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PROPERTY A SLIDES 3 -3 -15 PROPERTY A SLIDES 3 -3 -15

Tuesday March 3 Music: Vivaldi, Four Seasons (1723) Itzhak Perlman, Violin London Philharmonic Orchestra Tuesday March 3 Music: Vivaldi, Four Seasons (1723) Itzhak Perlman, Violin London Philharmonic Orchestra (Recording 1977; Remastered 1987) 1978 Grammy Award for Best Classical Performance (Soloist with Orchestra) Lunch Today: Meet on Brix @ 11: 55 Esmaili * Kim * Sandler

Previously in Property A Completion of Chapter 2 (Public Use) 1. Review Problem 2 Previously in Property A Completion of Chapter 2 (Public Use) 1. Review Problem 2 G: Choose & Defend a Rule 1. 2. Chapter 3 (Intestacy & Wills) Intestacy Wills a. b. • • • General Introduction & Substantive Limits Formalities Penn. Cases Langbein on Purposes of Formalities Rev Probs 3 A & 3 B

Previously in Property A Chapter 3 Continued: Wills • Substantial Compliance as Alternative to Previously in Property A Chapter 3 Continued: Wills • Substantial Compliance as Alternative to Strict Formalities • • Arguments For & Against Substantial Compliance (Langbein) Application of NJ/UPC Test to Weiss Rev. Prob 3 B (Friday Today) Capacity (Traditional Test & Strittmater) • • Rev Prob 3 C (Today) Rev Prob 3 D (Thursday)

Previously in Property A Intro to Chapter 4 • • Overview: Study Hints & Previously in Property A Intro to Chapter 4 • • Overview: Study Hints & Policy Concerns Present Possessory Estates • • Fee Simple Absolute Finite Estates • • Term of Years Life Estate Fee Tail Quick Intro to Future Interests that Follow Finite Estates • Reversion

SHENANDOAH: Rev. Prob. 3 B (Substantial Compliance Cont’d) APPALACHIAN TRAIL SHENANDOAH: Rev. Prob. 3 B (Substantial Compliance Cont’d) APPALACHIAN TRAIL

Review Problem 3 B (Shenandoah) Substantial Compliance • Both Presence Reqmts Not Met • Review Problem 3 B (Shenandoah) Substantial Compliance • Both Presence Reqmts Not Met • Second Witness Not Present when Testator Signed • Second Witness Not Present when First Witness Signed • 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.

Review Problem 3 B (Shenandoah): Presence Requirements & Substantial Compliance Possible Purposes of Requirements Review Problem 3 B (Shenandoah): Presence Requirements & Substantial Compliance Possible Purposes of Requirements Include: • Evidentiary Function: All part of single ceremony done w/in reasonable time, so Ws are sure of document. • Protective Function: Maybe presence is evidence to Ws everything’s OK. (Cf. someone rapidly rolls T in and out) • Cautionary Function: T awareness of Ws as part of ceremony, so T can yell stop anytime until Ws have finished signing. Does Video Fulfill Purposes of Requirements ?

YELLOWSTONE: Review Problem 3 C GIANT GEYSER YELLOWSTONE: Review Problem 3 C GIANT GEYSER

Yellowstone: Review Problem 3 C (S 64) • VZ dying of AIDS • About Yellowstone: Review Problem 3 C (S 64) • VZ dying of AIDS • About a week before she died, her Dr. brought a lawyer to her. • With Dr. in room, VZ dictated her will to the lawyer. • VZ sometimes mumbled incoherently; Dr. had to translate • Will executed with all proper formalities • "collection of Beatles tapes … I leave to my brother John. “ • Rest of property to Dr.

Yellowstone: Review Problem 3 C (S 64) ISSUES TO DISCUSS IN PROBLEM • “All Yellowstone: Review Problem 3 C (S 64) ISSUES TO DISCUSS IN PROBLEM • “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)

Yellowstone: Review Problem 3 C (Sxx) Traditional Test: Is VZ Aware of … a. Yellowstone: Review Problem 3 C (Sxx) 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?

Review Problem 3 B (S 62) (Undue Influence) • Arches = Ps (M’s Relatives) Review Problem 3 B (S 62) (Undue Influence) • Arches = Ps (M’s Relatives) • Kalil, Deanna • Sandler, Ted • Dominguez, Anthony • Alternative: Klein, Alexa • Biscayne = Defendant Jessica • Esmaili, Sawyeh • Duke, Katie • Pecorella, Nicole • Alternative: Kaleel, Jackie

Critique of Review Problem 3 B (Undue Influence: Yellowstone) • General Instructions @ Bottom Critique of Review Problem 3 B (Undue Influence: Yellowstone) • General Instructions @ Bottom of Assignment Sheet • You are critiquing Undue Influence arguments made in class today. (as opposed to other issues in the Problem) • Plaintiff = Arguments will is invalid • Defendant = Arguments will is valid • Written Submission Due by E-Mail Thur 3/5 @ 10 a. m. • E-Mail me if Qs

Review Problem 3 B (S 62) (Undue Influence) Arches = Plaintiffs (M’s Relatives) Biscayne Review Problem 3 B (S 62) (Undue Influence) Arches = Plaintiffs (M’s Relatives) Biscayne = Defendant Jessica Evidence/Arguments Supporting Undue Influence? Evidence/Arguments Refuting Undue Influence? Stronger Position Overall?

