PropertyProf Blog

CFP: Wealth Transfer Law in Comparative & International Perspective @Iowa

This just in from Tom Gallanis (Iowa):

Call for Papers

Wealth Transfer Law in Comparative and International Perspective

Friday, September 8, 2017

The University of Iowa College of Law and The American College of Trust and Estate Counsel’s Legal Education Committee are organizing the 7th academic symposium financially supported by the ACTEC Foundation.  The symposium, Wealth Transfer Law in Comparative and International Perspective will be held at the University of Iowa College of Law on Friday, September 8, 2017.  The keynote address will be given by Professor Lionel Smith of McGill University and King’s College London.

Among the objectives of this symposium are:

            (1) To bring together prominent and up-and-coming scholars for the discussion of important issues in wealth transfer law from a comparative and international perspective;

            (2) To spur leading-edge research on wealth transfer law, looking beyond the borders of any one jurisdiction;

            (3) To encourage U.S. professors of trusts and estates to incorporate comparative and international perspectives into their scholarship and teaching; and

            (4) To promote collaborations and exchanges between U.S. and non-U.S. scholars.

Papers presented at the symposium will consist of papers selected from this Call for Papers and papers from invited speakers.  The papers will be published in the Iowa Law Review.

If you would like to be considered to present a paper, please submit an abstract of your paper to Professor Thomas Gallanis by email ([email protected]) by November 1, 2016.  The Iowa Law Review will notify individuals chosen to participate in the symposium no later than December 1, 2016.  Symposium speakers will be required to submit a draft of their papers by August 1, 2017, so that the panel commentators will have sufficient time to prepare their commentary.

Symposium speakers will be reimbursed for their travel expenses (economy airfare, the cost of ground transportation, and up to two nights’ hotel for speakers within North America and up to three nights’ hotel for speakers from beyond North America).  Speakers will be invited to dinner on the evenings of Thursday, September 7, and (for speakers staying Friday evening) Friday, September 8. 

Breakfast and lunch will be provided to speakers and attendees on Friday, September 8, courtesy of the ACTEC Foundation.

Questions about the symposium or this call for papers should be directed to Professor Gallanis at the email address above.

 

Wen on Chinese Land Sales and American Property Law

Wei Wen (University of New England) has posted How American Common Law Doctrines May Inform Mainland China to Achieve Certainty in Land Sale Contracts (Asian-Pacific Law & Policy) on SSRN.  Here's the abstract:

This paper explores one of the most significant problems confronting Mainland China in relation to contract and property law today, which is, whether or not written form is mandatory for land sale contracts. In practice, Chinese courts have delivered contradictory cases in relation to contractual form. Some courts regard the written form as being mandatory and therefore no contractual remedies are available to enforce oral land sale contracts. In contrast, other courts hold the opposite view that oral contracts may still have some degree of contractual effect. This results in uncertainty throughout Mainland China, which may cause injustice and unfairness to claimants and may undermine the authority of the law and the courts. This paper argues that the solution to the problem is to propose a legal reform initiative to articulate that written form is mandatory for land sale contracts. This initiative will end the contradictory cases and ensure claimants are treated equally at law in this particular matter.

In order to support and underpin the legal reform initiative, this paper utilizes American doctrines to enrich the Chinese literature and draws on the American experience (particularly Professor Lon Fuller's and Professor Karl Llewellyn's analysis) in establishing that written form is desirable for land sale contracts in Mainland China. This is through a comparative law approach known as functionalism that examines the similarities and differences of the compared jurisdictions.

"Property Law" at law school

I didn't take a course in "Property" in my New Zealand LLB; rather, I took courses in "Land Law" and "Equity and Succession".  Some thoughts:

* The basis of Land Law was the Torrens system and issues around indefeasibility, though of course estates in land, the relationships of landlord/tenant and mortgagor/mortgagee, easements, adverse possession, etc were part of the paper.

* Equity and Succession covered trusts, wills, and equitable jurisdiction (though in NZ, common law and equity are in a single court system - and some would say are "fused", at least to some extent).  This also considered realty vs personalty.

* Personal property and intellectual property were generally part of optional courses.

