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  1. PROPERTY E SLIDES 2-28-13

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

  3. EVERGLADES: REVIEW PROBLEM 3F (S66) 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

  4. EVERGLADES: REVIEW PROBLEM 3F (S66) What Happens if A’s Will Invalid? • Factual Research? • Legal Research?

  5. EVERGLADES: REVIEW PROBLEM 3F (S66) UNDUE INFLUENCE • Legal Research? • Statutes/Cases on Undue Influence Generally • Specific Topics You Might Look For? • Factual Research?

  6. EVERGLADES: REVIEW PROBLEM 3F (S66) Capacity • Legal Research on Capacity Generally • Factual Research (in addition to topics relevant to Undue Influence)?

  7. WHITEv. BROWN

  8. Whitev. Brown (S77-81)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?

  9. Whitev. BrownDQ59 (From Lecture Last Time) White majority says“thefree alienation of property [is] one of the most significant incidents of fee ownership.” Why is it significant? • Allows land to move to owner who can make most valuable use of it • Means land is relatively liquid asset (can sell or mortgage for $)

  10. GLACIER: DQ60-62 Glacier Mountain Lion

  11. Whitev. BrownGLACIER: DQ60 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."

  12. Whitev. BrownGLACIER: DQ60 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?

  13. Whitev. BrownGLACIER: DQ60 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?

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

  15. Whitev. BrownGLACIER: DQ61 WHAT ARE THE MAJORITY’S ARGUMENTSTHAT MS. LIDE INTENDED TO CREATE A FEE SIMPLE?

  16. Whitev. BrownGLACIER: DQ61 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)

  17. Whitev. BrownGLACIER: DQ61 WHAT ARE THE DISSENT’S ARGUMENTSTHAT MS. LIDE INTENDED TO CREATE A LIFE ESTATE?

  18. Whitev. BrownGLACIER: DQ61 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

  19. Whitev. BrownGLACIER: DQ61 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?

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

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

  22. Whitev. BrownGLACIER: DQ62 Fact Imagination Exercise: What Facts Not in Opinion Might Be Relevant? • 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

  23. Whitev. BrownGLACIER: DQ62 Fact Imagination Exercise: What Facts Not in Opinion Might Be Relevant? • To Add Weight to Majority Position (Fee Simple)? • To Add Weight to Dissent Position (Life Estate)?

  24. 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

  25. 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 to future court to show what they wish. • Again: Important role that lawyers play in helping with wills is to channel client desires into language that gives legal effect to those wishes.

  26. 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?

  27. Vested v.ContingentRemainders

  28. 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.

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

  30. 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

  31. 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.

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

  33. 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 .

  34. Suppose Fred has a child, Pebbles…

  35. 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”

  36. 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 .

  37. REMAINDERS: EXAMPLES “To Fred for life, then to Wilma and her heirs if Dino survives Fred.” • Fred has Life Estate • Interest in Wilma • Follows Life Estate, so it’s a Remainder • Condition must be met before Wilma can take , so Remainder is Contingent.

  38. Contingent v. Vested Remainders:Memory/Comprehension Aids • Meaning/Derivation of Vested Right • Clearly Established Right that’s Hard to Undo • E.g., “Vested” Employee Benefits • Derivation: Putting on Robes of Office • Analogy: • Vested Remainder Theater Ticket • Contingent Remainder  Lottery Ticket

  39. Life Estate + Vested Remainder To Fred for Life, then to Wilma and her heirs.

  40. Life Estate + Contingent Remainder Barney “to Fred for Life,then to Wilma and her heirs if Dino survives Fred.” I’ll Show Contingency by Drawing Dotted Line Off Primary Time Line

  41. Life Estate + Contingent Remainder Barney “to Fred for Life,then to Wilma and her heirs if Dino survives Fred.” What happens to property when Fred dies if Dino doesn’t survive Fred? Someone must get it!

  42. Life Estate + Contingent Remainder Barney “to Fred for Life, then to Wilma and her heirs if Dino survives Fred.” What happens to property when Fred dies if Dino doesn’t survive Fred? If grant doesn’t distribute some of the available rights, then those rights are retained by the grantor.

  43. Life Estate + Contingent Remainder Barney “to Fred for Lifethen to Wilma and her heirs if Dino survives Fred.” Barney retains a reversion. HINT: If there’s a contingent remainder, the grantor always retains a reversion.

  44. REMAINDERS “IN …” : • “To Fred for life, then to Wilma for life.”Wilma has a vested remainderin life estate • “To Fred for life, then to Wilma and her heirs if Dino survives Fred. Wilma has a contingent remainderin fee simple absolute

  45. TERMINOLOGY: ME v. WORKBOOK • Workbook: Adds language to define nature of future interests in grantor. E.g., • Reversion in Fee Simple Absolute • Possibility of Reverter in Fee Simple Absolute

  46. TERMINOLOGY: ME v. WORKBOOK • Workbook: Adds language to define nature of future interests in grantor. E.g., • Reversion in Fee Simple Absolute • Poss. Of Reverter in Fee Simple Absolute • My Test Questions: Only will add this sort of language for remainders

  47. TERMINOLOGY: ME v. WORKBOOK • Workbook: Describes all present possessory estates (Fee Simple Absolute, Life Estate, etc.) as a “Possessory Estate in …”

  48. TERMINOLOGY: ME v. WORKBOOK • Workbook: Describes all present possessory estates (Fee Simple Absolute, Life Estate, etc.) as a “Possessory Estate in …” • My Test Questions: Will not use the italicized phrase.

  49. TERMINOLOGY: ME v. WORKBOOK • Workbook: Describes all present possessory estates (Fee Simple Absolute, Life Estate, etc.) as a “Possessory Estate in …” • Maybe there to help you remember important rule: You can have only one present possessory estate at any given time with respect to a particular parcel of land.

  50. OLYMPIC: Problems 4A-4F SUNSET IN THE PARK