PROPERTY F: INFORMATION MEMO #4 (11/25/07)

TABLE OF CONTENTS

A. ESTATES & FUTURE INTERESTS EXAM: ANSWERS & EXPLANATIONS (IM48-58)

B. PROPERTY F PRACTICE MIDTERM: COMMENTS & BEST STUDENT ANSWERS (IM59-72)

C. ASSIGNMENT III: COMMENTS & BEST STUDENT ANSWERS FROM PRIOR YEARS (IM72-92)

A. Property F Estates & Future Interests Exam: Answers & Explanations

Generally, your performance was quite good. The median was 20/24, only 13 of you got fewer than 17/24, one student got a perfect score and seven got 23/24. To determine the number of points you will receive for the test, divide the number you got correct by 2. Thus, a perfect score receives 12/12 points and a median score receives 10/12.

The questions and answers are laid out below. Correct answers are in bold type. My comments are in italics. The names of everyone in the class should be readily apparent except for Nunn and Webb (which each lost a final consonant and got converted into ordinary nouns), and Shelly Tenwinkle, who inadvertantly got left off (sorry).

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(1) Which of the following future interests is initially held by the grantor?

This is a variation on Exam Bank Question 2 and Fall 2005 Question 4

(a) Right of entry. This is the future interest held by the grantor that follows a present estate on condition subsequent. 96.8% of you got this right, making it tied for the second easiest question on the test.

(b) Shifting executory interest.(c) Springing executory interest. A springing executory interest cuts off the

grantor’s interest, but is always held by a third party, not by the grantor.(d) Contingent remainder in life estate.

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(2) Which of the following was a finite present possessory interest at common law?

This was a new question.

(a) Fee Tail(b) Life estate pur autre vie. 17.5% of you chose this answer, which is a finite

present possessory interestno matter when it took place..(c) A grant “to Henrique forever.” At common law, you had to use the words

“and his heirs” to create a fee simple. The default estate was a life estate, so as in the Ernie and Bert problem we did in class, this grant would have created a life estate in Henrique, which is a present finite estsate.

(d) All of the above. 73% of you got this right.

Questions 3-4 are based on the following grant: In 2002, Jacob conveys Brook-acre “to Karen for life, then to Leigh for life, then to Mady and her heirs.”

This is a variation on Exam Bank Questions 3-4, which were based on a combination of Problems C and E(3) Which of the following interests is created by the grant:

(a) Contingent remainder in life estate in Leigh. . By convention, Leigh’s remainder is considered vested even though she has to survive Karen to take possession because no explicit condition is included in the description of her interest.

(b) Vested remainder in fee simple in Mady. 93.7% of you chose this answer, making it the 5th easiest on the test.

(c) Reversion in Jacob. Because both remainders are vested and because Mady has a remainder in fee simple, the time line is filled with vested interests and there is nothing left from which to create a reversion.

(d) All of the above.

(4) Karen died in 2006. Later that year, Mady died with no living heirs, but leaving all her property to the Red Cross in a valid will. When Leigh dies, who gets Brook-acre?

(a) Leigh’s heirs. Leigh had no interest that would survive her death.(b) The Red Cross. Mady’s vested remainder would pass through her valid will. As

long as she has a will, it is irreelevant that she has no living relatives close enough to be considered heirs by the state. 88.9% of you chose this answer.

(c) Whoever possesses Jacob’s interests in the property. Jacob had no interests left after the conveyance.

(d) The state. This would be true if Mady (like poor Bugs Bunny in Problem C) had died intestate with no living heirs.

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Questions 5-6 are based on the following grant: In 1990, Nicholas dies leaving a valid will that says: “I leave Wade-Acre to Morgan so she always has a place to call home so long as Morgan doesn’t use the property for commercial purposes, then to my nephew Raul and his heirs if Raul reaches the age of 21. I leave all my other property to my friend Sarah.”

Questions 5-8 are variations on Exam Bank Questions 43-46, Fall 2005 Questions 7-10, and Spring 2007 Questions 21-24, which in turn are based on Review Problem U. This is closest to the Fall 2005 version of the problem.

(5) Which of the following arguments supports a claim that Morgan’s interest is a defeasible fee simple (rather than a defeasible life estate)?

(a) Most American jurisdictions have eliminated the Doctrine of the Destructibility of Contingent Remainders. This may determine the fate of Raul’s interest, but seems irrelevant to whether Morgan’s interest is fee or life estate.

(b) The grantor cannot have intended Raul to take possession of the property while he still was underage. This explains the wording of the grant to Raul, but doesn’t give us information about Morgan’s interest.

(c) The condition regarding commercial use restricts Morgan, not Morgan’s heirs. If anything, this suggests a life estate, since the restriction only lasts as long as Morgan is alive.

(d) Modern American jurisdictions presume that an interest is a fee simple absent clear evidence of intent to the contrary. This is part of White v. Brown. 98.4% of you chose this answer, making itthe easiest question on the test.

(6) Which of the following arguments supports a claim that Morgan’s interest is a defeasible life estate (rather than a defeasible fee simple)?

(a) The grantor’s use of the word “then” rather than “but” (to introduce Raul’s interest) suggests that the interest is a remainder rather than an executory interest. We discussed this argument in connection with interpreting ambiguous grants of this type.

(b) If Morgan’s interest is a fee simple, she can sell it and she would not “always have a place to call home.” This is similar to one of the dissent’s arguments from White v. Brown.

(c) The grantor used “and his heirs” when he wanted to create a future interest in fee simple in Raul. This is one of the dissent’s arguments from White v. Brown.

(d) All of the above. 90.5% of you chose this answer.

Questions 7-8 are based on the same grant as Questions 5-6 plus the following additional information: After Nicholas's death, Morgan moved onto Wade-Acre, where she ran a web-based search business from her computer. Before Raul turned 21, Morgan died without leaving a will.

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(7) Assuming a court views Morgan’s interest as a defeasible life estate, and finds that Morgan’s internet business did not violate the restriction on commercial use, who owns the property at Morgan’s death?

In this scenario, initially Morgan has a life estate determinable, Raul has a contingent remainder, and Sarah holds a reversion (from Nicholas’s will) and there is a possibility of reverter (whose owner we need not determine). The condition can only be violated by Morgan, so once she dies, the possibility of reverter fails. If the state destroys contingent remainders, Sarah has a fee simple absolute. If not, Sarah has a fee simple on executory limitation and Raul has a springing executory interest.

(a) Nicholas’s heirs in fee simple on executory limitation, if the jurisdiction destroys contingent remainders. This answer is wrong on two counts. First, Nicholas’s reversion passed to Sarah. Second, if the jurisdiction destroys contingent remainders, the remaining interest is fee simple absolute.

(b) Morgan’s heirs in fee simple absolute, if the jurisdiction destroys contingent remainders. If the court finds Morgan’s interest to be a life estate, her heirs have no interest that survives his death.

(c) Sarah in fee simple determinable, if jurisdiction destroys contingent remainders. This is wrong because the condition ends with Morgan’s death.

(d) Sarah, in fee simple on executory limitation, if the jurisdiction does not destroy contingent remainders. 84.1% of you chose this answer.

(8) Assuming a court views Morgan’s interest as a defeasible fee simple and finds that Morgan’s internet business violated the restriction on commercial use, which of the following would be relevant to determining who owned the estate?

In this scenario, when the condition was violated, it automatically passed to the holder of the possibility of reverter because of the “so long as language” and the complete absence of any language that looks like condition subsequent. The possibility of reverter would have passed through Nicholas’s will to Sarah only if possibilities of reverter are devisable in the jurisdiction. Otherwise, it will pass to Nicholas’s heirs, who cannot include Sarah, who is a “friend.”

(a) Other cases interpreting “commercial purposes.” This is incorrect because the problem says that the court already has found that the condition was violated, which makes further discussion of this type of case irrelevant.(b) Whether the jurisdiction destroys contingent remainders. If the court finds Morgan’s interest to be a defeasible fee, there can be no remainders in the grant to destroy. (c) Whether possibilities of reverter are devisable in the jurisdiction. As noted, this will determine whether Sarah can get the property. This is an application of the discussion we had about Mahrenholz. 84.1% of you chose this answer.(d) The presumption in favor of fee simple on condition subsequent. The presumption doesn’t apply where the grant is so clearly in the form of a fee simple determinable.

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Questions 9-10 are based on the following grant: Tim grants Vivian-acre “to Yeshai for life, then to Becky if she becomes a nun, but if Becky never becomes a nun, then to Christina.”

Questions 9-10 are essentially the same as Fall 2005 Questions 2-3 and Spring 2007 Questions 7-8. Yeshai gets a life estate. Becky and Christina have alternate contingent remainders (either Becky becomes a nun before she dies and her interest vests or Becky dies without becoming a nun and Christina’s interest vests). Tim retains a reversion.

(9) If the grant takes place in 2007, all of the following interests are created except:

(a) Life estate in Yeshai.(b) Contingent remainder in Becky.(c) Shifting executory interest in Christina. If Becky had a vested remainder,

this would be correct, but Christina’s interest will not cut off a present or vested estate, so it is also a remainder. 76.2% of you chose this answer.

(d) Reversion in Tim. 20.6% of you picked this answer, even though there must be a reversion if Becky has a contingent remainder, which you must have realized she does because you didn’t pick (b).

(10) Assume Becky became a nun, then died leaving a valid will devising all her property to Dalia. Subsequently Yeshai died. If the grant took place “at common law,” who would then have the right to possess Vivian-acre?

When Becky becomes a nun, her remainder vests and Christina’s remainder fails. However, at common law, Becky’s vested remainder is in life estate, because the grant does not say “and his heirs.” Thus, when she dies, her interest dies with her. At Yeshai’s death, Tim’s reversion (which must follow the remainders in life estate) becomes possessory.

(a) Christina, because of the Doctrine of Destructibility of Contingent Remainders. Christina’s interest fails as soon as Becky becomes a nun (either at common law or today)(b) Dalia, because Becky’s interest vested before Yeshai’s death. Because Becky’s interest was in life estate, it could not survive Becky’s death. (c) Tim, because of the Doctrine of Destructibility of Contingent Remainders. The destructibility doctrine would come into play if Yeshai had died before Becky’s interest vested, but it doesn’t affect a vested interest.(d) Tim, because of the presumption favoring life estates. 85.7% of you picked this answer.

Question 11 is based on the following grant: In 2002, Elan grants Sack-acre “to Jared for life, then to Marc, but if Marc fails to attend Jared’s funeral, Jared’s heirs can take Sack-acre.

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This is a variation on Exam Bank Question 26 and Problem J. Marc’s interest is a vested remainder, because there is no condition in the clause creating his interest; the condition is part of the grant to Jared’s heirs. It is not subject to divestment, because the condition can only be violated after Jared’s death, after Marc has taken possession of Sack-acre. Because the future interest is not held by the grantor, what Marc will get is a fee simple on executory limitation.

(11) Marc has:

(a) a vested remainder in fee simple on executory limitation. 61.9% of you picked this answer, making this the 4th hardest problem on the test.(b) a vested remainder in fee simple on condition subsequent. This would be true if the future interest cuitting off Marc was held by the grantor or, if in a will, the grantor’s heirs. 22.2% of you chose this answer.(c) a vested remainder subject to divestment.(d) a contingent remainder.

Questions 12-14 are based on the following grant: In her valid will, Nicole grants Schwarz-Acre “to PJ for life, then to Robyn and her heirs, but if my daughter Sasha marries a writer, then to Sasha and her heirs.” This is a variation on Exam Bank questions 19-21, Fall 2005 questions 11-13, and Spring 2007 questions 122-14, which involved an “artist” a “public school teacher,” and an “actor” instead of a “writer.”

(12) Which of the following is true?

(a) Nicole has a reversion. Where a vested remainder in fee follows a life estate, no reversion is created.(b) Robyn has a vested remainder subject to divestment. Robyn’s interest is a remainder because it follows a life estate; it is vested because she is alive and ascertainable and no condition precedes her taking; it is subject to divestment because she can lose it before she takes possession if Sasha marries a writer. 88.9% of you got this right.(c) Sasha has a contingent remainder. Sasha’s interest follows and would cut off a vested remainder, so it must be an executory interest.(d) Sasha has a springing executory interest. Sasha’s interest would cut off another grantee, so it is shifting.

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(13) Which of the following facts would not be relevant to the determination of whether PJ’s interest is best characterized as a life estate on executory limitation:

(a) Nicole repeatedly expressed concern that if Sasha (who was a writer herself) married one of her writer friends, Sasha would starve to death. If Nicole was worried that Sasha would starve, she would want her to have the property immediately.(b) Robyn is PJ’s daughter. If Sasha marries a writer, Robyn will lose her interest regardless of how we characterize PJ’s interest, so I see no reason why this fact would matter. This was the answer that had not been in the prior versions of the question. 84.1% of you got this right.(c) PJ is 78 years old and in poor health. . If this is true, it would seem likely that Nicole did not intend to evict poor PJ, but rather to have Sasha wait until PJ’s life estate ended.(d) The grant to Sasha includes the word “then.” If the grantor wanted to be clear that the grant to Sasha had to wait for the end of the life estate, using “then” would help to so indicate.

(14) If the condition that Sasha marry a writer is challenged as being against public policy, which of the following facts support reaching a result in this case different from the result reached in Shapira?

(a) It might be very difficult for a court to determine whether someone is an “writer.” One of the factors that worked in favor of the grant in Shapira was the relative ease of determining whether the sons’ spouses were Jewish girls born of Jewish parents. By contrast, there might be some controversy about who really is an “writer”(e.g., someone who writes the instructions for assembling Ikea furniture). Thus, if a court believed this to be true, it might not wish to make that determination, which would support a result different from that in Shapira. 74.6% of you got this right (b) There are thousands of aspiring writers residing in the city where Sasha lives. This supports reaching the same result as Shapira because of the wide range of possible spouses. (c) At the time Nicole died, Sasha was engaged to be married to a writer. If the grant was intended to break up Sasha’s pending marriage, it might violate public policy. (the result different from Shapira). Here, by contrast, the grant might encourage the pending marriage, which is not inconsistent with public policy. 17.5% of you chose this answer.(d) All of the above.

Questions 15-18 are based on the following information: In 1975, Tramell granted Dryer-acre “to Amanda for life, then to Amanda’s children, but if Amanda is not survived by any children, then to Blake and his heirs.” At the time, Amanda had no children. In 1977, Amanda had a child, Christine. In 2007, Christine died leaving all her property in a valid will to Eric.

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The grant is the same as that in Problem M. The Questions are essentially the same as Exam Bank Questions 12, 14 & 15 and Fall 2005 Questions 17-20. The relatively weak results on questions 17-18 are a little disappointing since we did this problem in class.