What this means is that the rule against perpetuities was part of Equity, rather than "Property" (and in New Zealand we have a Perpetuties Act, which generally makes things much easier).  It seems to be an obsession of US teachers (and students) of "Property"!

The failing of this system, however, was the lack of an overview of "Property" as a whole.  It is one thing to learn about land registration, estates in land, trusts, and so on - but quite another to miss out on "what is property?" (particularly given my earlier comments on the lack of graduate law courses in property).  On the other hand, that has had the benefit of discovering Rose, Heller, Gray, Merrill and Smith by reading them, rather than being taught them - which might be the best way to learn.

But what do the Americans think - is the rule against perpetuities here to stay in the first-year Property course?  Does it belong somewhere else? Will the first-year Property course itself remain in its current (varied) forms?

Thomas Gibbons

Beyond Blackacre: Blueunit?

Carol Rose has written:

“What is the symbol for property? It is easy to answer that land is that symbol…but why is land – immovable, enduring land – the central symbol for property?  Why not, say, water?  Water, after all, is in fact the subject of important and valuable property rights, and, indeed, concerns about water can substantially modify the rules about land.  If water was our chief symbol of property we might think of property rights - and perhaps other rights – in a quite different way.  We might think of rights literally and figuratively as more fluid and less fenced-in; we might think of property entailing less of the awesome blackstonian power of exclusion and more of the qualities of flexibility, reasonableness and moderation, attentiveness to others, and cooperative solutions to common problems.  Those qualities are in fact even a part of landed property – as in nuisance law – however little the symbol of landed property may suggest”. (Carol M Rose “Property as the Keystone Right?” (1996) 71 Notre Dame L Rev 329 at 351 – the New Zealand way of referencing!)

We might ask – is Rose’s view of land itself too monolithic a symbol?  “Land” means very different things in different contexts and at different times.  “Land” includes vast areas of farmland; various types of estates and interests; smaller blocks; and sometimes, buildings.  We might pause to reflect that the common example of “land” is a piece of land known as Blackacre.  But, why Blackacre? Why not Greenlease or Blueunit?  In fact, developments in the law of subdivision and land use, and the widespread development of “common interest communities” mean that Blueunit is – now and in the future – likely to be a far more important area for study than Blackacre.

For what of Blueunit?  The bundle of rights attaching to Blueunit will be very different from the bundle of rights attaching to Blackacre.  The type of exclusionary rights attaching to Blueunit will be different to those applying to Blackacre.  Simple factors such as the proximity of Blueunit A to Blueunit B; the fact that Blueunit A and Blueunit B may share a boundary that is a party wall; the fact that Blueunit A and Blueunit B may have to share payment for repair of a roof of a building which is not part of either of their but of other units within an apartment building; the fact that Blueunit A and Blueunit B may vote together or against each other in their owners’ corporation or body corporate.  The owners of units may be neighbours in much more of a sense than the owners of "acres".

Blueunit needs much more attention.   

Thomas Gibbons

Don't Sell This Home. Ever.

Here's a property story from my local paper.  Heiress Emma Watts grew up in creepy-looking mansion in Richmond, Kentucky.  During her life, the local university (Eastern Kentucky U.), repeatedly attempted to purchase the property from her.  The relationship between Emma and EKU deteriorated, and she refused to sell.

Here's the propety angle: When Watts died in 1970, her will specified that the mansion could never be sold. She left a trust fund to pay for basic upkeep and, for four decades, no one has touched the building or its furnishings. The will reads:

(The trustee) shall have no power or authority to sell or in any manner hypothecate any of my real estate located in Madison County, Kentucky, or any of the furniture, furnishings, linens, china, silver, glassware, books, ornaments or other tangible personal property located in Elmwood at the time of my death. . . .   It is my primary testamentary intention to preserve my residence, “Elmwood,” and to maintain it in its present condition, in so far as is possible, for the benefit of my cousins, Margaret Kilgore Cope, Millard Lewis Cope, Jr., and Margaret Parhan Cope.

Yet, the estate's trustee and Watts' remaining cousins recently deduced that while Elmwood could not legally be sold to the university, they could donate it.  In return for the gift, EKU plans give the estate $400,000 to cover the cost of recent improvements.

