1. PROPERTY A SLIDES 2-27-15

2. CHANT Friday Feb 27 Music: Cistercian Monks of Stift Heiligenkreuz CHANT

3. PROPERTY A: 2/27

4. GOVERNOR SWAP Have you ever wondered whether the grass is greener in a different state? Two governors, one from a red state and one from a blue state, discover that it often isn't when they hand over the keys to their offices and literally switch administrations for two weeks.

5. SERENGETI DANCE MOMS of the SERENGETI Follow young tribal dancers’ early steps on the road to stardom with their doting mothers in tow for every rehearsal, performance and bow …

6. SERENGETI DANCE MOMS of the SERENGETI Follow young tribal dancers’ early steps on the road to stardom with their doting mothers in tow for every rehearsal, performance and bow … all while dodging crocodiles and hippos at the water hole next to their studio.

7. BUSH DYNASTY The Story of the Family that (Sometimes) Runs the USA This Week: Can Jeb Still Get the Cool Job in Washington After His Kid Brother Got There First?

8. Survivor Chef Antarctica Contestants prepare gourmet dishes with penguins, seals, and killer whales they have to catch themselves. Featuring Padma Lakshmi & Shaun White Featuring Padma Lakshmi & Shaun White

9. Top Model Under the Guns From Caracas to Kabul to Kiev, Our Aspiring Models Bring Fashion to the World’s War Zones Who Will Be Eliminated Tonight? “Take Cover, Girl!!!” Tyra BanksAnderson Cooper

10. Pop Culture Update Me on 3/3/14: Top Model Under the Guns From Caracas to Kabul to Kiev, Our Aspiring Models Bring Fashion to the World’s War Zones Miami Herald on 3/9/14: Miami Company Takes Golfers Into Danger Zones You can play golf in Kabul on Afghanistan’s only course, protected by a professional security team --

11. You Can’t Make This Stuff Up Miami Herald on 3/9/14: Miami Company Takes Golfers Into Danger Zones You can play golf in Kabul on Afghanistan’s only course, protected by a professional security team for only $40,000 to $80,000 for a five-day excursion.

12. CHAPTER 4: The Shadow of the Past

13. HOLD QUESTIONS FOR TODAY

14. Approaching Chapter 4

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

16. Approaching Chapter 4: Vocabulary

17. 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

18. 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 (Tuesday)

19. Approaching Chapter 4: Policy Concerns Grantor’s Intent v. – Channeling Function

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

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

22. Approaching Chapter 4: How You’ll Be Tested 24 Question Multiple Choice Test (70 Minutes) Closed Book, But Syllabus Attached Approximately 1/6 of Final Grade Sample Qs with Answers/Explanations – I’ll Make Many Available & Reuse Some – Posted After We’ve Done Substance

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

24. 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)

25. 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.

26. Approaching Chapter 4: Relevant 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”

27. Present Possessory Estates

28. PRESENT POSSESSORY ESTATES Present v. Future (Tenant v. Landlord)

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

30. FEE SIMPLE ABSOLUTE

31. “Simple”= can go on forever (to distinguish from “Fee Tail”)

32. 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.)

33. 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

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

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

36. 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?

37. FINITE ESTATES TERM OF YEARS FEE TAIL LIFE ESTATE

38. 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

39. 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

40. 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:

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

42. 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)

43. 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?

44. 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.

45. 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)

46. 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

47. 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

48. 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

49. 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”

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

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

52. 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).

53. 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”

54. 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

55. 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)

57. 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.

58. Future Interests that Follow Finite Estates

59. FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REVERSION REMAINDER

60. 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.

61. Fun with Scissors

62. 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.

63. 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.

64. FUTURE INTERESTS THAT FOLLOW FINITE ESTATESREMAINDER 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. Lots More on Remainders Next Week

65. 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 (continued) Undue Influence

66. Capacity Generally (DQ3.05: Biscayne) Why not allow them to draft wills if no dependents? (After death, no need to take care of themselves) All jurisdictions invalidate if non-capacity proved All jurisdictions invalidate if non-capacity proved BUT if capacity proved, can do any crazy stuff you want (if no spouse/minor children) BUT if incapacity proved, we invalidate will even if sensible

67. Strittmater & DQ3.06: Biscayne Evidence Going to Strittmater’s Capacity (Jury Argument) Evidence Supporting “No Sound Mind” includes: MD testimony: symptoms of split personality “Happy childhood,” then turning on parents Great aversion to men Ominous Incidents: smashing clock; killing kitten

68. Strittmater & DQ3.06: Biscayne Evidence Going to Strittmater’s Capacity (Jury Argument) Evidence Supporting “Sound Mind” includes: Behavior with lawyer & bank Beneficiary was org. she belonged to/volunteered for (so logical to support in will) Not close to nearest relative MD who testified was GP (not psych expert) Note Problem re “happy childhood”: According to who?