(15) In 1975, the interest in Amanda’s children is a(a) Contingent remainder. The interest is contingent because no children are born yet. 88.9% of you chose this answer.(b) Contingent remainder subject to divestment. There is no such thing; subject to divestment only modifies “vested remainder.”(c) Vested remainder subject to open. The interest can’t be vested because no children are born. (d) Vested remainder subject to divestment. Same as (c).

(16) When Christine is born, which of the following is then correct?

(a) Blake has a contingent remainder in fee simple. Once Christine’s interest vests, Blake’s interest becomes a shifting executory interest, because it must divest a vested remainder to become possessory.(b) Christine has a contingent remainder in fee simple. When Christine is born,she gets a vested remainder (because she is living and ascertainable and there is no condition precedent in the grant to the children) subject to open (because more children could be born) subject to divestment (because she could lose her interest prior to coming into possession if Amanda dies survived by no children.). This answer is wrong because, given the way the grant is worded, the survival condition is part of the grant to Blake, not the grant to the children.(c) Christine has a vested remainder in fee simple on executory limitation. This is wrong because Christine can only lose the property before coming into possession. If she moved on to the property, by definition she would have survived Amanda and the grant to Blake would have failed. (d) Tramell’s reversion divests. Because initially there were two contingent remainders, Tramell retained a reversion. When Christine is born and the children’s interest vests, the reversion is no longer needed as a placeholder and the reversion divests. Only 71.4% of you got this right, making it tied for the 5 th

hardest question on the test.

(17) When Christine dies, what happens to her interest?(a) It passes to her heirs. Christine can pass a vested remainder to anyone she wants at her death. Because she had a valid will, it will not pass intestacy.(b) It passes to Eric. At her death, Christine had a vested remainder subject to open subject to divestment. The interest is not (by its terms) dependant on Christine surviving Amanda. Blake only takes over (divesting Christine’s interest) if Amanda is survived by no children at Amanda’s death. Since Amanda is still alive and can have more children, Blake’s interest has not vested. Christine’s interest will remain at least until Amanda’s death, and is held by Eric.

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Only 60.3% of you got this right, making it tied for the 2d hardest question on the test.(c) It is destroyed. As noted, the interest can only be destroyed by Blake’s interest vesting, which cannot happen until Amanda’s death. 30.2% of you chose this answer, suggesting you need to read the grant more carefully.(d) None of the above.

(18) Which of the following events would make Blake’s interest fail?(a) Amanda having another child who survives Amanda’s death. Blake’s interest only fails if one or more of Amanda’s children survive Amanda. 82.5% of you got this right.(b) Blake dying before Amanda. The grant does not make Blake’s interest contingent on his surviving Amanda. (c) Blake dying intestate without heirs. This makes Blake’s interest pass to the state, but it would not fail (which means “cease to exist” in this context).(d) All of the above.

Questions 19-20 are based on the following information: Jason grants Carr-acre “to Matthew and his heirs, but if Carr-acre ever ceases to be used as a farm, it can immediately be retaken.” This is a new variation on the Mahrenholz problem.

(19) All of the following arguments support characterizing Matthew’s interest as a fee simple on condition subsequent (as opposed to a fee simple determinable) except:

(a) Most states have a presumption in favor of the fee simple on condition subsequent. This is true.

(b) The grant gives the property to Matthew in fee simple in the first clause, then provides the limiting condition in the second clause. As we discussed in class, this is the classic form for a fee simple on condition subsequent.

(c) Saying that the property “can” be retaken seems to leave the holder of the interest more discretion than saying that it “will” or “must” be retaken. Discretion on the part of the grantor is the key characteristic of the fee simple on condition subsequent. I have used this argument in several prior questions.

(d) The grant appears to be designed to grant Matthew the property solely for one purpose, to operate it as a farm. Mahrenholz says that the proper form to use to convey land only for a defined purpose is a fee simple determinable, not a fee simple on condition subsequent. I was pleased that 88.9% of you got this right, because it was a new problem.

(20) Which of the following arguments support characterizing Matthew’s interest as a fee simple determinable (as opposed to a fee simple on condition subsequent)?

(a) The grant contains two clauses. This is typically a characteristic of a fee simple on condition subsequent.

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(b) The future interest was retained by the grantor. This is true of both interests, so it doesn’t help you decide between them.

(c) The grant uses the words “ever” and “immediately.” This argument is similar to the reliance by the court in Mahrenholz on “only” and “to revert.” These words suggest that the title automatically reverts to the grantor, and so are more consistent with a fee simple determinable. 96.8% of you got this right, making ittied for the 2d easiest question on the test.

(d) Most states have a presumption in favor of the fee simple determinable. This is incorrect; most states presume otherwise.

Question 21 is based on the following information: In 1990, DeeAnn conveyed Tanner-acre “to Brendan for life, then to Javier’s children alive at Brendan’s death and their heirs.” At that time, Javier had two children, Melissa and Ryan. In 2000, Melissa died, leaving all her property to Scott in a valid will. In 2001, Brendan died. In 2003, Javier had an additional child, Arun.

This is essentially Fall 2005 Question 5 and Spring 2007 Question 10. The grant to Javier’s children requires that they be alive at Brendan’s death. Melissa dies before Brendan, so she has no interest to leave to Scott or to her heirs. Arun was not even conceived at the time of Brendan’s death, so he does not meet the condition either.

(21) Assuming that Tanner-acre has not been transferred in any way besides pursuant to the information above, who owns Tanner-acre in 2004?

(a) Ryan. 95.2% of you got this right, making it the 4th easiest question on the test.(b) Scott and Ryan.(c) Melissa’s heirs and Ryan. (d) Scott, Ryan and Arun.

Question 22 is based on the following information: In her valid will in 2006, Jennifer grants Bowen-acre: “To Micki for life, then to my children for their lives, then to Micki’s heirs.”

This is a variation on a set of questions I’ve used to test a rule we didn’t cover this year. Students have had trouble in the past because of a failure to think through the logic of the problem. The grant is in Jennifer’s will, which means she is dead, which means that any children she is ever going to have are already born.

(22) Which of the following interests is created by the grant?

(a) Contingent remainder in Jennifer’s children if there are none alive at the time of the grant. If no children survive Jennifer, the interest simply fails; it is not contingent because no more can be born.

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(b) Vested remainder in life estate subject to open in Jennifer’s children if any are alive at the time of the grant. The vested remainder is not “subject to open” because no more children can be born. 15.9% of you chose this answer. Note that if Jennifer were still alive, both (a) and (b) would be correct, which should have given you a clue to go back and reread the problem.

(c) Vested remainder in Micki’s heirs. A remainder in the heirs of a living person is always contingent. 15.9% of you chose this answer.

(d) None of the above. Only 60.3% of you got this right, making it tied for the second hardest problem on the test.

Question 23 is based on the following information:

In 2006, Brian grants Mason-acre “to Dolly for life, then to Jessica so long as she never tries to sell Mason-acre, otherwise to Mike and Mili.”

This is a new question. The condition here is a flat ban on alienation, which is invalid everywhere, so it would simply be pencilled out. That leaves Jessica with a vested remainder in fee simple absolute and leaves Mike and Mili with nothing but a good name for a vaudeville act.

(23) At the time of the grant, Jessica has a

(a) Vested remainder in fee simple determinable. Even if the condition were valid, this would be incorrect, because the future interest is not held by the grantor.

(b) Vested remainder in fee simple absolute. Only one of you got this right, making it far and away the hardest question I’ve ever put on one of these tests.

(c) Vested remainder in fee simple on executory limitation. If the condition were valid, this would be correct. 84.1% of you chose this answer.

(d) Vested remainder subject to divestment. Even if the condition were valid, this would be incorrect, because the condition could not be violated until Jessica took possession of the property.

(24) All of the following were true “at common law” except :

This is a slight variation on Exam Bank Question 48 & Spring 2007 Question 2

(a) Courts recognized the traditional estate of fee tail.(b) The Doctrine of Destructibility of Contingent Remainders applied. 17.5% of

you chose this answer.(c) Executory interests were not permitted. Before 1536, no executory interests

were allowed. Since 1536, through the period we describe as “at common law,” both kinds have been allowed. Only 71.4% of you chose this answer, making it tied for the 5th hardest question on the test.

(d) The default present possessory estate was the life estate.

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(B) PROPERTY F PRACTICE MIDTERM: COMMENTS & GOOD STUDENT ANSWERS

(1) Overview: This section of the document contains: A description of my grading process; Suggestions for improving exam-writing technique; and For each midterm question:

o The questiono My commentso Two solid student answers from this year; and o The two best answers from when it was given on a final exam.

(2) Grading Process: For each exam, I first went through and put a check mark next to each relevant correct point you made. I used a ½ check to indicate when a point you made was a little bit off. I totaled the check marks for each question and put that total (quantity or “Q”) on the first page of each . After doing the checkmarks, I reread each exam and wrote extensive comments. The comments are much more important than the number of checks. Please feel free to ask if you don’t understand any of them.

The number of checkmarks is a measure of the quantity of material you got down on paper and would not translate neatly into your final grade. In addition to quantity, I consider organization, thorough and thoughtful analysis, focus on the most important issues, ability to see arguments for both sides, and clear writing. I use checkmarks as a starting point for grading the issue-spotting question and some of the short problems on your final exam, but if two exams are otherwise equivalent, it usually takes at least 10-15 additional checks to get a higher score on a one hour question.

On this test, on Question 1, the average number of checks was 13; the two models had the highest totals, 25 and 21 respectively. On Question 2, the average number of checks was about 20; again the two models had the highest totals, 33 and 29 respectively. These high scores were not achieved by spending too much time on one problem rather than the other. The three students who between them wrote the four models also had the three highest total checks on the exam (49 or 50) where the next highest totals were 38.5 and 37. All students who took my test except for the top three should look carefully at the section below on writing more efficiently.

(3) Exam-Taking Techniques (a) Introductions:

(i) Generally speaking, long introductions to the whole question are not useful. Introductory sentences like, “There are several issues we must discuss to resolve this open & notorious problem.” don’t add much. Just go through the issues.

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(ii) Here, you might simply have started with one of the legal tests for open & notorious on Q1 and with a statement of the Restatement test on Q2.

(b) Maximizing the Number of Points You Make: (i) Citations: Although citations to authority are not necessary, you can pick up more

points relatively quickly by providing citations to cases, statutes, or other authority for rules or principles to which you refer. Only use one name to describe cases (Spur is fine; Spur Industries v. Del Webb unnecessary).

(ii) Abbreviations: Use abbreviations for parties (e.g., Alissa =A Mike = M)and elsewhere if you can do it comfortably. (e.g., open and notorious = O&N; because = b/c). You need not provide a key for the reader if you are using abbreviations for party names unless there is more than one person in the problem whose name begins with the same letter. You should introduce other abbreviations in the text or in the margins.

(iii) Avoid unnecessary words. Sentences like, “There are five elements of adverse possession.” Just jump in to the elements. Phrases like “It has been determined that” or “the facts show that” generally add little. Try to develop lean writing style for exams. Use less than perfect sentences. Telegraph style—dropping words unnecessary to convey the sense of the sentence—is fine so long as your meaning remains clear: “M argues very limited utility from aesthetics b/c alternatives (lots of pretty flowers don’t cause allergies or kill common plants)..”

(iv) Headings: Similarly, sentences like “The first thing to discuss is the gravity of the harm.” can be replaced by the heading “Gravity of Harm” Certainly, if you’ve already used the heading, no need to repeat the point. Instead, jump into your analysis by providing a relevant definition or legal standard (e.g., of an element of adverse possession) or by immediately pointing out the relevant facts, where the heading already incorporates part or all of the legal standard (as in “gravity of harm”). Make your headings short. A heading that asks “Does the gravity of the harm outweigh the utility of the conduct?” has not saved you any time; you can just say “Balance”.

(c) Do One Thing At a Time(i) Work through one issue or subissue before starting the next. Your analysis

will not be as effective if you leap about from issue to issue, coming back to things you’ve already discussed several times. You will get more points if you thoroughly discuss an issue (some arguments for both sides; some attempt to resolve uncertainties using policy/theory or an explanation of why one position is better than another) rather than quickly noting it and moving on.

(ii) Be careful about using concepts related to one issue to support arguments regarding a different issue. Some students brought in arguments related to state of mind or the actual or continuous elements in their discussion of open & notorious. If you do this, you need to explain carefully why they are relevant to the question. Otherwise, it just looks like you don’t understand that the two areas are different. (d) Getting the most out of Discussions of Particular Issues

(i) Refer explicitly to the facts that support your claims. “A will argue that M is oversensitive,” is simply restating the legal issue in the form of a claim. Add: “because the other neighbors’ compliments suggest they are not bothered by the plants.”

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(ii) Explain Why Things Matter. If you say, for example, “Fifteen feet of growth in 26 years amounts to little more than 6 inches a year,”: “Even a reasonably prudent owner might not notice encroachment happening that slowly.” If you refer to a fact or statement from a case, (“In Marengo, the area claimed was entirely underground.”) explain explicitly and immediately how it relates to your analysis: “Here, by contrast, not just the trees but the roots were aboveground and easily visible, so Marengo’s determination that it would be too difficult to notice the encroachment shouldn’t apply.”

(iii) Try to apply any rule or principle that you mention. Some of you mentioned one or more tests for adverse possession at the outset, then never referred back to them. A helpful way to prevent yourself from forgetting about a rule you’ve mentioned is to apply any rule to the facts as soon as you mention it.

(iv) Try to Make Different Kinds of Arguments for Both Sides: For Question 1, you could make arguments for both sides on, e.g., the application of the “reasonable owner” test, the application of Marengo, and the policies underlying “open & notorious.” On Question 2, you could make arguments for both sides on, e.g., whether the benefits were significant, whether the harms were significant, how a court might do the balance, and whether nuisance is an appropriate way to address problems arising from exotic species. (e) Conclusions:

(i) Don’t begin an answer or a section of an answer with an overall conclusion or a conclusion about a particular issue. about that issue. If you start a section, for example on balancing harm and utility, with a phrase like “Balance favors A”, you do yourself two kinds of harm. First, you get no points for stating the conclusion before you’ve done any analysis. Second, you may discourage yourself from exploring options contrary to the conclusion you’ve already drawn. Save your conclusions about each issue, if any, for the end of the analysis.

(ii) You can pick up points at the end of a short question or a section of a longer one by trying to resolve ambiguities by looking at policy or theory. In other words, if there are good arguments for both sides under a particular rule or factor, you can do more than simply point out these arguments. You can add further discussion about what a decision-maker should do given the ambiguity. For example, if you decide there are good arguments for both sides as to whether the blackletter tests for open & notorious are met, you can continue the analysis as follows: “On balance, if purpose of open & notorious is to determine whether an owner is really asleep, a court might believe that owners residing on large lots are not neglecting their duties if they are not aware of their precise boundary lines, and thus side with the owner.