This seems problematic on many levels. Most obviously, given the context, the "donation" seems to violate the testator's intent. Also, If the cousins were so eager to monetize the property, I'm surprised they didn't make a restraint on alienation argument or push to diversity the trust holdings under duty of care. 

Steve Clowney  

Shepard on Perpetuities Rules

Scott Andrew Shepard (John Marshall Chicago) has posted Which the Deader Hand? A Counter to the American Law Institute’s Proposed Revival of Dying Perpetuities Rules on SSRN.  Here's the abstract:

Encouraged primarily by a fluke in federal estate and gift tax law, more than half of the states have either effectively or entirely abolished their rules against perpetuities in the past two decades. The American Law Institute, deeply troubled by this development, has adopted for its Third Restatement a proposed rule against perpetuities that would essentially prohibit conditional gifts to continue for the benefit of parties born more than two generations after the transferor.

The ALI’s efforts are misguided. The rule against perpetuities was the product of a legal, political and social age very different than our own. It was designed in large part to address concerns, such as inalienability conditions, that do not effectively exist in modern law, either because the evolution of property structures has dealt with these problems by other means, or because changes in political and social structure have drained the problematicity from the concerns. While some of the old concerns do remain, in modified form, the RAP provides a poor response to them. It offers a medieval barber’s amputation saw where the job demands a modern surgeon’s scalpel. Though both may save the patient from the illness, the scalpel will do a more exact and reliable job, with far less collateral damage.

This article demonstrates where the ALI went wrong, and fashions the scalpel required to deal with modern iterations of dead-hand control and related problems.

Ben Barros

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Merrill on Waste and Melms v. Pabst Brewing Co.

The most recent issue of Marquette's alumni magazine has a fascinating article by Tom Merrill (Columbia) on Melms v. Pabst Brewing Co. and the doctrine of waste.  A must read for anyone who teaches the first-year property course.

Ben Barros

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Impediments to Rebuilding in Japan

I had the great good fortune of having my colleague Ken Port, Director of William Mitchell's Intellectual Property Institute and Japanese law scholar-extraordinaire, visit my Comparative Property Rights seminar this week.  Besides some very interesting historical information regarding Japan's adoption and adaptation of the German civil law system in the 19th century, we focused on some unique features of Japanese property law that may make recovery and rebuilding in Japan more difficult than it would be otherwise.

One impediment arises from the Japanese version of concurrent estates.  Japanese law recognizes one version of co-ownership of property, which is without precise parallel to any of the estates recognized in the Anglo-American common law.  Each co-tenant has the right to use the property in proportion to her share, but no co-tenant can alter the property without the permission of the other co-tenants.  Moreover, there is no right of survivorship among co-tenants; the deceased tenant's share passes by will or through intestacy. 

The problem with this form of co-ownership in post-tsunami Japan should be immediately apparent.  Co-owned property cannot be altered without the agreement of all of the co-tenants.  Therefore, rebuilding cannot take place until the co-tenants reach agreement.  In the tsunami stricken regions, even if the property itself can be identified without boundary markers and in a land physically altered by the tsunami, locating all co-tenants is likely to be extremely difficult if not impossible.  Many co-tenants are, unfortunately, likely dead; their interests must be distributed through will (often destroyed with the home) or through intestacy.  Locating heirs may be difficult if not impossible, since many heirs may also be dead, and their heirs must be located.   After that nearly impossible task has been completed, all of the interest holders must reach agreement on whether, and how, to rebuild or attempt to sell.

In the United States, governments faced with insurmountable coordination problems and transaction costs might cut through them by exercising the power of eminent domain.  Although Article 29 of the Japanese Constitution authorizes the government to take private property in return for just compensation, the ability of the government to exercise that power is severely limited compared to the United States, both legally and normatively.  It is limited legally because civil courts in Japan lack the contempt power, so they lack a means of enforcing their rulings.  Therefore, unlike in the United States, in Japan courts cannot send armed agents of the state to enforce an eviction order. 

