1. PROPERTY E SLIDES 2-26-13

2. CHAPTER 4: The Shadow of the Past

3. HOLD QUESTIONS UNTIL END OF LECTURE

4. Approaching Chapter 4

5. Approaching Chapter 4: Vocabulary

6. SPOT BUTCH LEARN THEIR NAMES

7. 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

8. 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)

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

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

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

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

13. 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)

14. 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.

15. 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”

16. Present Possessory Estates

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

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

19. FEE SIMPLE ABSOLUTE

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

21. 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.)

22. 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

23. CREATION: Lloyd grants Redacre “to Mimi and her heirs.”

24. FEE SIMPLE ABSOLUTE Lloyd grants Redacre “to Mimi and her heirs.” WORDS OF PURCHASE: WHO GETS THE ESTATE?

25. 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?

26. FINITE ESTATES TERM OF YEARS FEE TAIL LIFE ESTATE

27. FINITE ESTATES TERM OF YEARS: “TO ANN FOR 10 YEARS” FEE TAIL LIFE ESTATE

28. 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

29. FINITE ESTATES TERM OF YEARS: TO ANN FOR 10 YEARS FEE TAIL: “TO CAL & THE HEIRS OF HIS BODY” LIFE ESTATE:

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

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

32. 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).

33. FINITE ESTATES TERM OF YEARS: TO ANN FOR 10 YEARS FEE TAIL: TO CAL & THE HEIRS OF HIS BODY LIFE ESTATE:

34. 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

35. 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”

37. 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.

38. 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”

39. 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

40. Right to possess and use only for lifetime of original grantee LIFE ESTATE

41. 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

42. 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?

43. 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.

44. 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

45. 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

46. DEFAULT ESTATE (“To Bill.”) What does Bill get if not specified? Common Law: Default was Life Estate Bill gets Life Estate Grantor keeps Reversion

47. DEFAULT ESTATE (“To Bill.”) What does Bill get if not specified? 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

48. Future Interests that Follow Finite Estates

49. FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REVERSION REMAINDER

50. 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.

51. 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.

52. 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.

53. 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.

54. More on Remainders Next Time QUESTIONS?

55. DENALI: Review Problem 3B (S49): UNDUE INFLUENCE Denali Caribou

56. 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?

57. 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?

58. 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

59. 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

60. ACADIA: REVIEW PROBLEM: 3C (S59): VICTORIA ZAYRES Acadia Sunrise

61. ACADIA: REVIEW PROBLEM: 3C (S59): Victoria Zayres Queen Victoria’s Heirs & Hemophilia

62. 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

63. ACADIA: REVIEW PROBLEM: 3C (S59): VICTORIA ZAYRES CAPACITY 1.General Evidence of Incapacity? 2.Specific Evidence or Qs Going to Traditional Test: Is VZ Aware of a.Natural Objects of Her Bounty b.Nature/Extent of Her Property c.Nature of Disposition

64. ACADIA: REVIEW PROBLEM: 3C (S59): VICTORIA ZAYRES CAPACITY 1.General Evidence of Incapacity? 2.Specific Evidence or Qs Going to Traditional Test: Is VZ Aware of a.Natural Objects of Her Bounty b.Nature/Extent of Her Property c.Nature of Disposition

65. 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?

66. EVERGLADES: REVIEW PROBLEM 3F (S66) EGRET IN MANGROVE SWAMP

67. EVERGLADES: REVIEW PROBLEM 3F (S66) MAJOR TOPICS FOR INQUIRY FROM CHAPTER 3?

68. 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