(iii) A sentence at the end of a section like “It appears M is likely to win the balance.” adds nothing to your analysis unless you tell me why he does.

(iv) You don’t necessarily need a conclusion at the end of the whole answer. Conclusions that merely repeat points you’ve already made or that simply announce the winner garner no new points. On the other hand, helpful conclusions add to the analysis by doing new work with the pieces you’ve already discussed such as discussing why some arguments might be more persuasive than others.

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(f) Be Precise When You Use Cases: Be careful to cite cases only for propositions they fairly stand for. Some of you cited McCarty or Spur for the operation of the First Restatement balancing test; neither case applies that test. Also, you should try to distinguish between what a case actually says and possible readings that arose in class discussion: “Shack states that …” v. “A court might read Shack to suggest that …” (g) Follow Directions. Please. For example, instructions said to write only on one side of each page. Some of you did not. It is very annoying to try to read a flimsy bluebook page with the writing on the backside partially visible. If you do this on the exam, I will be very annoyed when I read your work and you don’t really want me annoyed when I am deciding on your grade. That said, if you have started some writing on the back of a page, it is not an effective use of time to cross out an entire written paragraph. Write “sorry” next to it, and just continue where you are supposed to. I won’t take off points.

(4) QUESTION I: OPEN & NOTORIOUS(a) Question: Discuss whether the growth of the mangroves encroaching onto

Leslie’s land in the following scenario meets the “open and notorious” element of adverse possession: Fresh Mangroves are fast-growing trees, which if left to their natural growth patterns, put down additional roots in an ever-larger area spreading out from their original location. Significant portions of these roots are above the ground. Leslie and Jennifer own large adjoining plots of land. Each plot contains a large house, extensive lawns, and many trees and shrubs. In 1972, knowing of their tendency to spread rapidly, Jennifer planted a line of Fresh Mangroves along the edge of her property adjacent to Leslie’s lot. Neither Leslie nor Jennifer ever trimmed the line of mangroves, but Jennifer regularly watered them and sprayed them with fertilizer and insecticides while standing on her side of the property line. In 1998, Rene offered to purchase Jennifer’s lot. A survey revealed that the mangroves had encroached onto Leslie’s property in a strip about fifteen feet wide along the whole property line. Jennifer now claims the strip by adverse possession.

(b) My Comments: (i) What I Was Looking For:

(A) Application of Relevant Legal Tests: States define O&N in terms of whether the particular use is “visible to someone standing on the surface of the land” or would put a reasonably prudent owner on notice.” The easier arguments here are in favor of the adverse possessor: Is a 15 foot strip of above-ground roots and trees visible? Of course. Should a reasonably prudent owner become aware of that much vegetation? Probably. The difficulty is really formulating arguments for the other side. You might argue that:

The growth was so slow that even a reasonably prudent owner might not notice Trees & roots in an already wooded area might not be different enough from

what’s around them to serve as notice of an adverse possession claim The case should be treated as a boundary dispute (see below)

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(B) Boundary Disputes: If the state has separate rules for boundary disputes, a court is likely to apply them here. You could have noted that some states require “actual knowledge” to meet O&N in boundary disputes. You could also have noted that different policy considerations may apply to boundary dispute.

(C) Marengo: You might have discussed this case because it is the only one we covered that has an extensive discussion of O&N. You could distinguish it easily because the roots and trees are above-ground. However, you might argue that the policies behind the decision might apply here: it might be unfair to require the owner to do surveys to establish the borderline in the face of a very slow-moving incursion.

(D) Policy Behind O&N: You could usefully discuss whether the owner here is the kind of sleeping owner that should be punished by losing her land.

(ii) Common Problems:(A) Not Sticking to Question: Many students discussed elements other than

O&N. This hurts you in two ways. First, you lose points for not following directions. Second, you lose time you could be spending on the question I asked.

(B) Not Using Legal Tests Properly: Many students need practice applying legal tests to facts. If you do this properly, the language of the legal test should provide the structure for your subsequent discussion and you should regularly refer back to specific language and/or the test as a whole.

(C) One-Sided Analysis: About half the students who took the test decided there was a very clear winner here and almost all points they made supported that conclusion. (Interestingly, some of you thought J was a clear winner and others thought L was a clear winner.) Assume there are significant arguments for both parties and do your best to identify each side’s best points.

(D) Misusing Authority: Many students cited Lutz or Ray for discussions of O&N, even though neither case rules on this element. You have to know what the cases say.

(c) Best Student Answers: Fall 2007 Midterm(i) 2007 Midterm Q1 Student Answer #1: This answer is a little stronger for J than would

be ideal, but contains some very nice points, especially as to why a reasonable owner should be aware of the encroaching mangroves.] The Adverse Possession (AP) element of “open and notorious” asks whether the notice given to the legal owner would be sufficient notice for an ordinary owner. The primary test is whether or not a person standing on the property would notice.

At first glance, it appears that Jennifer (J) planting mangroves and the resulting roots onto Leslie’s (L) would pass the test of open and notorious. Fifteen feet is a substantial amount of area (even if a large lot, with an extensive yard) that would put a legal owner on notice, without much an extensive search required. Although the lot appears quite big, in the majority of residential settings property boundaries are relatively well-known by the ordinary, prudent owner. Although a owner may not know the exact boundary because of things like (erosion, plant growth) an ordinary owner would not misjudge the property line by fifteen feet.

The next issue is, were the roots visible enough for an ordinary owner to notice upon glancing across the property. Given a significant portions of the roots are above ground, a good argument can be made that an owner would notice them without having to do an thorough inspection. If the roots are growing, an ordinary homeowner would be concerned with the impact on the soil, the impact the roots might have on any nearby concrete or structure (to guard against structural

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damage if the roots make contact). An ordinary homeowner would also be concerned with the impact the root might have on any type of sprinkler system that has pipes underground.

In addition, because Jennifer regularly watered, fertilized and treated and mangroves, she would have presumably been seen at least a couple of times btw 1972 and 1998. Because of all this, it appears Jennifer and her mangroves will meet the open and notorious element.

However several important facts would have to be established to determine open and notorious with more precision. 1.) Were the roots in a shaded area (decreasing their visibility to the naked eye). 2.) the facts state the mangroves had encroached onto Leslie’s property in a fifteen foot wide strip. Whether just the roots had spread, or whether the roots and plants had spread, could make a difference. If roots and plants spread, then Jennifer has a much stronger case….as only a sleeping owner wouldn’t notice trees growing on their property that they didn’t plant.

In Marengo, the court ruled AP wasn’t open and notorious, when an AP was utilizing land below the property line. This case is different in that the use is above and below the ground.

(ii) 2007 Midterm Q1 Student Answer #2: This answer is a little too pro-owner, but it sees some arguments for the other side. I Particularly liked the discussion of policies behind O&N and regarding boundary disputes. We must examine this situation if it meets the open & notorious element of adverse possession which means if any diligent owner would notice the use of his/her land by another party. Primarily we are told that Jennifer’s mangroves take up significant part of Leslie’s lot and that these mangroves are significantly above ground. (Thus we eliminate the Marengo Cave problem that someone couldn’t claim AP because since they were using the underground area of someone else’s property it wasn’t open & notorious)

However, there are several holes in J’s AP with regard to open & notorious. First of all, we’re not sure how large their lots are so a 15 ft wide encroachment might not be noticeable. Furthermore we know that both plots had extensive lawns & shrubs and additional shrubbery. In Leslie’s property, might not send warning signs that someone else is encroaching on her land to assert AP later on. Moreover, while J regularly watered the mangroves she watered them from her side of the property line, so perhaps Leslie was unaware of what she was doing. Furthermore, even if she was aware that J was watering the mangroves, that may just be what good neighbors do for each other, instead of an assertion that J is “openly using” L’s land as her own.

The purpose of having the open & notorious requirement is to punish a sleeping owner and to reward the APor who has a connection to that land. It seems unjust that L who most likely had no idea that J was openly claiming L’s land and using it as her own, would lose this 15 ft strip. Since this is a boundary case it would not be sound policy to rule for J because sometimes neighbors let certain things go so as to have good relations. Perhaps L did not mind the mangroves and liked their presence on her property or maybe she just didn’t want altercations with J.

In the end of the court would most likely find that the open & notorious element was not met simply because L would not really have noticed that J was using her land. Though she might have been able to notice the mangroves (lot size, amount of shrubbery, the fact that J wanted from her side) even if she did, the purpose of this requirement is to punish a sleeping owner and because the mangroves gave no warning to L that someone was openly using her property, it fails to meet that requirement.

(d) Best Student Answers: Fall 1998 Final Exam: The original version of this question was a little harder than what you have here; two proofreaders and I all missed that not everyone would know that mangroves have roots above the ground. As a result, some answers assumed below-ground roots, some assumed above ground roots, and some discussed both possibilities. Interestingly, the quality of the answers seemed not to depend on which assumption the student employed, although I tried to be a little generous

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to the below-ground folks. As it turns out, one of the best answers (the second model) was one of these. Both model answers are quite good.

(i) FINAL EXAM STUDENT ANSWER #1: Open and Notorious: Is it visible and can someone tell that the land is being used? If the roots underground, this would probably not satisfy the open and notorious requirement of AP because then Leslie could not have seen the roots. (Marengo)

Assuming roots are on top of the ground, the common test is visibility on surface of land. Leslie saw that the roots are on top of ground and she saw Jenn watering them and spraying them with fertilizers and insecticides, so she also should have known that there since they were close to the property line they would encroach on her property. However, Leslie could argue that Jennifer always stood on her own side and never came over on Leslie's side to water them. If in Florida, this would probably not be sufficient to put Leslie (assuming she has ordinary prudence) on notice of fact that Jennifer was claiming land as her own.

However, some states require that there must be forms of notice to the community such as possessor's reputation as owner. It would seem here that Leslie reputation as possessor could be upheld if she did not know that these mangrove trees were fast growing and that they would spread out. However, Jennifer could say that Leslie should have known where her property boundaries were and should have said to Jennifer to cut them down or she would have cut them down herself. However, they both never trimmed the hedges.

Also, policy favors Jennifer getting the land because the benefit of AP is the full utilization of the land and Jennifer is fully utilizing land by letting her roots grow onto Leslie's property. Because Leslie should have been aware that these roots were encroaching on property and that they were in fact rapidly growing. Leslie could plainly see, especially because she has an extensive lawn with many trees and shrubs, and she is probably the care taker of the lawn, that Jennifer trees roots were encroaching and this would satisfy the open and notorious element.

(ii) FINAL EXAM STUDENT ANSWER #2: The focus of open and notorious (O&N) is "can someone tell land is being used?" The common test is whether use by possessor visible to one on surface of possessed land. I would argue that O&N is satisfied because after planting them she was out in the open watering and spraying them. She acted as true owner of trees visible to people. She knew roots spread from original location and Leslie with her extensive lawn, with many trees and shrubs knew or should've known (with reasonable inquiry) that roots of mangroves extend far away from tree visible above ground. Marengo Caves held that the statute of limitation does not begin to run until the injured party discovers or should with reasonable diligence have discovered, the facts constituting the injury. Here, Leslie could see the trees (unlike caves in Marengo) and should have determined if roots (like caves) would have extended to her property. Therefore, the defendant therefore is fulfilled because she should have had knowledge of roots.

However, Leslie would argue that J may have watered and sprayed trees she always did so from her own property, she was never openly and notoriously using the property to take care of the trees. She would also disagree with J that the roots are unlike caves, by pointing out that they are hidden underground like the caves, and the trees (like the opening to the caves) is not on her property. Just as Ross wasn't required to determine if opening the caves led underground to his property, L should not be required to assume or determine that the tree has roots extending underground onto her property. And as for knowledge of extending roots because of extensive lawn many trees, maybe L has a gardener and knows nothing about trees! (Courts like to protect innocent, unknowing people!) So L would say didn't know, wasn't visible, so no O & N!

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(5) QUESTION 2: NUISANCE (FIRST RESTATEMENT)(a) Question: Discuss whether, in the following scenario, Mike could succeed in a

private nuisance suit against Alissa in a jurisdiction following the First Restatement. Alissa and Mike own houses on adjoining lots in a residential suburban neighborhood. They both spend a lot of time gardening. Alissa returned from a trip to another state with seeds of the camara, a beautiful little plant that, in the spring, produces large golden flowers and, in the fall, grows bright red seed pods that open on windy days, scattering the tiny seeds. The camara plant is not native to the state where Alissa lives.

Alissa planted the camara seeds along the side of her house facing Mike’s lot, where they grew beautifully. Many of the neighbors commented on how beautiful they looked. For several years beginning the following spring, camara plants appeared in Mike’s lot. At first, he let them grow because they were so pretty, but then he discovered that he was mildly allergic to them (the pollen and seeds caused sneezing and eye irritation and handling the plants gave him a mild rash). After a few years, he discovered that, any place the camara plants grew, his tulips and daffodils stopped coming up. Research revealed that camara roots secreted chemicals that killed the bulbs from which plants like tulips and daffodils grow.

Mike repeatedly asked Alissa to do something to help keep the camara plants off his lot. However, she was unable to control the seeds as the seed pods were bursting. She refused to pull out the plants or to remove the seed pods before bursting, which would have left her with no viable seeds to grow camaras for the following year.

(b) My Comments: This is a fairly straightforward nuisance balancing question, testing your ability to work with the facts provided and to identify missing information that might be helpful The problem was a little different than some of the prior nuisance exam questions in two ways. First, arguably both the utility and the harm here are not very substantial. Second, the problem required you to try to assess the value of aesthetic harms and benefits.

(i) What I Was Looking For: You should have identified both the benefits and the harms and discussed how substantial they were, ideally noting possible alternatives both parties could take to try to limit the harms. (More detail on utility and harm follows below.)You then should have discussed what outcome was likely or at least possible when the fact-finder balanced utility against harm. Both of the final exam model answers contain solid examples of what this might look like. Many students lost points both this fall and last spring for skipping the balancing step or for simply announcing who would win without explanation. Some students listed some or all of the factors the Restatements consider for utility and harm. You received credit if you actually used the factors as part of your analysis, but not if you just provided a list without applying it at all.

(A) Utility: The aesthetic benefits of the flower may translate into (i) an increase in property value for A and her nearest neighbors; and (ii) intangible utility involving pleasure in viewing the flowers, satisfaction from gardening, and possibly reliving happy memories from her trip. Room for lots of discussion as to how substantial any of this is, especially if she used to have other pretty flowers in same spot. Her utility also might be limited if she was able to limit harms to M by planting the camara elsewhere on her lot or inside her house.