69. Strittmater & DQ3.06: Biscayne Traditional Test: Was T Aware of … a.Natural Objects of Her Bounty: What Are Generally? Here? b.Nature/Extent of Her Property: What she had c.Nature of Disposition: What she was doing with it Any Evidence Test Not Met Here?

70. 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” – Specific False Belief Without Reasonable Foundation – Strittmater: “insane delusion about the male”

71. Strittmater & DQ3.06: Biscayne Can you imagine a story (other than the one the court accepts) that might explain her behavior?

72. Tuesday: Review Problem 3C (Yellowstone) General Evidence Suggesting Incapacity Application of Traditional Three-Part Test Background Qs: What is a“Hemophiliac”? Why is Character with Hemophilia Called Victoria Zayres?

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

74. Thursday: Review Problem 3D & Capacity (Two-Sided Argument w Critique) LOTS OF EVIDENCE TO PLAY WITH General Evidence Suggesting Incapacity Application of Traditional Three-Part Test

75. 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 State of Mind Requirements Capacity Undue Influence Undue Influence

76. 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?

77. Undue Influence: DQ3.07 (Biscayne) OKLAHOMA STATUTE (S68 fn4) Undue influence consists: 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.

78. Undue Influence: DQ3.07 (Biscayne) FLORIDA DEFINITION "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.”

79. 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

80. Undue Influence: DQ3.08 (Biscayne) Evidence in Webb NOTE: Trial Court found Undue Influence; Should be Deference to Findings Fair Amount of Evidence Supporting Undue Influence Even More Supporting Court’s Rejection

81. supporting Undue Influence: DQ3.08 (Biscayne) Evidence in Webb supporting Undue Influence? DH not family member Ages 46/85 when met While alive, CW gave $/car/land to DH DH gets about 260K worth of property in will DH drove CWto write will CW very old; possibly weakened by pending illness

82. refuting Undue Influence: DQ3.08 (Biscayne) Evidence in Webb refuting Undue Influence? Evidence CW’s Free Agency Not Destroyed: L ot of evidence she was strong-willed Story: Ct sees CW as educated strong woman, never married … as opposed to helpless widow or “lil ol lady” Dr says CW alert & oriented two months after will Court says it Fails to See Anything DH Did or Could Have Done Anything to Overcome Her Free Agency DH little education himself Court doesn’t say explicitly, but no evidence DH was good-looking or flirting; no evidence of anything romantic or sexual D didn’t participate in the drafting of the will

83. refuting Undue Influence: DQ3.08 (Biscayne) Evidence in Webb refuting Undue Influence? Evidence CW’s Free Agency Not Destroyed Distribution of Gifts Reasonable in Context CW spent $$ b/c she suddenly had it DH driving car gave CW freedom Kindness/gratitude ok Gift outside family not unnatural, no kids, not close to other relatives Actual Distribution in Will Included … Only 1/3 of total to DH Lot of gifts to others & to charities (including $10K to evil niece)

84. refuting Undue Influence: DQ3.08 (Biscayne) Evidence in Webb refuting Undue Influence? Evidence CW’s Free Agency Not Destroyed Distribution of Gifts Reasonable in Context Timing Inconsistent with Story re DH as Gold-Digger Friendship betw. CW & DH precedes inheritance by 4+ yrs DH couldn’t count on her outliving rich brother 16Y younger Nobody knew CW was sick when will drafted

85. 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”)

86. Closing Up Capacity & Undue Influence Cultural 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

87. Closing Up Capacity & Undue Influence Working 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 2014 Q re Blind Testators: Similar to Minimize Fraud Challenges If litigating, craft presentation of story to take into account likely biases of courts

88. Closing Up Capacity & Undue Influence Working 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 Important Concern from 2013 Student re Clients Being Harmed by Lawyer Incompetence

89. REDWOOD: Rev. Prob. 3B (Formalities) REDWOODS & FERNS

90. Review Problem 3B (Redwood) Formalities Issues Here?

91. Review Problem 3B (Redwood) Presence Reqmts & 2d Witness 1 st 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?

92. Review Problem 3B (Redwood) Presence Reqmts & 2d Witness 1 st 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)

93. SHENANDOAH: Rev. Prob. 3B (Substantial Compliance) APPALACHIAN TRAIL

94. Review Problem 3B (Shenandoah) Substantial Compliance Assume Both Presence Reqmts Not Met 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. 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: Arguments Should Consider: Purposes of Presence Reqmts Purposes of Presence Reqmts Video might or might not be found and/or be admissible Video might or might not be found and/or be admissible