More importantly, normatively, there is deep opposition to the exercise of the eminent domain power in Japan -- much deeper than in the U.S.  Consider, for example, what happened when the Japanese government tried to build Narita, the main airport serving Tokyo, by using eminent domain to expel inhabitants of a small village.  The plan met with widespread, and sometimes violent opposition, not only from those displaced but from those the airport was intended to serve.  I quote from Ken's book to describe the level of opposition :

The airport was supposed to open on March 30, 1978. . . . Hurling Molotov cocktails and driving a flaming vehicle through the perimeter of the airport, [protesters] briefly occupied the completed control tower.  They proceeded to destroy most of the air traffic control equipment and delayed the opening of the airport for two months. . . . . Until the early 1990's, Narita Airport appeared to be under armed siege.  The entire airport was surrounded by unclimbable fences, lookout towers and armed police in full riot gear.

During the decades of protests, 3 policemen and several protestors were killed. 

In other words, the exercise of the eminent domain power in Japan is legal, but often socially unacceptable.  Therefore, to rebuild after the tsunami, Japan may have to undergo something much more difficult and more fundamental than just changes in law; it may have to undergo a change in norms as well. 

Mark A. Edwards

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Teaching the Rule Against Perpetuities

Over at Prawfsblawg, Dave Fagundes has a post outlining the debate over teaching the Rule Against Perpetuities.  Although the post and the comments are a thoughtful contribution to this topic, I do take issue with one small bit of Fagundes' argument.  He writes:

There are some plausible reasons to be skeptical that the RAP belongs on a modern property syllabus.  First, many states have abolished the RAP by statute, so it’s not even law in many jurisdictions.  Moreover, the RAP is complex enough that teaching it well takes, I’ve found, at least four full class-hours, and given that property is often hard enough to cover (at least if you have only four credits to do it), this time could be allocated to other issues that people may find more instinctively interesting or important. 

The notion that the RAP takes four class hours to teach needs to be challenged - it sets up a false choice between not covering the rule at all or sinking an entire week into the abyss of medieval times.  For example, here's a great post by Mary Sarah Bilder on how to teach the RAP in one hour.  The easiest way to save time on the RAP is to give students problem sets to do as homework (as opposed to doing them in-class).  The reading in the future interests section of most property textbooks is pretty light, so the additional work isn't much of a burden.   

For my part, I think teaching the Rule Against Perperuities in first year property remains important.  It conveys, like no other subject, that the law is actually quite difficult and takes a lot of work to master.  I see too many students who think that being a lawyer resembles being a elementary school librarian - you just need to mosey through the shelves, find the relevant case, and present its clear rule to the client.

Steve Clowney

Strand on Inheriting Inequality

Palma Joy Strand (Creighton) has posted Inheriting Inequality: Wealth, Race, and the Laws of Succession on SSRN.  Here's the abstract:

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues for attacking it. Finally, the article proposes two changes in our laws of succession to address this contemporary manifestation of White advantage and Black disadvantage. First, the article explains how civil rights considerations support existing proposals that inheritances be taxed as windfall income to those who receive them (as are lottery winnings currently). Second, the article identifies a need for revising intestacy law to provide heirs with clear title to assets, especially homes belonging to families of modest wealth whose wealth is primarily the value of those homes.

 

Ben Barros

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Bayern's Conveyance Interpreter

I've been worried for some time about computers taking over; here's more evidence of it....

Shawn Bayern of Florida State University has a web program that is a "conveyance interpreter" that diagrams grants of estates ("To A for life, but if he becomes a lawyer, then to B for 21 years" and so on). The program uses a "context-free grammar" to understand the language of the conveyance, and then it generates an image that maps out the resulting property interests. Shawn borrowed the style of the images from diagrams that Andrea Peterson, his Property professor at Berkeley, used in class. In fact, Shawn wrote it when he was a property student.  

I've been playing with it some this morning --- and I have to report that it's pretty darn cool. Just in time for the start of the new year. This could be the new teaching tool of the season! Hours and hours of fun just waiting you and your students.

For instance, at right is the diagram Shawn's program drew for the grant "to A for life, then to B and her heirs if B survives A."  The "conveyance interpreter" is available here.  

The fact that we're one step closer to our jobs being taken over by computers is a story for another time.

Now, Shawn, where's the program to evaluate the rule against perpetuities?