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(B) Harms: Seriousness of allergies depends on, e.g., more details about the extent of symptoms (how often do they occur, how long do thy last, can he avoid with gloves or weed killers, can he fix with cheap medicine, etc.) Seriousness of loss of tulips/daffodils depends e.g., on number destroyed, cost of bulbs, availability of alternate flowers he likes, affect on property value. Harm from both sources together might significantly reduce the value to him of gardening and even of the house itself.

(C) Other Plausible Issues to Raise: Responsibility for Third Party Harm: A might argue that all harms are caused by the

plants and she shouldn’t be responsible, but probably more like the flies in Carpenter than the trespassers in Armory Park, and she continues to plant the flowers in the same location knowing what the results will be, so he probably ought to be responsible.

Oversensitivity: This is a significant defense under the other tests where even small harms can produce remedies. Really comes into the First Restatement primarily as a claim there is so little harm, that plaintiff can’t possibly win. Might argue that if one person in 100 million is allergic, even if harm to M is extensive, property value will not be affected and she shouldn’t be responsible under nuisance law.

Elapse of Time Before Lawsuit: Some students argued that his waiting years before suing is evidence that the harm isn’t that great. This is a plausible argument, but you must also leave some time for him to figure out what’s going on (e.g., source of allergy and/or source of harm to bulbs might not be immediately apparent), to tell her, and to see if she’ll try to fix it.

Others Affected/Environmental Harms We briefly discussed that, at least in some states, plaintiffs in private nuisance suits can only raise harm to themselves. I gave some credit for discussion of possible harms to other neighbors, but it shouldn’t have been central to your analysis. Relatedly, M probably can’t rely on environmental damage by the plants to land he doesn’t own (widespread environmental damage might give rise to a public nuisance action or other sanctions by the government). Some students cleverly noted that he could claim any other environmental damage to his own land caused by the plant and that if the plant took root all over the neighborhood, M’s allergies might worsen.

Proper Cause of Action: We discussed invasive plant species in the context of trespass rather than nuisance. There was room for a discussion of whether a nuisance action shouldn’t lie because trespass might be a better cause of action for allowing seeds to cross the property line. (ii) Common Problems:

(A) Statements Inconsistent with the First Restatement Test: You need to know the rule I ask you to use. A number of students lost points for applying one of the other tests we studied instead of or in addition to the balancing test or for citing cases like McCarty that did not apply the test without explanation (see 2d final exam model for example of how to cite McCarty appropriately).

You need to use the test in question to structure your discussion. Some of the midterm students stated the rule at the top of the page and then had a discussion that made no reference to harm or utility or balance. Make the legal tests work for you by using them to frame your discussion.

Policy arguments that are inconsistent with the rule also are unhelpful. For example, the First Restatement is inconsistent with a strong right to use your property the way you want to. In a First Restatement state, A doesn’t have the right to grow the flowers if she

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is creating sufficient harm and M doesn’t have the right to garden without interference if her utility exceeds his harm. Similarly, you need to explain why discussions of norms or Coase or creating sufficient incentives are relevant where the state has already decided what the rule is.

(B) Lack of Intent: Many students incorrectly argued that this was not an intentional nuisance case because A didn’t intend to harm M. As we discussed in class, “intentional” in this context simply means the intent to continue doing the challenged activity after you are aware of the harm. Here, after M complained, A continued to plant the seeds in the same place and took no additional steps to protect M. Thus, this is an intentional nuisance claim.

(C) One-Sidedness/Overstatement: I penalized students who saw almost no arguments for one of the parties. I also penalized students whose arguments were overstated either in terms of the facts that you were given or in terms of their legal weight.

(c) Best Student Answers: Fall 2007 Midterm:(i) 2007 Midterm Q2 Student Answer #1: This answer is structured very well and

contains especially solid discussion of the extent of the harms and of why a court might favor A in the balancing. This was written by the same student who wrote Q1 Answer #2, which demonstrates what it was possible to do on this test as a whole in the one hour allotted. Since we are dealing with the 1st restatement, Alissa can be restricted from growing camaras if the utility of her growing them is less than the harm caused to Mike.

We first must examine the use of the neighborhood, which is residential and people spend a lot of time gardening. Thus Alissa’s growing of the camaras is in sync with the nature of the neighborhood, even though the plants are not native to the state where they reside. People in the neighborhood generally comment on how aesthetically pleasing the camaras are. If Alissa were forced to remove the camaras it seems like people in the neighborhood would be disappointed since these flowers made the neighborhood prettier, perhaps even raising the property value.

Unfortunately for Mike, he is allergic to them. However, it may be that he is oversensitive & that everyone else in the neighborhood experiences no problem form the camara. Moreover one must ask how much does this allergy take away from his interests in enjoying the property. If he’s just sneezing every so often and gets a rash now and then, is it really affecting his property use? Furthermore, how easily can he avoid the allergic reaction to these camaras? If he just has to take an allergy pill then perhaps he would be unable to enjoin. Furthermore, how often Mike did receive this allergy? If it was every so often as opposed to the regular/continuous enjoyment that his neighbors got from looking of the camaras, his case is weakened. Finally he did not complain about the use of these plants until after three years.

Another thing that these camaras do is they kill his tulips and daffodils. While that is rather tragic, it does not specify whether the camaras completely disallow him from enjoying his gardening activities; perhaps he can plant geraniums or roses instead.

I believe that the court would find that the utility of Alissa’s camaras—the fact that they improve the aesthetics of the neighborhood, maybe even raising the property value, and did not go in contrast to what the neighborhood was used for (residing/cultivating etc.)—outweighed the harm to Mike b/c there might be hypersensitivity issues, the harm does not seem difficult to avoid, it does not significantly affect his property interests because frankly he could plant other flowers than tulips/daffodils (which are rather mundane), and because he did not complain about these camaras until years later. Thus Alissa would not be prevented from growing these camaras & wouldn’t have to pay damages because it is 1st Restatement.

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(i) 2007 Midterm Q2 Student Answer #2: This answer contains nice discussions of both harm & utility, which in turn contain points that implicitly go to the balance. However, I would have liked a little more explicit discussion of the balance. Because this is a private nuisance claim under the 1st RS, the gravity of these harms must be weighed against the utility of A’s conduct. So first, the harms that M has against him:

Allergies (physical harm): sneezing and eye irritation and even a rash. This harm occurs simply by stepping outside and being on his own property.

Killing his plants: there is actual research that shows C plant kills flowers with bulbs, i.e. what M has in his garden.

Gravity of harm: I believe that harms are very serious. Standard to determine serious harms is from Carpenter I and they must be “substantial” and more injurious than other activities that are customary to that area. [MAF: Not clear this test applies to 1st Restmt as opposed to 2d, but reasonable points nonetheless.] We would want to know the make-up of the rest of the neighborhood. Is A the only one with these kinds of plants? Is M allergic to other activities of other neighbors? If so, A could use the over-sensitive plaintiff defense. So we would want to know the extent and frequency of his allergies and if any other neighbors of A are affected by the plants.

Overall, the harms are serious because M is affected by the plants only being on his property. He has done nothing wrong to be subjected to the seed pods, so from a policy standpoint it would be unfair for M to endure these harms and allergic reactions just by being on his own property. It severely affects his use and enjoyment of his private property. Also unfair that he cannot grow the flowers of his own choice because of actions of A. (This point can be weakened by A if we know whether other/non-bulb flowers are affected by camara plant; A can show that there are reasonable alternatives for gardening.)Utility of Conduct: There is high social value attached to these flowers, as there is evidence that everyone loved them and how they looked. Even M liked them and allowed them to grow for several years so they could not have been too bad for him. Nevertheless, if one can show that A is the only one in the area who has the camaras, then it is not suitable to have the foreign species of plant in the neighborhood based on the locality. The burden of removing the invasion/harm can be construed as either large or small. A can argue that for her to remove the plant/pod seeds she will be unable to grow them for the next year or ever again and it is unfair for her not to be able to grow whatever she wants on her land, especially after doing so for several years without any complaints.

However, one can also argue that the burden of removing the invasion is not great; there is a clear alternative that will abate the nuisance permanently: PULL out the plants or PICK the seed pods before they explode. It is very clear that the seeds are causing harm and that the harm will stop if the plants are removed. A is acting unreasonable by allowing the flowers to grow and spread each year.

A could argue that she has no control over how the seeds land and cannot be held culpable for acts of nature. However, when it comes to invasive species, M can use general tort liability rule that holds A liable for setting into motion a chain of events that caused harm. If A did not plant these flowers, then M would not have been harmed. She is responsible for causing the physical harms and damage to M’s property (killing of the flowers).

After balancing the gravity of the harm to M and the utility of A’s conduct, I would conclude that M has a very good claim for private nuisance against A. Under 1 st RS, as long as the harm outweighs the utility of conduct, M is eligible for injunctive relief.

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(d) Best Student Answers: Spring 2007 Final Exam: In the original version of the question, A brought the plant from Kenya (Africa). This proved distracting for some students, so I changed it, but you’ll see some references to this in these answers.

(i) Q2: Final Exam Student Answer #1: [Here, the harms and benefits sections are solid, and the additional” Other Questions” section and the long “balance” discussion are very good.] The first Restatement is a balancing test: the harm of Alissa growing the flowers v. the utility of Alissa growing the flowers. All harms and benefits must be summed, and than weighed against each other. If the harm is greater than the benefit, an injunction will be issued. If the utility/benefit is greater than the harm, an injunction will not issue. Harms: Gives Mike allergies; gives M a rash when he touches the plants, though maybe only minimal

interference with M (Seeds are only spread in fall.) Stops M's tulips and daffodils from growing (A's personal enjoyment of flowers over M's

personal enjoyment of flowers.) Maybe an invasive species, is an unreasonable use of this plant in this climate (a stretch if it

can't be shown to do harm other than allergies). Benefits: Neighbor's like

o General benefit to the communityo Probably not an increase in property values, but causes people to like their

neighborhood more, maybe other people too. A likes Personal enjoyment & Right to plant what she wants on her propertyOther Questions/Things that Make this Difficult to Answer: How serious is M's allergic reaction?

o How often does he get the reaction?o Always when he is outside? In his home?

How easily can the plants be controlled in M's yard?o Would wearing gloves mean that M's doesn't get the rash when he handles the plants?o Any cheap medication that M can use to control this problem?

Viable alternative to leaving plants (and allowing them to burst/spread pods) in order to get the seeds for next year?\

o Is the plant only available from Kenya, or is that simply where A brought the seeds from?

o Can she grow the plants inside? Would this satisfy A's personal enjoyment? What do neighbors think of M's flowers? Maybe they like his overall more than A's, but just

like A's camara flower.Balance: (Done by the finder of fact): Seeing the amount of unknown questions, this is a very difficult balance to do, and could in part depend on whether a judge or jury does the balancing. A jury may be more sympathetic to M's claim, b/c many people have allergies and know that while even when they aren't severe, they are a hindrance that people generally like to avoid. In light of this, a jury might think that A's claim to having pretty flowers and even the neighborhood's general enjoyment of the flowers isn't enough to make one person in misery. On the other hand, it's not clear whether this is a problem that M really faces very often. If he only deals with the

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problem on certain windy days in the fall, his allergy problem may be limited to 10-15 days a year (depending on how windy where he lives is). On the other hand, if M has house pets who drag the seeds in or the seeds find there way into the house otherwise, M may face the prospect of dealing with allergies all fall--quite a serious harm, even if the allergies are only mild. While M may be able to take medication for this problem, to impose a financial burden on M (since the 1st restatement doesn't do a damage analysis) of buying medication so A can have her flowers is something a jury or judge would find to be a harm greater that is greater than the benefit (only measured in the grand scale of harms v. benefits).

In the end, it is likely M will be able to get an injunction. M spends a lot of time gardening, so he is likely outside a lot, and likely comes into contact with these seeds quite a bit, meaning that his work as a gardener and his use and enjoyment of his land are being impaired simply so A can grow her flowers. Furthermore, a judge or jury would probably give great weight to the fact that the prettiness (is that a word?) of flowers is purely subjective. And while the neighborhood like's A's flowers, and if they are from Kenya they may be very unique, to say that A's flowers are more prettier and therefore more valuable than M's flowers (tulips and daffodils he can no longer grow) is a judgment neither a judge or jury would likely find fair. The only other way A would win is if the harm to M is so remote, unoften and minor, that the aesthetic value (to herself, her neighbors, etc) of having her flowers is sufficiently outweighs the harms caused to M.

(ii) Q2 Final Exam Student Answer #2: [This is not quite as strong as the first model but contains some solid discussion of harms and a number of thoughtful points about the balancing.] Under the 1st restatement, courts balance the harm and the utility of the activity in question and grant an injunction if and only if the harm outweighs the utility. Here, in the case of a private nuisance, personal harms and general benefits are weighed (like that in McCarty, although the court did not use a balancing test at all but considered the personal harms, smoke, soot, etc in strict liability.)Harms to Mike: Allergies- seemingly localized to his home. This might make the harm worse, he is being subjected to a foreign allergen in his own home (his castle) because of his neighbor. Something she brought is not only reducing the enjoyment of his home but making him literally sick.

Loss of a hobby. Both Mike and Alissa were gardeners, now, not only is Mike allergic to the flowers that might well be everywhere, but his own flowers are dying.

Invasive Species- possibly in the next big seed burst the seeds will spread far off Mike's lawn and then he won’t be able to go anywhere in the neighborhood without sneezing and having allergies. Utility: Beauty of the flowers, Cultural education and variety (people see the flowers and ask questions. Ability to garden (Alissa). Balancing in the mind of the finder of fact: On first brush this seems easy. If Mike is sick and Alissa's plants caused it, it shouldn't matter how pretty those plants are. (Or how rare). BUT, the allergy did not develop until a few months after the first planting. This might be legitimate. So Mike did not sit on his rights by not right away noticing the personal harm. However, it was years before he instituted the suit. If the allergy was not bad then, and he continued to sit on his rights after those months passed, until years later when his plants were dying, maybe the allergies should be taken out of the balancing equation. If the allergies were not bad enough to cause an action on their own, possibly Mike's complaint is really just about the harm to his property (the plants). If this is so, then the finder of fact may decide to use just the harm to the plants, loss of a hobby (from both plants and less so (under this theory) the allergy) should be weighed against the utility. The flowers being beautiful might be a psychic benefit to all who pass by, while Mike's allergy (if considered) is limited. However, when you add the property destruction, the daffodils and tulips, courts might decide to make a bright line rule. If there is any property damage and the

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utility is limited in manner, to something surface without for example economic impact, then the court may say that the harm always outweighs a surface utility like beauty. Protection of property from destruction may cause the court to err on the side of Mike here.

