Sigurani; Tarafa Biscayne Reminder: Critique of Rev. Prob. 3B Due Today @ 10am

3. Present Possessory Estates

4. FEE SIMPLE ABSOLUTE

5. 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

6. FEE SIMPLE ABSOLUTE CREATION (today or at common law): Lloyd grants Redacre “to Mimi and her heirs.”

7. FEE SIMPLE ABSOLUTE Lloyd grants Redacre “to Mimiand her heirs.” WORDS OF PURCHASE: Who Gets the Estate?

8. FEE SIMPLE ABSOLUTE Lloyd grants Redacre “to Mimiand her heirs.” WORDS OF PURCHASE: Who Gets the Estate? WORDS OF LIMITATION: What Estate Do They Get?

9. FINITE ESTATES TERM OF YEARS FEE TAIL LIFE ESTATE

10. 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

11. 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

12. 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:

13. Fee Simple Absolute v. Life Estate • Right to possess and use forever • Right to possess and use only for lifetime of original grantee

14. 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)

15. 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?

16. 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.

17. Fee Simple Absolute v. Life Estate • Right to possess and use forever • Right to transfer all present and future rights (inheritable & devisable) • Right to liquidate assets • 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)

18. Fee Simple Absolute v. Life Estate • Right to possess and use forever • Right to transfer all present and future rights (inheritable & devisable) • Right to liquidate assets • Default Estate Today • 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) • Default Estate at Common Law

19. DEFAULT ESTATE (“To Bill.”)What does Bill get if not specified (no words of limitation)? • Common Law: Default was Life Estate Bill gets Life Estate Grantor keeps Reversion

20. DEFAULT ESTATE (“To Bill.”)What does Bill get if not specified (no words of limitation)? • Common Law: Default was Life Estate Bill gets Life Estate; Grantor keeps Reversion • Today: Default is Fee Simple • Bill gets Fee Simple Absolute • Grantor keeps nothing

21. 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”

22. VOCABULARY: ISSUE v. HEIRS • “Issue” = Direct (= “Lineal”) Descendants (Children, Grandchildren, etc.)

23. VOCABULARY: ISSUE v. HEIRS • “Issue” = Direct Descendants • “Heirs” = People who inherit your property at the time ofyour death under the relevant Intestacy Statute

24. 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).

25. 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”

26. 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

27. 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)

29. 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.

30. Future Interests that Follow Finite Estates

31. FUTURE INTERESTS THAT FOLLOW FINITE ESTATES • REVERSION • REMAINDER

32. FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REVERSION Future interest retained by grantor when s/he conveys a finite estate without indicating who will have rights when it expires.

33. Fun with Scissors

34. FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REVERSION 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.

35. 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.

36. 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. E.g.: Fifi conveys Tanacre “To Gigi for life, then to J.J. and his heirs” J.J. has a remainder. Fifi retains nothing.

37. More on Remainders Next TimeQUESTIONS?

38. LOGISTICS: NOW ON COURSE PAGE • Instructions/Info on Chapter 4 Test • In Chapter 4 Supplement: Page S80 Replaced • Info Memo #2 re Chapter 1 (eyeball briefly): • Exam Coverage Overview • Relevant Old Exam Questions • Student Qs & My Responses • Write-Ups of Selected DQs • Review Problems: Comments & Best Answers

39. REDWOOD: Rev. Prob. 3B2 (Critique) REDWOODS & FERNS

40. Critique of Review Problem 3B2 (Redwood) • For General Instructions See Info Memo #1 @ IM10 • You are critiquing arguments made in class today. • Plaintiff = Arguments will is invalid • Defendant = Arguments will is valid • Written Submission Due by E-Mail Saturday 3/1 @ 4 p.m. • Note You Get a Few Extra Hours b/c Saturday • Please Label as “Review Problem 3B2” • E-Mail me if Qs

41. ARCHES: Review Problem 3B2 DELICATE ARCHES

42. Review Problem 3B2 (S59) (Arches) Evidence/Arguments Supporting Undue Influence? Evidence/Arguments Refuting Undue Influence? Stronger Position Overall?

43. 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”)

44. Closing Up Capacity & Undue InfluenceCultural 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

45. Closing Up Capacity & Undue InfluenceWorking 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 • McKenzie Q re Blind Testators: Similar to Minimize Fraud Challenges • If litigating, craft presentation of story to take into account likely biases of courts

46. Important Concern from 2013 Student re Clients Being Harmed by Lawyer Incompetence Closing Up Capacity & Undue InfluenceWorking 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

47. BISCAYNE: Rev. Prob. 3F SUNRISE AT ADAMS KEY

48. Review Problem 3F (S76) (Biscayne) Part of Lawyering Question • Dentist Shelly Asks re Great Aunt’s Abbigail’s Will • A (76) died of brain tumor; A’s personal trainer, Matt (37) left his job to care for A when she became ill. • Under Will (must assume proper formalities) • M gets “most” of A’s “sizable estate” • S gets A’s house, which includes space for medical/dental practice

49. Review Problem 3F (S76) (Biscayne) MAJOR TOPICS FOR INQUIRY?

50. Review Problem 3F (S76) (Biscayne) MAJOR TOPICS FOR INQUIRY • Capacity (given brain tumor) • Undue Influence (most likely claim) • Effect of Invalidity of Will (necessary!)