LOGISTICS • To Be Posted: First Weekend of Break • Sample Chapter 4 Multiple LOGISTICS • To Be Posted: First Weekend of Break • Sample Chapter 4 Multiple Choice Qs & (Separately) Answers • Sample Exam Qs 1, 3, 4 & (Separately) Comments/Models • Info Memo on Chapter One (FAQs & Write-Ups of Review Probs) • If you want to do two sample exam answers for comments, first one due Sat 3/14 (instructions on course page) • When to Expect Feedback • Barriers (Housing Exams; Lot of Postings for Chaspters 4 & 5) • Critiques: Before Your Second Critique is Due • Sample Exam Answers: Quickly as I Can (Consistent w Above)

WHITE v. BROWN oops! WHITE v. BROWN oops!

White v. Brown (S 83 -87) Interprets Jessie Lide’s Will I wish Evelyn White White v. Brown (S 83 -87) 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?

REDWOOD: DQ 4. 01 -4. 04 REDWOODS & FERNS REDWOOD: DQ 4. 01 -4. 04 REDWOODS & FERNS

White v. Brown DQ 4. 01 White majority says “the free alienation of property White v. Brown DQ 4. 01 White majority says “the free alienation of property [is] one of the most significant incidents of fee ownership. ” Why is it significant?

White v. Brown DQ 4. 01 White majority says “the free alienation of property White v. Brown DQ 4. 01 White majority says “the free alienation of property [is] one of the most significant incidents of fee ownership. ” Significance Includes: 1. Allows land to move to owner who can make most valuable use of it 2. Means land is relatively liquid asset maximizing owner’s control & freedom (can sell or mortgage for $).

White v. Brown Redwood: DQ 4. 02 I wish Evelyn White to have my White v. Brown Redwood: DQ 4. 02 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. "

White v. Brown Redwood: DQ 4. 02 I wish Evelyn White to have my White v. Brown Redwood: DQ 4. 02 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?

White v. Brown Redwood: DQ 4. 02 I wish Evelyn White to have my White v. Brown Redwood: DQ 4. 02 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?

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

White v. Brown Redwood: DQ 4. 03 WHAT ARE THE MAJORITY’S ARGUMENTS THAT MS. White v. Brown Redwood: DQ 4. 03 WHAT ARE THE MAJORITY’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A FEE SIMPLE?

White v. Brown Redwood: DQ 4. 03 MAJORITY ARGUMENTS (FEE SIMPLE) • Presumption: Grant White v. Brown Redwood: DQ 4. 03 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)

White v. Brown Redwood: DQ 4. 03 WHAT ARE THE DISSENT’S ARGUMENTS THAT MS. White v. Brown Redwood: DQ 4. 03 WHAT ARE THE DISSENT’S ARGUMENTS THAT MS. LIDE INTENDED TO CREATE A LIFE ESTATE?

White v. Brown Redwood: DQ 4. 03 DISSENT ARGUMENTS (LIFE ESTATE) • Presumption: All White v. Brown Redwood: DQ 4. 03 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 (standard construction argument: different language=different meaning)

White v. Brown Redwood: DQ 4. 03 I wish Evelyn White to have my White v. Brown Redwood: DQ 4. 03 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?

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

White v. Brown Holds Interest is Fee Simple Absolute Result: The Property Can Be White v. Brown Holds Interest is Fee Simple Absolute Result: The Property Can Be Sold!!!

White v. Brown Redwood: DQ 4. 04 Imagination Exercise: Possible Relevant Facts Not in White v. Brown Redwood: DQ 4. 04 Imagination Exercise: Possible Relevant Facts Not in Opinion • 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

White v. Brown Redwood: DQ 4. 04 Imagination Exercise: Possible Relevant Facts Not in White v. Brown Redwood: DQ 4. 04 Imagination Exercise: Possible Relevant Facts Not in Opinion • To Add Weight to Majority Position (Fee Simple)? • To Add Weight to Dissent Position (Life Estate)?

White v. Brown What Actually Happened? 1. EW had stroke, moved in w daughter White v. Brown What Actually Happened? 1. EW had stroke, moved in w daughter 2. Probably wants to sell house b/c rental income not much 3. 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

White v. Brown Grantor’s Intent v. “Channeling” Function 1. Recurring problem with estates/future interests: White v. Brown Grantor’s Intent v. “Channeling” Function 1. Recurring problem with estates/future interests: laypeople don’t know relevant categories. 2. Thus, they don’t know how to signal what they wish to future court. 3. Important roles that lawyers play in helping with wills: a. Ask Qs to discern client wishes (“What if Evelyn gets sick? ”) b. Channel client desires into language that gives legal effect to those wishes.

White v. Brown Test Note #1: Test Will Include At Least One Grant (Yielding White v. 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?

Vested v. Contingent Remainders Vested v. Contingent Remainders

FUTURE INTERESTS THAT FOLLOW FINITE ESTATES REMAINDER Future interest in a third party that 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.

VESTED REMAINDER 1. Grantee is living ascertainable person (can presume this if granted to VESTED REMAINDER 1. Grantee is living ascertainable person (can presume this if granted to a named individual. )

VESTED REMAINDER 1. Grantee is living ascertainable person AND 2. Clause creating the remainder VESTED REMAINDER 1. Grantee is living ascertainable person AND 2. Clause creating the remainder contains no condition on grantee taking the property except expiration of prior estate.

VESTED REMAINDER 1. Grantee is living ascertainable person AND 2. Clause creating the remainder VESTED REMAINDER 1. Grantee is living ascertainable person AND 2. 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.

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

REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s firstborn child. ” • Fred 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.

Suppose Fred has a child, Pebbles… Suppose Fred has a child, Pebbles…

REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s firstborn child. ” • Fred 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”

REMAINDERS: EXAMPLES “To Fred for life, then to Fred’s oldest child living at Fred’s 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.