If the court juxtaposed utility with difficulty of getting more seeds, or moving the flowers, the fact that the flowers may be so beautiful as to have become an attraction (need more info here, unlikely unless this is a BIG gardening community, which it may be), than the utility outweighs the harm.

Determination here depends on a strict or loose reading of the utility requirement in the 1st restatement and the possible other facts such as value of beauty (aesthetics), whether the flowers have risen to attraction status, and whether because of the time issue, the court might not consider the allergies as having been not harmful because Mike lived with them and did not bring suit until years later.

C. ASSIGNMENT III: COMMENTS & BEST STUDENT ANSWERS FROM FALL 2002

(1) Descriptions: As is true every year, some of you did quite sloppy work on this part of the assignment. You will spend much of your life parsing statutory provisions; get into the habit of being careful dealing with them. When describing legal authority to a client, remember that a key function of a lawyer is to translate the law accurately and accessibly. Your client needs you to be both correct and understandable.

Some of you made lots of errors in explaining what your statute does. Beware of the temptation to sacrifice accuracy for clarity by oversimplifying the statute. When in doubt, precision is more important. Remember that if you are unclear, the client can always ask you to explain more; if you are inaccurate, the client often will never know until it’s too late.

That said, do your best to write accessibly. One common problem was the use of legal terms of art that the client was unlikely to understand. Legal terms to which law school may have accustomed you are meaningless to many people, or worse, have a common meaning different from the legal one. Be sure to define carefully any terms you are not sure the client will understand.

In addition to using clear language, you can take other steps to make your description accessible to your client. Use introductory paragraphs to provide context for the reader. Try to explain materials in an order that makes logical sense to you; following the format of the statute too closely can hinder understanding. Use examples to illustrate complex provisions. The representation rules in particular are easier to understand in the context of illustrations and examples. Although certainly not necessary, the use of charts can be very helpful. As I noted at the outset, a larger percentage of you than has been true in the past did some or all of these things.

For clarification, I present a short glossary of technical legal terms that many of you misdefined or misunderstood:

Intestate Succession: distribution of property not governed by a valid will. It includes both the property of deceased individuals who did not leave a valid will and, where an individual left a valid will that not dispose of all her property, the property not

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governed by the will. Most of you did not mention the latter situation, which is called “partial intestacy.” The entry “Covered Property” at the top of the grading sheet refers to this issue.

Decedent: the deceased individual. This needs to be defined. Did you really know what it meant before this assignment?

Issue: lineal descendants (i.e., children, grandchildren, great-grand-children, etc.) "Issue" does not include other relatives such as cousins, nieces, or nephews, and is not limited to just children. Also "issue" is a plural noun, so your verbs should use plural forms. Thus, the decedent's issue take (not takes) everything if no spouse survives. Because "issue" itself is plural, "issues" is incorrect when referring to descendants.

Next of Kin: Most statutes contain some reference to next of kin. This is not a self-defining term. It refers to the relation closest in “degree” to the decedent. Degree (unless defined differently by the statute) means generational step; that is, each generation between a person and an ancestor or descendant counts as one degree. To determine the degree of relationship of your kin, you count up to your nearest common ancestor and then back down to the other person. Your grandmother's great-grandchildren (your first cousins once removed) are fifth degree kin: up to mother (1); up to grandmother (2); down to uncle Teddy in Pittsburgh (3); down to Cousin Arlene (who married that very strange man from New York) (4); down to her son Edmund (5th degree). Thus, kin of "equal degree" are the same distance away from you.

Advancement: is a term to describe gifts from a person to his apparent heirs as an "advance" against the eventual inheritance. For example, a widow with 2 children might say to her daughter, Judy, "I will give you $30,000 to go to law school, but I want it to be part of your share of my estate when I die." If she then dies leaving $50,000, $40,000 would go to her boy Elroy, and the other $10,000 to Judy, since Judy was "advanced" the other $30,000. Most states will not treat gifts to apparent heirs as advancements unless a written document establishes that the parties intended that treatment for the gift.

Representation; per capita; per stirpes: these terms refer to methods for divvying up property among a group of relations who all are descended from a common ancestor like the decedent’s issue or brothers and sisters and their issue. In a pure per stirpes (by branch) jurisdiction, property is divided up equally among all the “branches” of the family tree in each generation, even if all members of that generation are deceased. In most jurisdictions, following the Uniform Probate Code, you look to the first generation in which there are living heirs. Each person in that generation who is alive or who is deceased but leaves living issue gets an equal share. The share of a deceased heir passes to that person's descendants in the same fashion. Both these types of inheritance are called representation, because some heirs "represent" their parent in the distribution of property. In a pure per capita (by head) jurisdiction, members of the same generation who are entitled to take each receive the same amount, regardless of which branch they are on.

Two examples will demonstrate the differences.

Example 1 Example 2

A M

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| |B ——C ———— D N ————— O| | | | |E F—G H P Q——R

In example 1, when A dies (where B and C are already dead), in all jurisdictions, the estate is divided in 3 parts, for B's, C's, and D's lines. D takes 1/3 in each case. In representation jurisdictions, however, (pure per stirpes or UPC) E takes B's 1/3 and F and G split C's 1/3, leaving them 1/6 each. In a pure per capita jurisdiction, the 2/3 left over (after D receives her share) is divided equally among the children of the deceased members of D's generation, on the theory that A would not wish to treat E, F and G differently. Thus, they each receive 2/9 of A's property.

In example 2, when M dies and N and O are dead already, a pure per stirpes jurisdiction splits the property into 2 branches, one for N and one for O. P receives N's share (1/2); Q and R split O's share (so 1/4 each). In a per capita or a UPC jurisdiction, you don't divide the property until you come to a generation containing living members. In this case, you divide in thirds for the 3 members of the P-Q-R generation, and each receives an equal amount.

Critique

When critiquing something, give your opinion and defend it. Don't be afraid to play with outrageous suggestions or to criticize. Many of you merely redescribed the major provisions of statute, said you thought it was what people would expect, said that the language was inaccessible, and said the substantive provisions were OK. Perhaps you argued that one or two things were bad without too much discussion. This type of cri-tique satisfies the assignment, but is not too exciting to read and doesn't demonstrate a great deal of thought. If I said "straightforward critique," I meant I thought your work basically was of this variety.

When the best answers criticized a provision, they explored why the provision might have been drafted the way it was. They then compared the policies behind the current statute with the countervailing considerations they believed the statute ignored. You should get in the habit of trying to figure out why something is in place so that any proposed changes can try to deal with its original purpose as well as your current concerns.

Some responses to points many of you made in critiques: when considering the provisions made under intestacy for surviving spouses, keep in mind the number of protections for the spouse that exist outside the statute:

1) Often 1/2 the property owned by the couple will belong to the surviving spouse anyway, even before the operation of the intestacy rules. This is especially true in community property states like California and Texas. If so, the surviving spouse often owns 1/2 of the family home anyway, and part of the decedent's share will likely to return to the surviving spouse as well.

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2) Property held "jointly" automatically belongs to the spouse through the right of survivorship. Many people own the family home this way, so are protected in the event of one spouse's death.

3) Homestead or dower provisions in many states leave a surviving spouse rights in the family house or other real property outside the normal intestacy rules. Check carefully before assuming a spouse is left out in the cold.

4) insurance and pension benefits likely go only to the spouse, and not to other heirs.

Given these arrangements, where a spouse survives, parents or issue of the decedent are likely to inherit substantial amounts of property only if there is a fairly large estate.

You should be aware that there are large differences in the statutes from state to state, particularly as to the amount the spouse receives and to whether remote relatives inherit. On the other hand, every state basically favors spouse and issue, then parents and their issue, then grandparents and their issue.

Many of you wanted to amend the statute to include friends or unmarried cohabitants. To date, no state recognizes an unofficial relationship as a source of rights in intestacy, although non-marital partners have rights in three states:

1) Hawaii allows an unmarried couples who cannot marry to register as “reciprocal Beneficiaries” which gives them some of the same rights as married couples, including intestate inheritance.

2) Oregon allows non-married people to inherit as spouses if they've lived together for ten years and held each other out as man and wife.

3) Vermont allows same-sex couples to enter into “Civil Unions,” which gives them the same rights as married couples.

In practice, I have trouble imagining how you draft a statute to cover unofficial relationships absent some registration system like Hawaii’s and Vermont’s or some longevity requirement like Oregon’s. Otherwise lots people might make claims regarding, e.g., short-term roommates who happened to die. In addition, if you suggest that fact-sensitive inquiries by the court ("closeness", "need", etc.) determine distribution, you should respond to the obvious argument that these inquiries would be much too expensive to undertake, particularly for small estates, and would simply funnel money to courts and lawyers. Of course, provisions that make work for lawyers are in your current best interests... .

MODEL DESCRIPTION #1: COLORADO

When a person dies (a “decedent”) without leaving a will or the will doesn’t includeall the decedent’s property, Colorado’s intestacy statutes determine 1) who may receive this person’s property (the “heirs”) and 2) how much they receive (their “share”). In overview, these statutes 1) place each heir in a defined category, 2) prioritize the categories, such that each category takes its share in order, and later categories may only inherit what remains of the estate, and 3) determine how much each share will be. This description will summarize these rules.

First Category: Spouse: If there is a surviving spouse, that person almost always takes the first share, even to the point where he or she takes the entire estate. For example, if the decedent left no surviving descendants (i.e., lineal descendants at all generations: children, grandchildren,

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great-grandchildren, etc.) and no surviving parents, the surviving spouse takes the entire estate. However, if there is one or more surviving parent (but still no surviving descendants), then the spouse’s share is reduced to $200,000 plus three-quarters of the remaining estate.

The other circumstance in which the spouse may take the entire estate is 1) if there are surviving descendants, 2) if these descendants are of both the decedent and the spouse, and 3) neither the decedent nor the spouse has other surviving descendants from another relationship. Modifications to the third (3) element may reduce the spouse’s share. For example, if the surviving spouse has his or her own descendants that are not of the decedent (e.g., children from a previous marriage or relationship), then the spouse’s share is $150,000 plus one-half of the remaining estate. If the decedent has one or more descendants that are not of the spouse and none of there are minor children, the spouse’s share is further decreased to $100,000 plus one-half of the remaining estate. However, if one or more of the decedent’s descendants that are not of the spouse are also minor children of the decedent, then the spouse’s share is again reduced to one-half of the estate. These three modifications are not applicable if, for example, both the decedent and spouse become parents through adoption. If this occurs, then such children are considered descendants of both parents.

The spousal relationship may be severed by divorce, annulment, or remarriage to another person. In this case, the former spouse has no claim, but the absence of a spousal claim does not affect the status of their descendants.

Second Category: Descendants: Once the surviving spouse’s share has been determined, or if there is no surviving spouse, the descendants take their share of what remains of the estate. An important point regarding who is a “descendant” is that this term is defined broadly, and those encompassed by this term are legally equivalent. For example, all of one’s “biological” children (and grandchildren, etc.) are considered that person’s descendants, regardless of the marital status of the parents. Also included are children born after (but conceived prior to) the decedent’s death. Similarly, adoption will confer the status of “descendant” on the adopted child. In contrast, a birth child given away for adoption is no longer considered the birth parent’s descendant, but may still qualify for a share under a different category.

Among the descendants, the first generation (i.e., the decedent’s children) has the highest priority, each taking an equal share of the remaining estate. The number of equal shares is determined by counting 1) the number of surviving children and 2) the number of deceased children. Only those deceased children that have surviving descendants are counted. The remaining estate is then divided by this number into equal shares, after which each surviving child receives one share. If there are unallocated shares because one or more deceased child was counted but did not receive a share, then the remaining, unallocated shares are 1) recombined and 2) redivided equally and distributed among the grandchildren. Shares continue to be distributed in this manner, one generation at a time.

Third Category: Parents and Their Descendants: Surviving parents may inherit a share if there are neither a surviving spouse nor surviving descendants, or if there is only a surviving spouse. The share allocated to the surviving parents is divided equally among the two of them if both survive, or given only to the one surviving parent.

However, if the decedent was given away for adoption, then only the decedent’s adoptive parents are included in this category. The birth parents, although not included here, may still inherit under a different rule.

If neither parent survives to inherit the remaining share of the decedent’s estate, the parents’ descendants may take a share. Examples of this category include the decedent’s siblings, nieces, nephews, etc. Half-siblings and the like are considered equivalent to full-blood siblings.

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Once the members of this category are determined, the shares are divided in a manner analogous to that used for the decedent’s descendants, described above.

Fourth Category: Grandparents and Their Descendants: If, as above, neither the decedent’s parents nor the parents’ descendants are available, then any remainder of the estate shifts to the decedent’s grandparents, and then to the grandparents’ descendants. Allocation of shares among the surviving grandparents and/or their descendants is also performed in a manner analogous to that described for the decedent’s descendants.

Fifth Category: Birth Children and Birth Parents: Birth children are naturally-born children of the decedent, but that were previously given away for adoption. As mentioned above, these children are not considered equivalent to the descendants of the second category. However, if there remains any part of the estate at this point in the allocation, birth children (or their surviving descendants) may inherit a share if they file a claim within ninety days of the decedent’s death.

Similarly, the birth parents of the decedent (having previously given the decedent up for adoption) are not entitled to claim in the same manner as the decedent’s adoptive and legal parents. However, they (or their descendants) may also file a claim within ninety days of the decedent’s death to take any remaining share of the estate. The birth parents’ claim is superceded by a valid claim from birth children.

Final Category: The State: If, after exhausting all of the above categories, there remains any part of the decedent’s estate that has not been inherited, the State takes this share.

Other Considerations

1) Disclaiming – Any person who otherwise qualifies as an heir may disclaim their share in writing within ninety days of the decedent’s death.

2) Survivorship – To qualify as an heir in any one of the categories, it must be shown that that person survived the decedent by at least 120 hours. Otherwise, that person is considered not to have survived the decedent. An exception is made if such a determination results in the State taking the decedent’s estate.

3) Homicide – An otherwise qualified heir forfeits his or her share if that person had feloniously killed (e.g., murder or manslaughter) the decedent.

MODEL DESCRIPTION #2: FLORIDA (This was a class in California, so they were allowed to do Florida, but not California)

When a person (let’s call him Fred) dies without a will, his property will pass through intestate succession to his heirs. Fred is referred to as the decedent and Fred’s combined wealth, including land, stocks and bonds, automobiles, boats, and all his other holdings and possessions, is referred to as his estate. If Fred is a resident of Florida and has not left a will, the laws of the State of Florida are used to determine which of his family members and relatives will inherit his estate. These laws also set out what portion of the estate that each of Fred’s heirs receives.

