PROPERTY D SLIDES

1. PROPERTY D SLIDES 2-24-14

2. Monday Feb 24 Music: Retrospective Hits of 1947

3. PROPERTY D: 2/17 Monday Pop Culture Moment The Most Performed Waltz in American Popular Music

4. Previously in Property D “Public Use” as a Limit on Eminent Domain Alternate Approaches: Kelo: Thomas Dissent & Merrill Review Problem 2C: Application of Kelo Review Problem 2G: Choose & Defend a Rule

5. Previously in Property D “Intestacy &Wills Intestacy General Introduction Problems Using Sample Statutes Wills General Introduction & Substantive Limits Formalitiesincluding Penn. Cases

6. GOING FORWARD • Chapter 4 (Intro Tuesday  Thursday) • The Workbook • Test: Monday March 24 • Planning Your March/April Workload

7. BISCAYNE: Rev. Prob. 3A SUNRISE AT ADAMS KEY

8. Review Problem 3A (Biscayne):Interested Witnesses Possible Claim: Hospital is Beneficiary, Nurses & Chief of Staff Work for Hospital • What is an “Interested Witness”? • Purpose of Limiting Role of Interested Ws? • Arguments re Ws Here Fitting Purpose? • Nurses? • Chief of Staff? • Suppose Court finds Chief interested. What Possible Results?

9. Review Problem 3A (Biscayne):Interested Witnesses Possible Results if Chief of Staff = Interested W • Fl? No Problem (See 732.504(2)) • Cal (& Others): Presumption of fraud or undue influence • Most other states invalidate gift to interested W • Some: Unless enough uninterested Ws. Here? • Some: Unless W would get more if no will. Here?

10. Review Problem 3A (Biscayne):Interested Witnesses Possible Results if Chief of Staff = Interested W • Fl? No Problem (See 732.504(2)) • Cal (& Others): Presumption of fraud or undue influence • Most other states invalidate gift to interested W • Some: Unless enough uninterested Ws. • Here, OK if state only requires 2 witnesses • Some: Unless W would get more if no will. • Here, OK b/c neither hospital nor Chief of Staff would take under Intestacy if will invalid.

11. Review Problem 3A (Biscayne):Presence Requirement & Sleeping Testator Many States: Ws must sign “in presence of Testator” • Literal Arguments • Would test be met if T died before W’s finished signing? • Is sleeping different than death here? Why or Why Not? • Purpose Arguments • Possible purposes of rule? • Might think in terms of Langbeinrationales for formalities

12. Review Problem 3A (Biscayne):Presence Requirement & Sleeping Testator Possible Purposes of Rule Include: • Evidentiary Function: All part of single ceremony done w/in reasonable time, so Ws are sure of document. • Here? • Protective Function: Maybe presence is evidence to Wseverything’s OK. (Cf. someone rapidly rolls T in and out) • Here? • Cautionary Function: T awareness of Ws as part of ceremony, so T can yell stop anytime until Ws have finished signing. • Here?

13. Review Problem 3A (Biscayne):Presence Requirement & Sleeping Testator Possible Purposes of Rule Include: • Evidentiary Function: All part of single ceremony done w/in reasonable time, so Ws are sure of document. • Would be OK Here • Protective Function: Maybe presence is evidence to Wseverything’s OK. (Cf. someone rapidly rolls T in and out) • Unclear here; may be evidence of severe health issues • Cautionary Function: T awareness of Ws as part of ceremony, so T can yell stop anytime until Ws have finished signing. • If so, maybe T has to be awake until end

14. Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death • General Introduction • Intestate Succession • Generally • Working with Specific State Statutes • Wills • Generally • Will Formalities • Substantial Compliance • State of Mind Requirements

15. Substantial Compliance: Overview • Langbein: Will should be valid if substantially complies w formalities • Supports with reference to purposes of formalities • His view adopted by Uniform Probate Code, NJ, some other states. • Underlying Problem: Conflict between Intent & Evidence: • Strict safeguards, which ensure really good evidence, sometimes invalidate genuine expressions of T’s intent. • Weiss= Example of common problem; will invalid b/c formality not met; seems to defeat intent • Conflict arises b/c of two kinds of concerns: 1. Want to be sure “Will” is what T wrote (not forged, replaced or altered) 2. Want to be sure T understood document in Q to be a Will

16. Substantial Compliance:Purposes of Formalities Want to be Sure “Will” is What T Wrote • Evidentiary Function: Provide evidence that document is really the will • Protective Function (overlaps): Protects against fraud, forgery, duress

17. Substantial Compliance:Purposes of Formalities Want to be Sure T Understood Document to be a Will • Part of more general problem of communication between humans: sorting vague from concrete • Cautionary Function (“Whoa, Dude” Effect) • Channeling Function: Channel intent into legally recognizable form.

