property d slides 2-25-14. tuesday feb 25 music: bette midler: experience the divine (1993) office...

PROPERTY D SLIDES2-25-14

Tuesday Feb 25 Music: Bette Midler:

Experience the Divine (1993)

Office Hours Cancelled Today

E-Mail if Qs

SHENANDOAH (Review Problem 3C)

APPALACHIAN TRAIL

Shenandoah: Review Problem 3C (S69)

What is a“Hemophiliac”?

Why is Character Called Victoria Zayres?

REVIEW PROBLEM 3C: Victoria Zayres

Queen Victoria’s Heirs &

Hemophilia

Shenandoah: Review Problem 3C (S69)

ISSUES TO DISCUSS•NOTE: “All Proper Formalities” = Formalities Issues Off Table•Undue Influence by Dr. (For You)•Fraud (Simple Point): If Can Prove Dr. Deliberately Mistranslated VZ’s Mumbles•Capacity (Now)

Shenandoah: Review Problem 3C (S69)

Traditional Test: Is VZ Aware of …

a. Natural Objects of Her Bounty: Evidence/Qs Here?

b. Nature/Extent of Her Property: Evidence/Qs Here?

c. Nature of Disposition: Evidence/Qs Here?

Other General Evidence/Qs re [In]Capacity?

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

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?

YELLOWSTONE (DQ3.13-3.14)

GIANT GEYSER

Undue Influence: DQ3.13 (Yellowstone)

OKLAHOMA STATUTE (S72 fn4)OKLAHOMA STATUTE (S72 fn4)•Undue influence consists:Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another, or 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 who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over or authority for the purpose of obtaining an unfair advantage over him.him.2. In taking an unfair advantage of another's weakness of mind; or,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 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress.necessities or distress.

Undue Influence: DQ3.13 (Yellowstone)

FLORIDA DEFINITION (S49)FLORIDA DEFINITION (S49)•"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.”

Undue Influence: Estate of WebbA. Testatrix, Executrix, Aviatrix, DominatrixB. Amazing life of Testatrix Clara Webb:

1. Teaching in Cement, retires to Amber; 2. Outlives brother Wallace (source of heirs at law) by 50 yrs3. 25 yr retirement; relatively rich for < 9 months

C. Beneficiary: Donnavin Higgins1. Bulldozer + violin (not fiddle!!)2. Bankruptcy & Divorce after he met Clara

Undue Influence: DQ3.14 (Yellowstone)

Evidence in Webb

•NOTE: Trial Court found Undue Influence; Should be Deference to Findings

•Evidence supporting Undue Influence?

•Why did court reject?

BISCAYNE: Rev. Prob. 3B1 (Critique)

SUNRISE AT ADAMS KEY

Critique of Review Problem 3B1 (Biscayne)

• For General Instructions See Info Memo #1 For General Instructions See Info Memo #1 @ IM10@ IM10• Plaintiff = Arguments will is invalidPlaintiff = Arguments will is invalid

• Defendant = Arguments will is validDefendant = Arguments will is valid

• Primary Focus Substantial CompliancePrimary Focus Substantial Compliance• Written Submission Due by E-Mail Thursday 2/27 Written Submission Due by E-Mail Thursday 2/27 @ 10 a.m. @ 10 a.m. • Please Label as “Review Problem 3B1”Please Label as “Review Problem 3B1”

• E-Mail me if QsE-Mail me if Qs

REDWOOD: Review Problem 3B1

REDWOODS & FERNS

Review Problem 3B1 (Redwood)

Formalities Issues Here?

Review Problem 3B1 (Redwood)

Presence Reqmts & 2d Witness•1st 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?

Review Problem 3B1 (Redwood)

Presence Reqmts & 2d Witness•1st 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)

Review Problem 3B1 (Redwood)

Substantial Compliance•Assume Both Presence Reqmts Not MetAssume Both Presence Reqmts Not Met

•Apply Test (Some States): [W]hen formal defects Apply Test (Some States): [W]hen formal defects occur, proponents [must] prove by clear and occur, proponents [must] prove by clear and convincing evidence that the will substantially convincing evidence that the will substantially complies with the statutory requirements.complies with the statutory requirements.

•Arguments Should Consider:Arguments Should Consider:• Purposes of Presence ReqmtsPurposes of Presence Reqmts

• Video might or might not be found and/or be Video might or might not be found and/or be admissibleadmissible

CHAPTER 4:CHAPTER 4:The Shadow of The Shadow of

the Pastthe Past

HOLD QUESTIONS UNTILEND OF INTRODUCTION

TOMORROW

Approaching Approaching Chapter 4Chapter 4

Approaching Chapter 4: Approaching Chapter 4: VocabularyVocabulary

Approaching Chapter 4: Approaching Chapter 4: VocabularyVocabulary

SPOT BUTCH

LEARN THEIR NAMES

Approaching Chapter 4: Policy Approaching Chapter 4: Policy ConcernsConcerns

• Interests Created by Voluntary Transfers of Property Rights, so Generally Want to Fulfill Grantor’s Intent

• BUT in Tension with Competing Policy Concerns

Approaching Chapter 4: Policy Approaching Chapter 4: Policy ConcernsConcerns

Laypeople Don’t Know CategoriesLeads to Tension Between Grantor’s Intent & Channeling

Function (Telling State What to Do w Property Conveyed)

See White v. Brown (Thursday)

Approaching Chapter 4: Policy Approaching Chapter 4: Policy ConcernsConcerns

• Grantor’s Intent v. – Channeling Function

Approaching Chapter 4: Policy Approaching Chapter 4: Policy ConcernsConcerns

• Grantor’s Intent v. – Channeling Function

–Dead Hand Control

Approaching Chapter 4: Policy Approaching Chapter 4: Policy ConcernsConcerns

• Grantor’s Intent v. – Channeling Function – Dead Hand Control

– Alienability

Approaching Chapter 4: Approaching Chapter 4: Relevant Time FramesRelevant Time Frames

• “At Common Law”: Dates prior to modern streamlining of the rules.

(e.g., 1600-1800)

Approaching Chapter 4: Approaching Chapter 4: Relevant Time FramesRelevant 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)

Approaching Chapter 4: Approaching Chapter 4: Relevant Time FramesRelevant 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.

Approaching Chapter 4: Approaching Chapter 4: Relevant Time FramesRelevant 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”

Present Present Possessory Possessory

EstatesEstates

PRESENT POSSESSORY ESTATES

• Present v. Future (Tenant v. Landlord)

PRESENT POSSESSORY ESTATES

• Present v. Future • Possessory v. Non-Possessory:

(Tenant v. Trust Beneficiary)

FEE SIMPLE ABSOLUTE

FEE SIMPLE ABSOLUTE

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

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.)

• 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