Succession in General: The rules for determining who gets how much of Fred’s estate are detailed and specific and must take into account many different possibilities. They first try to give the estate to Fred’s close relatives like his surviving spouse and children, but if this is not possible, the rules search for other relatives and distribute the estate to them. The general order of succession is as follows: (1) to the surviving spouse and children, then (2) to the mother and father, then (3) to the brothers and sisters, then (4) to the grandparents, then (5) to aunts and uncles, then (6) to relatives of the last deceased spouse. This is only a rough guide and it is not completely accurate, but it illustrates how the order of succession operates.

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Lineal Descendents: Lineal descendents are those who have descended by blood. Fred’s lineal descendents are his children, grandchildren, great-grandchildren, and so forth.

Inheritance Per Stirpes: Inheritance per stirpes (literally by stocks) means that an individual share is determined by ancestry and not by dividing equally among all the heirs. For example, assume that Fred’s estate is inherited by his two children Helen and John. They will receive equal shares. If Helen has two children, her children will inherit nothing directly as long as she is alive, but if she is already dead when Fred dies, her two children will inherit her share. Each of Helen’s two children will receive one-quarter of the total and John will continue to inherit his share of one-half of the total.

Categories and Rules for Intestate Succession: To determine who receives the estate, find the first category which contains a person or persons entitled to inherit from Fred. The entire estate is then given to the person or persons within that category. Each person’s share is determined using the rules given within the category taking into account the special circumstances listed at the end.

(1) Fred’s Spouse is Alive (Surviving Spouse)

● If Fred has no surviving lineal descendents, then Fred’s spouse inherits the entire estate.

● If Fred’s surviving lineal descendents are all lineal descendents of his surviving spouse, then his spouse inherits the first $60,000 of the estate and one-half of what is left, and the lineal descendents share the other half of what is left. (Inheritance per stirpes)

● If Fred’s surviving lineal descendents are not all lineal descendents of his surviving spouse, then his spouse inherits one-half of his estate, and the lineal descendents share the other half of his estate. (Inheritance per stirpes)

(2) Fred is not Survived by a Spouse but is Survived by Lineal Descendents

● Fred’s surviving lineal descendents inherit his entire estate. (Inheritance per stirpes)

(3) Fred is not Survived by a Spouse and has No Surviving Lineal Descendents

● Fred’s mother and father inherit his estate in equal shares. If only one of his parents survives, the surviving parent inherits the entire estate.

(4) Fred is not Survived by a Spouse and has No Surviving Lineal Descendents or Parents

● Fred’s brothers and sisters inherit his estate in equal shares and if none, then their descendents (Fred’s nieces and nephews) inherit the shares of Fred’s estate that his brothers and sisters are entitled to. (Inheritance per stirpes)

(5) Fred is not survived by Any Person Identified in Any of the Above Categories

● Divide Fred’s estate into a maternal share and a paternal share in equal amounts. If no one is entitled to inherit the maternal share, then the paternal share is the entire estate. If no one is entitled to inherit the paternal share, then the maternal share is the entire estate.

● The maternal and/or paternal shares are separately distributed in the following order:

(a) To Fred’s maternal and/or paternal grandfather and grandmother in equal amounts. If only one grandparent survives then the whole share to the survivor.

(b) If there is no grandfather or grandmother, then, to the aunts and uncles and the

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descendants of deceased aunts and uncles. (Inheritance per stirpes)

(6) Fred is not survived by Any Person Identified in Any of the Above Categories● Fred’s estate will go to the heirs of the last deceased spouse (let’s call her Gwen). To

determine who gets how much assume that Gwen died intestate, but with Fred’s estate, and use these rules replacing Fred’s name with Gwen.

(7) Fred is not survived by Any Person Identified in Any of the Above Categories● Fred’s estate goes to the State of Florida.

Special Circumstances:

Heirs Born After Death. If an heir was conceived before the decedent died then the law treats the heir as if he or she were already born.

Citizenship. Aliens have the same rights as citizens.

Debtors. A person who owed the decedent a debt will have that debt taken out of his or her share.

Half Blood. Most of Fred’s heirs are likely to be whole blood relatives like his parents and children. However, Fred may have other types of relatives that are related to him through half blood. For example, if Fred has a half-sister (same mother but different father) she will be a half blood relative. If Fred’s heirs include both whole blood and half blood relatives, then the shares of the half blood relatives are half the size of the shares of the whole blood relatives. If all of the heirs are half bloods then they receive whole shares.

Adopted Persons. Once someone has been adopted they are treated as if they were the natural born child of the adopting parents, in other words they become lineal descendants. The adopted person is no longer considered a lineal descendant of their natural parents and does not inherit anything from their natural bloodline through intestate succession. However, adoption of a person by the spouse of a natural parent has no effect on the relationship between the person and the natural parent or the natural parent’s family. Adoption of a child by a natural parent’s spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent. Adoption of a child by a close relative has no effect on the relationship between the child and the families of the deceased natural parents.

Persons Born out of Wedlock. If a person born out of wedlock (let’s call him Bill) is not covered in the section above on adopted persons then Bill is a lineal descendant of his mother and is treated as a natural member of that bloodline. Bill is also treated as a lineal descendant of his father and a member of that bloodline if one of the following three conditions is met:

● Bill’s natural parents participated in a marriage ceremony. It does not matter if the attempted marriage is void or if the ceremony occurred before or after Bill’s birth.

● The fact that Bill’s father is legally his father is established by a court proceeding. This can take place either before or after the death of the father.

● Bill’s father acknowledged in writing that he is indeed Bill’s father.

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MODEL DESCRIPTION #3: HAWAII

A. Some general provisions of the law and definitions

1. Spouses and “reciprocal beneficiaries”. Since 1997, Hawaii law has permitted individuals to designate “reciprocal beneficiaries” who are treated under the intestate succession law exactly as spouses. This law enables same sex domestic partners or others who may be unable to legally marry (for example, siblings) to enter into a reciprocal beneficiary relationship by filing a declaration of intent with the state. The property of decedents so registered is distributed to the surviving beneficiary as if the beneficiary was a spouse. For simplicity, further in this letter, I will refer simply to “spouse” or “surviving spouse” but you should understand that this term always means “spouse or reciprocal beneficiary.”

2. Distribution by “representation.” In a number of scenarios, property is distributed under the IS law according to rules of “representation.” These rules operate in the following way: The amount to be distributed is divided into some number of equal “shares.” The number of shares is equal to the number of surviving persons in the generation nearest the decedent that has at least one surviving member plus any predeceased persons in that generation who have surviving descendants. For example, if the deceased had six children, three of whom (A, B and C) are surviving, and of the three deceased, two (D and E) have living children of their own, the amount to be distributed would be divided into five equal shares. The surviving children (A, B and C) will each receive one share, each share equaling 20% of the amount distributed by representation. The remaining two shares are combined and then divided among the children of D and E in the same manner. If D had three surviving children and E two, each child would receive 1/5 of the amount created by combining the remaining two shares. If necessary (for example, if one of D’s children is already deceased, but leaves a surviving descendent) the process of combining and redividing shares is repeated.

B. Treatment of the surviving spouse: Hawaii, unlike California, is not a community property state, and the surviving spouse does not have any automatic ownership interest in property of the deceased. Under Hawaii’s intestate succession statutes, the spouse is allocated an amount ranging from a minimum of the first $100,000 plus 50% of the remainder to a maximum of the entire estate, depending on the nature and survivor status of the decedent’s parents and descendants. There are four possible outcomes:

1. If (a) the decedent is not survived by any parent or descendant, or (b) all of the decedent’s descendants are also descended from the surviving spouse and the surviving spouse has no other surviving descendants, the surviving spouse takes the entire estate.

2. If the decedent has no surviving descendants, but one or both of his parents survives him, the surviving spouse takes the first $200,000 of the estate plus 75% of the remainder.

3. If all of the decedent’s descendants are also descendants of the surviving spouse, but the spouse has one or more other descendants that are not descendants of the decedent, the spouse takes the first $150,000 plus 50% of the remainder

4. If the decedent has one or more surviving descendants not descended from the surviving spouse, the spouse takes $100,000 plus 50% of the remainder.

C. Distribution of estate to others than surviving spouse: Any part of the estate not distributed to the surviving spouse-or the entire estate if there is no surviving spouse-is distributed in the following manner.

1. If the decedent has surviving descendants, they will take the portion not allocated to the spouse “by representation” as described above. If the decedent has no surviving descendant, but is survived by one or more parent, the parent(s) take(s) the amount not allocated to the

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spouse. If both parents survived the decedent, the remainder is shared equally between them. The inheritance by a parent is subject to a special test intended to prevent inheritance by a parent of a minor’s estate in the event the parent has deserted the child or otherwise neglected certain parental duties.

2. If the decedent has no surviving descendants or parents, and no surviving spouse, the entire estate is distributed to descendants of the decedent’s parents by representation; if the decedent’s parents also have no descendants, then half of the estate is distributed to each of the paternal and maternal grandparents, if living, or, if not, to their descendants by representation. If there are no surviving grandparents or grandparent’s descendants on one of the maternal or paternal sides, the entire estate is distributed to the descendants relatives on the other side by representation. Finally, if the decedent’s grandparents are deceased and have no descendants, then the estate passes to the state in a process called escheat.

D. Special situations: In addition to the general rules given above, a few special situations are worth noting:

1. Adopted children. In general, an adopted child is treated as the natural child of its adopting parents for purposes of IS. However, an adoption of a child by the spouse of the child’s natural parent has no effect on the child’s relationship with its other natural parent.

2. “Simultaneous” death of decedent and “heir.” Special problems can arise when a decedent dies at nearly the same time as a person with an interest in his estate. In the case of accidents resulting in multiple deaths, it can be impossible to know who died first and controversies could ensue over how property should pass. For example, a husband and wife are both fatally injured in a car accident and either or both spouses has living parents or have descendants that are not descendants of the other spouse, the question of who died first can make a big difference to the resulting distribution of the estate. To mitigate some of the controversies that can arise in such cases, the law assumes that any individual that dies within five days after the intestate decedent actually predeceased him. So in the example described, the property of both will pass through intestate succession as though their respective spouse predeceased them.

3. “Half-blood” relatives are treated the same as “whole blood.” For example, an intestate descendant with no spouse or descendants property passing to his parents’ descendants will pass to a sibling sharing only one parent equally with a sibling descending from both of decedent’s parents.

4. Heirs born after decedent’s death. A child conceived prior to the decedent’s death but born afterward is counted as a living heir at the time of the decedent’s death, if it lives five days or more following birth.

5. “Kuleana” lands. A unique feature of Hawaiian law relates to lands originally granted under 19th century legislation to Hawaiian natives. Such lands that escheat to the state are held in a special trust to be managed by the office of Hawaiian affairs.

MODEL DESCRIPTION #4: MINNESOTA

Intestate succession laws provide a means for distributing the property belonging to a deceased person (the “Decedent”) that is not disposed of by a valid will. Thus, intestate succession can be applied when the Decedent does not leave a will, when the Decedent leaves a defective will, or when certain property of the Decedent hasn’t been covered under a valid will. Since the government strongly favors passing property to family members, this mechanism provides distribution to family members having the closest familial relationship

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with the Decedent. Therefore, if a person wishes to make a posthumous grant of property to non-relatives or organizations, it is imperative that he or she has a properly drafted will.

Intestate succession takes effect once the Probate Court deems that the Decedent has property that has not been effectively disposed of by valid will (“Decedent’s Property”, for purposes of this document). From the Decedent’s Property, the court will set aside the family home, a living allowance, an automobile, and up to $10,000 worth of property having sentimental value (“Homestead/Support”, for purposes of this document) for a spouse or children surviving the Decedent. Thus, the “Intestate Estate” consists of the Decedent’s Property less Homestead/Support.

The Intestate Estate is then divided in accordance with the laws of intestate succession. Intestate succession is a mechanism by which property is distributed via a hierarchy based on familial relationship. This hierarchy consists of six tiers. Each tier consists of relatives of the Decedent, with the top tier having the closest familial relationship to the Decedent. The six tiers identified in Minnesota Intestate Succession laws are as follows:

1. Surviving Spouse

2. Decedent’s Descendants

3. Decedent’s Parents

4. Decedent’s Siblings And Their Descendants

5. Decedent’s Grandparents And Their Descendants

6. Next Of Kin

In general, the court will start at the top tier to determine whether there is at least one qualified heir within that tier. To be a qualified heir in tiers 1 and 3, one has to be alive. In tiers 2, 4, and 5, one either has to be alive or deceased with living children or grandchildren of any degree. If there is not a qualified heir, the court will search the second, and if necessary, subsequent tiers to identify qualified heirs. Once a qualified heir has been identified in a tier, the entire Intestate Estate will be distributed to members of that tier in accordance with the distribution, or “Representation”, rules governing that particular tier. While it is likely that more than one tier has living members, a key principle to intestate succession is that only one tier receives the entire Intestate Estate. In the event there are no living family members that fit within the six tiers above, the Decedent’s estate will then pass on to the state, or “escheat”.

“Representation” is the basis upon which the Intestate Estate is distributed within the relevant tier, and can function as a generational hierarchy within the Intestate Succession hierarchy. In Intestate Succession, Representation rules will successively apply to each generation receiving a portion of the Intestate Estate. The basic rule of Representation is that the applicable portion of the Intestate Estate is to be divided into a number of shares equal to the number of surviving children, plus the number of deceased children having surviving children or grandchildren of any degree, of a given person in a given generation (“Intestate Shares”). Thus, if there are two surviving children, and one deceased child having living children or grandchildren, the Intestate Estate will be divided amongst the first generation in three equal shares. Then, in order to distribute the deceased child’s (“A’s”) Intestate Share amongst his heirs, Representation will then apply to A’s children. Suppose that A has three children – one is living, one is deceased having no children, and one is deceased having three children. In this case the number of shares in which to divide A’s Intestate Share by Representation is two. A’s living child then takes one-half of A’s Intestate Share, while A’s deceased child’s (“B’s”) estate takes the other half of A’s Intestate Share. This process then applies for distribution of B’s Intestate

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Share to her children, and continues until the entire Intestate Estate has been distributed to living Descendants of the Decedent.

With the overall tier structure and general processes of Intestate Succession and Representation in mind, the Minnesota Intestate Succession is implemented as described below.

Under the first tier, the court will search for a surviving spouse. The court will also search for living children, as well as offspring of deceased children, of the Decedent with someone other than the surviving spouse (“Other Relationships”). If the Decedent has no Descendants from Other Relationships, the surviving spouse receives the entire Intestate Estate. If the Decedent has living children or grandchildren of any degree from Other Relationships, the surviving spouse receives the first $150,000, plus one-half of the balance, of the Intestate Estate. After the surviving spouse takes his share, the balance of the Intestate Estate will be divided among Decedent’s living children and deceased children having Descendants by Representation, as described in the next paragraph concerning tier 2 distribution.