18. ARCHES: DQ 3.09-3.10 DELICATE ARCHES

19. Substantial Compliance: (DQ3.09) DQ3.09: Substantial Compliance: Arguments Pro & Con • I’ll leave for you • Review Problem 3E • Opinion/dissent Q about whether a state should adopt “substantial compliance”; • Can use to work through both sides of this issue. • I’ll give you note on rules v. standards in Info Memo

20. Substantial Compliance: Legal Test (DQ3.10) • Langbein: Don’t need all formalities where circumstances suggest: • Reasonable certainty that T intended the document to be will • Reasonable certainty that there has been no fraud, forgery, alteration, replacement • NJ/UPC Test: Proponent of will must show … • “… by clear and convincing evidence… • … that the will substantially complies with the statutory requirements.”

21. Substantial Compliance: Legal Test (DQ3.10) • NJ/UPC Test: Proponent of will must show … • “… by clear and convincing evidence… • … that the will substantially complies with the statutory requirements.” Burdens of Proof • Beyond a Reasonable Doubt (criminal) (95+% certainty) • Preponderance of the Evidence (ordinary civil) (51% certainty)

22. Substantial Compliance: Legal Test (DQ3.10) • NJ/UPC Test: Proponent of will must show … • “… by clear and convincing evidence… • … that the will substantially complies with the statutory requirements.” Burdens of Proof • Beyond a Reasonable Doubt (criminal) (95+% certainty) • Clear & Convincing Evidence (65-75%(?) certainty) • Used, e.g., for fraud and for adverse possession • Preponderance of the Evidence (ordinary civil) (51% certainty)

23. Substantial Compliance: Legal Test DQ3.10: Arches • NJ/UPC Test: Proponent of will must show … • “… by clear and convincing evidence… • … that the will substantially complies with the statutory requirements.” Is this a sensible way to handle Langbein’s concerns? What result if you apply this test to the facts of Weiss?

24. Review Problem 3B: Two Parts • Tomorrow: Formalities Issues & Substantial Compliance • Redwood (& Biscayne Critique) • Thursday: Undue Influence • Arches (& Redwood Critique) • For BOTH Critiques: • Plaintiff = Arguments will is invalid • Defendant = Arguments will is valid • Problem says “The Will Was Admitted to Probate.” Means?

25. Review Problem 3B: Two Parts • Problem says “The Will Was Admitted to Probate” Means: • No problems visible on the face of the will, e.g., • # of witnesses sufficient • Signed and in the right location • Does not give you info on other problems , e.g., • Presence requirements might not be met • Witnesses might not be old enough

26. 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

27. SHENANDOAH (DQ3.11-3.12) APPALACHIAN TRAIL

28. Capacity Generally (DQ3.11: Shenandoah) • Normally we protect insane people by not allowing them to enter contracts. • Concern re wasting assets • Concern re leaving self or dependents destitute Why not allow them to draft wills if no dependents? (After death, no need to take care of themselves)

29. Strittmater & DQ3.12: Shenandoah Evidence Going to Strittmater’s Capacity (Jury Argument) • Evidence Supporting “No Sound Mind”?

30. Strittmater & DQ3.12: Shenandoah 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 • Evidence Supporting “Sound Mind”?

31. Strittmater & DQ3.12: Shenandoah 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)

32. Strittmater & DQ3.12: Shenandoah Traditional Test: Was T Aware of … • Natural Objects of Her Bounty: • What Are Generally? Here? • Nature/Extent of Her Property: What she had • Nature of Disposition: What she was doing with it Any Evidence Test Not Met Here?

33. 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” (S49): • Specific False Belief Without Reasonable Foundation • Strittmater: “insane delusion about the male” (S69)

34. Strittmater & DQ3.12: Shenandoah Can you imagine a story (other than the one the court accepts) that might explain her behavior?