If there is no surviving spouse, the court will invoke the second tier. At this tier, the court will try to locate living children or grandchildren of any degree (collectively, “Descendants”) of the Decedent. If the court identifies Descendants of the Decedent, it will distribute the entire Intestate Estate by Representation. Thus, the Decedent’s children will be the first generation subject to Representation, with each living child, and deceased child with living Descendants, receiving one equal share of Decedent’s Intestate Estate. The second generation subject to Representation will be the grandchildren of the Decedent by his deceased children. Each of those living grandchildren, or those deceased grandchildren with living Descendants, will receive an equal share of her parent’s Intestate Estate. Representation will then be applied to each successive generation until there are no generations having deceased children with living Descendants, at which time the Intestate Estate will be fully disposed.

If there are no Descendants of the Decedent, the court will search for surviving parents under the third tier. If there are two surviving parents, the entire Intestate Estate will be divided equally between both. If there is only one surviving parent, that parent receives the entire Intestate Estate.

If there are no surviving parents, the fourth tier search will commence. At this tier, the court will determine whether the Decedent is survived by brothers, sisters, or their Descendants, who are the Decedent’s nieces, nephews, grand-nieces, grand-nephews, and so on. If brothers, sisters, or their Descendants are found, the court will divide the entire Intestate Estate among this group by Representation. Thus, the basis for the distribution is the number of living siblings, plus the number of deceased siblings with living Descendants, of the Decedent. As before, Representation will successively apply to each generation until all shares distributed in this tier are to a living person, as opposed to her estate.

If the Decedent is not survived by siblings or their Descendants, the court will initiate the fifth tier. Under the fifth tier, the Intestate Estate is distributed among the Decedent’s grandparents. If there is at least one living grandparent or a living Descendant of that grandparent on both the Decedent’s maternal and paternal sides, the entire Intestate Estate will be divided equally between the maternal and paternal sides, with distribution to successive generations that are offspring of deceased Descendants by Representation. On the other hand, if the Decedent is only survived by paternal or maternal grandparents, or their Descendants, then the one side of the family receives the entire Intestate Estate, subject to distribution by Representation.

If the court cannot locate any grandparents, or their Descendants, the court will conduct its final search under Intestate Succession. Under this sixth tier, the court searches for any blood relative of the Decedent. At this tier, the entire Intestate Estate is equally distributed to those

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having the closest ancestral relationship to the Decedent, however remote. Unlike other tiers, however, Representation does not apply to this level. In this case, the Intestate Estate is divided only amongst the living members of this tier having the closest ancestral relationship to the Decedent.

If no heirs are identified after searching the sixth tier, or if identified heirs do not claim their Intestate Shares, those portions of the Decedent’s estate will escheat to the state.

There are a few relevant limitations concerning claimants should be discussed. First, in order to claim an Intestate Share, persons already born must survive the Decedent by 120 hours, and babies in utero must survive 120 hours after birth. In addition, persons are not disqualified because they are, or are claiming through, non-US citizens.

In addition, some terms relating to family relationships should be defined or clarified. First, an adopted child is considered the child of the adopting parent, and not of the birth parents, unless the adopting parent is the spouse of the birth parent. However, adoption by a step-parent will not affect a child’s rights of inheritance from a deceased parent. Second, half-blood relatives are treated the same as whole-blood relatives. Third, if one is related to the Decedent through two family lines, that person can only claim one Intestate Share. Precise definitions of “child” and rules of kindred can be found under Minnesota family and civil laws.

Further, there are some provisos concerning the amount of the Intestate Estate. Debts owed to the Decedent will not be included in the Intestate Estate, unless those debts were owed by an heir to the Intestate Estate. In that case, those debts will be subtracted from that heir’s Intestate Share.

MODEL CRITIQUE #1: COLORADO

I liked this critique because it discusses both the pros and cons of the provisions on which it focuses. Colorado’s intestacy statutes are an attempt to distribute a decedent’s property in a manner that most conforms to the wishes of a typical decedent, had they actually written a will providing for their devisees. Since these statutes apply to all, certain assumptions must be made concerning 1) to which persons would a typical decedent have devised their property, 2) in what order of priority should these persons take their share, and 3) how much should each share be. Accordingly, the statutes provide for the most typical recipients, such as the surviving spouse and descendants. However, persons in certain common relationships to the decedent cannot take a share, even if they are likely to have been close to the decedent, and more importantly, even if the decedent would likely have included them in their will. In addition, the statutes also incorporate assumptions about the family structure of the decedent and the nature and value of his or her estate. The exclusions of such persons demonstrate a serious shortcoming of Colorado’s statutes.

Affinity Relationships: Most prominent among those excluded from taking a share under intestacy are those that had a “familial” or “affinity” relationship, but no direct legal or biological connection to the decedent. For example, a daughter-in-law cannot take a share, even if she is widowed with no descendants of her own. A more severe example involves step-children. In this case, if the decedent had married a person who had children from a previous relationship, subsequently forming a new “family” with them, these step-children are not eligible to receive an intestate share unless the decedent had legally adopted them. Either of these examples could be considered “descendants by affinity” with respect to the decedent, but the Colorado statutes do not allow either of them to take a share by intestacy.

Both of these examples demonstrate an apparent shortcoming of the intestacy statutes. Barring an acrimonious relationship, it is difficult to imagine that a decedent would not have wanted to leave his or her property to a daughter-in-law, a son-in-law, or a step-child. It is even more difficult to imagine that the decedent would have preferred to leave such property to a

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distant cousin or even the government, both of whom are provided for in the statutes. Therefore, these undesired outcomes resulting from the statutes appear to contravene the supposed policy of intestate succession, which supposedly attempt to distribute property in a manner satisfactory to a typical decedent.

However, extending intestate shares to members of “affinity” relationships may be undesirable or impractical, and therefore the present limitations of intestate succession to a finite number of people, such as spouses, descendants or blood relatives, may have well-established advantages. First, most of the presently eligible persons are easily ascertainable and identifiable, thereby reducing the complexity of what may already be a difficult and emotional process. Second, extending the intestate statutes to include persons such as “in-laws” or “step-children” may create a legal morass of claims. Such designations may be clear to the layperson, but may be ambiguous or even undefined under the law. Furthermore, if these relationships are eligible for an intestate share, it may be uncertain whether others, such as their descendants, may now claim shares through them. Finally, although it is reasonable and typical that a decedent would have devised his or her property to those “closest” to him or her, using such a standard, particularly in the absence of confirmation or evidence, may be beyond the ability of a probate court. For at least these reasons, the present intestate statues may have properly narrowed the scope of eligible recipients.

Guidance for possible suggested changes to Colorado’s intestacy statutes that also overcome these difficulties may already be found in the present statutes. For example, the Colorado statutes, instead of attempting to separately account for all possible descendants of the decedent, simply consider them as commensurate. Thus, the decedent’s natural children, adopted children, and out-of-wedlock children are all considered “descendants” for the purposes of intestacy. Similarly, relatives of half blood are considered the same as those of whole blood. Although the decedent’s actual relationships during life with each of these parties may have been very different, the statutes nevertheless provide for each of them on an equal basis. Following this example, a step-child could also be included as a descendant by marriage – the step-child became a de facto descendant once his or her natural parent had married the decedent. Such step-children would be no more difficult to ascertain or identify than the other descendants, and furthermore are more likely to have been closer to the decedent during life.

Similarly, daughters- and sons-in-law may be classified as descendants using a rule that already exists in the present Colorado statutes. This rule is used when considering the decedent’s parents (or grandparents), since either one or two surviving parents are each eligible to take an intestate share. Therefore, the absence of one parent does not preclude the other from receiving his or her share. In an analogous manner, a daughter- or son-in-law may also become a descendant by marriage, wherein both the lineal descendant and his or her spouse are eligible takers. Furthermore, a surviving member of such a unit would remain a de facto descendant, regardless of whether that person is actually a lineal descendant of the decedent. Divorce or annulment would sever this relationship, as it already does for the spouse of the decedent.

The effect of these suggested changes would strengthen the purpose of the intestacy statutes. At present, Colorado’s rules attempt to distribute property to those likely to have been closest to the decedent, and accordingly, only distribute the remaining property to more distant relatives if the closer relatives are not available. Therefore, it is reasonable to believe that when distant relatives or the government are able to take an intestate share, the less likely such a distribution would have been in accordance with the decedent’s wishes. By classifying sons-in-law, daughters-in-law, and step-children as eligible descendants, property distributed under intestacy is more likely to be fully distributed among those closest to the decedent. Such a result would be in agreement with the policies of intestate succession.

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Statutory Revisions: In January of 1995, among the major revisions to Colorado’s intestacy statutes were those that determined the share of the decedent’s surviving spouse. Prior to these revisions, if the decedent had left only descendants that were also of the spouse, then the share of the spouse was $25,000, plus one-half of the balance of the intestate estate. This share was determined irrespective of any descendants of the surviving spouse that were unrelated to the decedent. The balance of the estate not taken by the spouse, in this case, usually went to the descendant heirs.

Under the revised statute, the circumstances in which the only descendants were those of the decedent and the surviving spouse, the spouse received the entire estate. Even if the surviving spouse had descendants of his or her own, the spouse’s share still increased to $150,000, plus one-half of the remaining estate. This change is reflective of the overall effect of the 1995 revisions, which was to ensure that, in most cases, a large fixed amount was granted to the spouse (from $100,000 to $200,000). This fixed amount may have even comprised the entirety of the decedent’s estate.

However, another 1995 revision reduced the spouse’s share under certain circumstances. Under the pre-1995 statute, if the decedent left no descendants, the surviving spouse inherited the entire estate, even if the decedent was survived by one or both parents. After the revision, the spouses share was $200,000, plus three-quarters of the remainder, possibly reducing his or her share. Therefore, although still acknowledging the primacy of the surviving spouse, the statute appears to provide for the parents when there are no descendant heirs to care for.

In view of the 1995 revisions to the Colorado intestacy statutes, several trends are apparent. Foremost among the trends was that the surviving spouse was given a greater and minimum share of the assets, up to the entire estate, even if there were dependent children. This may have been an attempt to re-center the family around the surviving spouse. In addition, giving most of the estate to the surviving spouse may reduce the total number of receiving heirs, thereby simplifying an already difficult process.

However, the statutes also recognized that the loss of the decedent may also result in the dispersion of the surviving family. This was reflected by its reduction of the spouse’s share if there were either 1) surviving descendants exclusive of the decedent or 2) surviving descendants exclusively from the surviving spouse. The remaining share was then given to the decedent’s descendants.

The effect of these changes appears to balance two policy goals. First, much of the estate was given to the spouse to form a new family. The goal may have been to minimize disruption by re-centering the family around the surviving spouse. However, the entire estate may not have been given to the spouse if her descendants and those of the decedent were distinguishable. For example, if either had children from previous relationships. As a safety net, in these cases the statutes made certain that the descendants received a share separate from the spouse.

Furthermore, it is likely that many decedents who die intestate may be low net worth, either due to their lower income and/or their younger age. Under the revised intestacy statutes, the granting of the fixed amount to the surviving spouse may have ensured that the estate was not fractionated into unusably small portions. Moreover, allowing the spouse to take a fixed amount may also ensure that the decedent’s home, likely to have been their largest asset, passes unliquidated to the spouse.

MODEL CRITIQUE #2: FLORIDA

I liked this critique because it was one of the few to offer specific alternatives to the provisions it discussed. Keeping property within the bloodline is the guiding principle that dominates the detailed rules for inheritance under intestate succession in the State of Florida. The

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public expects that when someone dies without a will, the decedent’s estate will pass to the surviving spouse and their children and grandchildren, and if these do not exist to his or her next closest relatives. The principle of keeping property within the family is a reasonable concept on which to base the default system of property transfer for several reasons: (1) It represents the expectations of the public at large. (2) It has historical roots with accompanying precedents. (3) It provides for the support of the decedent’s legal dependents by leaving the assets first to the surviving spouse and children. (4) It represents the actual desires of a large portion of the population. (5) Because it can be superseded by the execution of a will, it does not have to be a perfect system, fair and just in all situations.

Common sense and everyday experience suggest that it is not infrequent that someone dies without a will, yet he or she would rather transfer his or her worldly possessions to their lover, or close friends, in preference to a distant relation. It is difficult to imagine how laws could be written to establish a system that reasonably identifies the true intentions of someone after they have died without the help of a will. The state does need a default system for property transfer, and the basic framework of intestate succession works reasonably well. However, those cases where the decedent’s actual wishes are not fulfilled, where his or her estate is given to a distant, perhaps estranged relative, and not to someone close, suggest a problem with the current rules.

The State of Florida looks long and hard for relatives of the decedent in order to find someone who will be entitled to inherit the estate. As the relationship between the decedent and those who inherit the estate becomes more distant, each of the arguments for the value of the intestate succession system becomes correspondingly weaker. Cases where the estate is passed to a distant relative are not likely to represent the wishes of the deceased, and such cases may routinely go against his or her actual desires. If the system of intestate succession were modified by truncating the list of distant relatives who are entitled to inherit the estate, the strongest arguments in favor of the system as it stands would remain intact, and it would provide increased incentive for the living to execute a will to see that their true intentions are carried out upon their death.

A specific proposal for the modification of the rules of intestate succession in the State of Florida would be to restrict those who are entitled to inherit the decedent’s estate to include only those persons who are no more that three steps removed by blood. Relationships by blood fall into the following categories when listed by the number of steps removed from the decedent: (1) children and parents, (2) grandchildren, brothers, sisters, and grandparents, and (3) great-grandchildren, nephews, nieces, uncles, aunts, and great-grandparents. This proposal would truncate the list of eligible relatives such that only those listed in the above categories would be entitled to inherit by intestate succession.

Both the established rules and common expectations consider lineal descendents to be different from collateral heirs. Keeping this long-standing distinction intact is worthwhile because providing for the support of the decedent’s dependents is a fundamental goal of the system. The truncation proposal would include an exception that would allow lineal descendents to inherit the estate without regard to the number of steps removed from the decedent. This would have little effect in practice since it is rare that one lives to see their great great grandchildren. On the other hand, there is no good reason to distinguish between different collateral heirs removed, by blood, from the decedent by the same degree. Thus the proposal would lump together all collateral heirs removed by two steps into one group and all collateral heirs removed by three steps into another.

In practice this specific proposal would create four categories and intestate succession would operate, as before, by giving the estate to the members of the first group that contains a person or persons who are entitled to inherit. The details of the distribution of the estate to the surviving spouse and lineal descendents would be similar, if not identical, to the present rules. If

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there were no surviving spouse and no lineal descendents, each of the members within a subsequent group would take an equal share since they are all related to the decedent to the same degree. In this proposal no property would be passed to anyone who is not a living ascertainable person within one of the following categories:

Proposed Categories for Intestate Succession

(1) To the surviving spouse and lineal descendents

(2) To the parents (One step removed by blood)

(3) To the brothers, sisters and grandparents (Two steps removed by blood)

(4) To nephews, nieces, uncles, aunts, and great-grandparents (Three steps removed by blood)

(5) To the State of Florida

This truncation proposal for modification of the default system for the inheritance of property is based on the principle of keeping property within the family, within the bloodline. As the blood of the decedent is thinned in ever more distant relatives, the rationale for their ability to inherit is correspondingly diluted. Cutting off the ability to inherit when the relationship becomes too distant would help solve several problems with the current system: (1) It would provide additional incentive for the living to execute a will so that their property does not escheat to the state. (2) It would reduce the complexity of determining which person or persons are entitled to inherit the estate. (3) It has the potential to reduce frivolous challenges against apparently valid wills by distant relatives, since it provides for only a limited number of persons that would be entitled to inherit the property if the will is found to be invalid. (4) It more closely approximates the intent of the decedent in our current society where non-blood related lovers and friends are often more important than distant relatives.

Prospects for changing the current system by such a radical proposal are dim. Reasons against changing the system in any substantial way include the ever-present legal inertia and general reluctance to modify rules currently in place unless there is a really good reason to do so. Because the rules of intestate succession can be supplanted by the actual wishes of the decedent in a will, there is always a way to circumvent the systems problems and good reasons to modify the system are unlikely to surface. Indeed, an entire class of people with a vested interest in the intestate succession system, those who die without a will, are not around to complain when the system does not operate the way they want or expect it to in their particular situations. Finally, people have the notion that some unknown distant relative will leave them a fortune, much like the notion that they will win the lottery, and so they will be reluctant to eliminate this possibility, no matter how remote, by truncating the line of succession so that only close relatives are entitled to inherit. Rules after death will remain, like those during life, imperfect, not entirely logical, and complicated enough to confuse the ordinary person.

MODEL CRITIQUE #3: MINNESOTA (ADVANCEMENT)

This student chose to focus the entire critique on one provision resulting in the following thoughtful and interesting short essay. Among the net benefits of "advancement" is that the recipient can utilize property that would ultimately pass to him through intestacy without having to wait until the death of the grantor (decedent). For heirs other than the recipient who receive property after the grantor's death, advancement allocates to them more shares of the decedent's remaining property, as the recipient's share will have already been received before the decedent's

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death. Furthermore, advancement provides assurance during the grantor's lifetime that certain intended beneficiaries have actually received his property, without having to compromise the future interests of his eventual heirs. This contrasts with other instruments that leave less property for his heirs (inter vivos gifts), or don't provide assurance that an intended distribution is properly executed (will).

From a public policy standpoint, advancement provides another mechanism that promotes the utilization of what might otherwise be unused property. In situations where a landowner's illness or incapacity may render him unable to care for or utilize his property, advancement allows the owner to immediately designate from his eventual heirs a successor to his property. As the recipient receives title to the property as he would after the death of the grantor, he has immediate incentive to utilize and properly care for the property. In situations where the property may be undesirable, advancement provides that the future heirs of the owner are not unduly penalized for not taking on what might be the considerable burden of maintaining such a property.

Though the advancement statute provides benefits to grantors, recipients and heirs alike, the statute can be a tool for exploitation by unscrupulous recipients. Since the statute allows for advancements to be documented by either the grantor or the recipient, a recipient can induce from an incapacitated grantor what the grantor believes to be an advancement, with the recipient promising to record the act as such, but in turn not record the act as all, and upon death of the owner, keep the property as a gift. He would then receive a greater share of the grantor's intestate property at the expense of his fellow heirs, all the while nullifying the good intentions of the now deceased grantor.

Another potential problem relates to the manner in which valuation of the advancing property is to be determined, especially in cases where the property is realty. As the statute requires that the value of the property be determined at the earlier of two points in time, a property which is advanced to a recipient well before the actual death of the grantor will likely be valued much lower than the fair market value of property which is distributed at the time of the grantor's death. If the recipient heir is to receive an equal value in property as the heirs who didn't receive the advancement, the recipient heir will ultimately receive disproportionately higher portion of the grantor's intestate estate.

Though the intent of the writing requirement of the statute is likely to provide a physical record of the true intent of the grantor, a more effective version of the statute would limit the authorship of advancements to only the grantor. This would restrict the aforementioned attempts at fraud by unscrupulous recipients. Additionally, this would and would provide further administrative relief on the court systems in cases where the true intent of a grantor must be ascertained from opposing documents.

MODEL CRITIQUE #4: SOUTH CAROLINA

This is a very thoughtful critique. It nicely addresses a number of concerns that many of you raised. I particularly liked the discussion of the advantages of community property. The first issue that is apparent upon reading South Carolina's Probate Code is that its language is not very accessible to the average person. While it is written in a fairly straight forward manner, with subject headings and concise paragraphs, the vocabulary used would prevent many lay readers from making effective use of the statute. Terms such as "intestate share," "decedent," "surviving issue," "escheat," and “remote degree”are likely to be unfamiliar and confusing to many people. This is especially true of those with less formal education, since such individuals would find it difficult to make educated guesses about what these terms refer to. It is also challenging for lay readers to understand exactly how property passes, and to whom, when they must keep in mind that "issue of grandparents" refers to aunts and uncles or determine what "those of more remote

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degree take by representation" means. Thus, while the statute may allow for a basic understanding by an educated reader who spends enough time analyzing it, the complex terms and structure of the code makes it fairly inaccessible to the average lay reader. As a result, most people after reading it are likely to seek the aid of an attorney to understand how to apply the statute to their personal situation.

In general, South Carolina intestacy laws are a good way to divide up property because they protect the interests of children, provide more generously for close relatives than for remote ones, and treat equally half blood relatives and whole blood relatives. The provision that gives half of the intestate estate to the spouse and half to the surviving issue (children, grandchildren, etc) is sound public policy, in that it reflects South Carolina's desire to provide for the decedent's children. If the spouse received the entire estate regardless of whether there were living issue, the spouse could exclude the decedent's children and grandchildren through a will, a result that probably conflicts with what the decedent would have wanted. Commonly, fathers and mothers want their children to enjoy the fruits of their labor, such as a house or a business, and to pass this property on to future generations.

On the other hand, when compared to California, South Carolina's Probate Code is less equitable in the way it apportions estates to spouses and children in certain situations. In particular, California's system typically provides that the longer the marriage, the more property the spouse receives and the less the children receive. Whereas, South Carolina favors equal provision of the estate to spouse in children no matter what the situation. The main difference results from California being a community property state, while South Carolina is not. In South Carolina, even if marriage partners treated all their property as jointly owned and equally shared while alive, upon one spouses death, this equity is eliminated under the Probate Code, especially if that spouse happened to hold most of the couple's property in his name. This is because under South Carolina's Code section 62-2-102, the surviving spouse can receive only one-half of his estate if there are any surviving issue. Thus, no matter how long the couple has been married, or how much the surviving spouse contributed to accumulating the deceased spouse's property, half of that property will go to the children, even though they presumably played no part in helping to accumulate the decedent's wealth. This is not only unfair to the surviving spouse, it makes little sense if the decedent must leave half of his estate to a minor child, presumably to be held in trust, rather than providing the whole estate to the surviving spouse who will then care for the child. This could place a severe hardship on a surviving spouse in such situations, especially if he or she had been financially dependent on the deceased spouse and is unable to work to make up for the lost income.

By contrast, under California's system, any property that has been accumulated during the marriage is deemed community property, equally owned by both spouses, and the surviving spouse receives all of the community property upon the death of the other spouse. This is true even when there are children or other surviving issue at the time of the spouse's death. The presumption seems to be that all of the property accumulated during the marriage should be given to the surviving spouse because the couple as a unit owned it and has all the rights to it while either of them is alive. Implicit in this is that the surviving spouse will then use this property to care for any minor children and that the children will eventually inherit their parents' property when the surviving spouse dies. However, it also implies that the children have no right to the property accumulated by the couple until they are both deceased. Thus, the Cal. system seems more fair in giving the property to the parties who most contributed most to its accumulation. It is also more fair in giving credit to a spouse who stays at home to raise children or keep house, thus greatly contributing to the other spouse's ability to earn income, but is not accumulating property in her name. In South Carolina, such a spouse would end up with much less property upon the death of her partner, and its system, therefore, seems less equitable than California's.

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Another reason for the equity of California' system as compared to South Carolina's is that it does retain the category of separate property, which includes anything the spouses may have owned prior to the marriage, and divides it up in a more favorable way to the children. Such property is divided between the spouse and children as in South Carolina, but, in California, if there are two or more children, they receive two-thirds of the deceased parent's separate property. For example, in California, if a man who already had two children and much separate property enters into a second marriage and then dies shortly after, his children would receive two-thirds of his separate property, which is likely the majority of his estate. By contrast, the most South Carolina gives to the children, whether one or more, is half of the estate, and the surviving spouse would be entitled to half of the property even though she did not significantly contribute to her husband's accumulation of property. In such a case it seems more fair that the decedent's children should get more of their father's property than the surviving spouse. This is because they are his flesh and blood, and have been related to him longer than his second wife, and because of the bias in our system that property should eventually end up with a person's children and grandchildren. Furthermore, since the second wife is not their mother, it is unlikely that when she dies any of her property will go to her them. In such a case, South Carolina's system gives the children less than what seems fair and gives the surviving spouse more than what seems reasonable. Thus, when compared to California, South Carolina's intestacy system seems less adept at taking into account the context of a decedent's relationships to his heirs, and therefore, is less equitable in the way it apportions the decedent's estate.

One other notable difference between South Carolina's Intestacy Statute and that of California is how far removed in kinship each statute allows property to pass before going to the State. In South Carolina, the farthest relatives are issue of great-grandparents and, if there are none, then to stepchildren and their issue. If there are no stepchildren or their issue, then the property goes to the State. By contrast, California allows for the property to pass to the stepchildren and their issue, but if there are none, then it can pass to any of a decedent's next of kin that can be found, no matter how remote. If there are not any remote next of kin to be found, then the property actually passes to the in-laws of the decedent and their issue, before it goes to the State. The California statute seems to favor finding someone, anyone, related to the deceased person, even if only related through marriage, before giving the land to the State. This demonstrates a strong preference for family inheritance, even if they are very remote or not blood related. The South Carolina statute seems to favor more reasonable connections between the decedent and the persons who will inherit his or her property, perhaps because this is more akin to how he or she might actually have devised the property in a will. South Carolina's code also results in more income to the State, as compared to California, since there are many cases in which property that would go to more remote relatives under California's code would simply go to the State in South Carolina. While, both schemes seem reasonable, on the whole California's system favors family members over the State and seems to make more sense. This is because it is conceivable that most people, due to the psychological connection to the property that they worked all their lives to accumulate, would prefer some family member to benefit from their property, rather than the State which they grudgingly paid taxes to all their lives.

With regard to South Carolina's provision that closer relatives take equal shares while more remote relatives take unequal shares also makes sense, both from a personal and a public policy perspective. Generally, the more remotely one is related to someone the less intimate the relationship with them is. Therefore, a typical person would want to leave property to a parent or sister instead of, for example, a great aunt or a second cousin. Pubic policy would also favor this scheme, because more remote relatives are not usually economically dependent on each other; cousins, for example, would have their own parents and grandparents whom they could inherit from.

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However, since brothers and sisters are usually have a close relationship, regardless of whether they share both parents, it makes sense for South Carolina to treat the decedent's "half-blood" brothers and sisters the same as "whole blood" ones for inheritance purposes. This provision also fits nicely within the states desire to minimize inequalities among members of the same generation.

Notwithstanding the general soundness of South Carolina's intestacy scheme, there are specific provisions which seem either contrary to what the wishes of the decedent would be or contrary to the most peoples' idea of good public policy. For example, while it seems sensible for stepchildren to take after children and children's children, they should take before parents, brothers and sisters, grandparents and aunts and uncles. While these blood relatives are closer genetically speaking to the decedent, stepchildren-especially if they lived with the decedent-may be much closer emotionally to the decedent. Also, while stepchildren may have the support of both a mother and father who are both living, it could also be the case that the decedent died without a living spouse. Therefore, the stepchild might have only one parent-or none-if the other parent is also deceased. In the latter case, the stepchildren might well benefit more from an inheritance than would parents, brothers and sisters, or grandparents. Public policy should favor distribution of property to those who can use it best and benefit from it most

There are some provisions in South Carolina's intestacy statutes that are ambiguous as to meaning or intent. For example, §62-2-104 requires than an heir "survive decedent for one hundred twenty hours." Presumably this provision is meant to prevent a will of an heir taking precedence over intestacy, for example, when the decedent and spouse die in the same accident. In that case, if a wife only lived for six hours more than her husband, she would inherit her share of the estate. It would then be distributed entirely differently, either by her will or by intestacy. The reason for the 120 hours might be that if one lives for 120 hours, it is likely they will survive. The 120-hour requirement may also reflect the idea that, in the interest of fairness, an heir is entitled to inherit if they live at least that long. The requirement could also be there in the interest of not prolonging the intestacy process.

Finally, one category which is lacking in South Carolina, and presumably in most states, is one that provides for property to pass to domestic partners. The issue is equally valid whether talking about a heterosexual couple who chose not to marry or a homosexual couple who do not have the option of getting married. The difficulty in adding such a category, of course, would be determining the criteria for defining who fits into it. However, this difficulty should not prevent such a category from existing, especially when viewed in light of the number of municipalities that offer domestic partner registries and the increasing prevalence of domestic partner legislation, such as that in California and Vermont, where criteria issues are already being addressed. It is grossly unfair to treat two people who have lived together and worked over the years to accumulate property together differently than a married couple solely because they lack a marriage certificate. Consider a case in which a lesbian couple had a child, and the biological mother was staying home with the child, while the other mother was working to support the family. If the working mother were to die, and assuming she had not legally adopted the couple's child, neither her domestic partner, nor her child, would be given any of her property under the current intestacy system. This is a great injustice to the decedent's partner and child who had been financially dependent on her, as well as to the decedent herself, since her desire in such a case would have been that her property go to those closest to her. Since an important policy issue underlying intestacy statutes is a preference that family members should receive the decedent's estate, including a domestic partner category in intestacy statutes would further this policy by including a very important family class in the system.

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