Al Brophy

Salzberg on De Donis

Kenneth Salzberg (Hamline) has posted De Donis on SSRN.  Here's the abstract:

For many hundreds of years, starting at least in the 12th Century, many owners of land granted the land to new owner 'and the heirs of his body' - or some similar form of grant. The grantors continued to do this notwithstanding very substantial changes, over at least two centuries, in the law’s understanding of the effect of such grants. Part I provides an historical and jurisprudential analysis of those grants. Part II attempts to explain why so many land owners continued to make such grants, seemingly at about the same rate, throughout the 200 year period of those substantial changes.

Ben Barros

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Humbach's Estates and Future Interests Tutorials

From John A. Humbach at Pace:

Free Online Tutorials:  Estate System and Basic Future Interests for first year Property

Many regard the estate system and basic future interests as intricate and tedious. Indeed, for many law students these subjects are the hardest thing they do in their first year.

To help with this, I have developed two online tutorials that are absolutely FREE: The Estate System and Basic Future Interests. They are available without charge over the internet to anybody who wants to use them.

 

The tutorials present the traditionally “difficult” estates material in a steady progression of easily absorbed bite-sized portions. Numerous student users at my school have told me that the lessons provide a relatively quick and painless presentation of these subjects. Yet, the treatment is also thorough.

 

The two tutorials, along with a set of online “drill” questions (also free to all),  not only provide students a helpful learning supplement and review but they also let the professor shorten and even (if desired) potentially eliminate the class time spent on estates and future interests. There is also an optional free online proficiency test (I require my students to attain 90% proficiency, far higher than I have ever achieved, on average, using traditional teaching methods alone.)

 

I do not make money on these online tutorials and do not ever expect to. My time spent in creating them is amply repaid just knowing that students benefit from using them. My goal right now is to make them more widely known and utilized.

 

I urge you to try the online tutorials for yourself and to recommend them to your first-year students.

 

The tutorials and exercises can be found at my professorial website.

 

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Davis and Brophy on Family, Property, Will and Trust in the Antebellum South

Stephen Duane Davis II (Law Clerk, U.S. District Court, Northern District of Alabama) and our own Alfred L. Brophy (UNC - Chapel Hill) have posted The Most Esteemed Act of My Life: Family, Property, Will, and Trust in the Antebellum South on SSRN.  Here's the abstract:

This paper combines an empirical study of probate in Greene County, Alabama, one of the wealthiest counties in the United States in the years leading into Civil War, with a qualitative examination of property doctrine and ideology at that time. The data address three key themes in recent trusts and estates literature. First, what testators did with their extraordinary wealth; in particular, how they worked to maintain property within their families, and especially how male testators were suspicious of loss of their family's wealth through their daughters' marriages. Second, the testators used sophisticated trust mechanisms for both managing property and keeping it within their families. In the antebellum era, Americans celebrated the ways they harnessed technologies, from the steam engine to the telegraph and printing press, to create wealth and improve society. This study reveals that trusts should be added to that list of technologies that assisted in the creation and management of wealth. Finally, the data reveal the salience of enslaved human property, often managed through trusts after their owners died and also frequently divided between family members, to the maintenance of family wealth.

While some in the United States at the time, including some jurists, as well as politicians and novelists, questioned the desirability to our country of inheritance, the Greene County data show an extraordinary devotion to maintenance of family wealth. The findings in 'The Most Esteemed Act of My Life' invite further study in other places in the South, as well as in the North, to test the extent to which the existence of wealth (particularly a wealth based on human property) led to different patterns of bequest from those seen among some of our nation's wealthiest individuals at critical period of American history.

Al has some further comments on this very interesting article over at the Faculty Lounge.

Ben Barros

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Restricting Use of Property From Beyond the Grave

The NY Times has an interesting article on the problem of how to deal with restricted gifts to charities as times change.  

The story in Trinity’s case is a common one for these rifts. An economics professor (whom I don’t know) complained to the Connecticut attorney general’s office that money meant to support his endowed position was being misused. What had been $750,000 some 30 years ago had grown to $9 million. That was far more than was needed to pay one professor, so the college proposed using some of the excess income to pay for scholarships. The professor cried foul. . . .

Iris J. Goodwin, associate professor at the University of Tennessee College of Law, said a fund set up to buy typewriters 100 years ago should still buy typewriters today, even if there was little need for them. Most colleges would probably use the funds to buy computers, but doing so would violate the bequest, she said.

Few would challenge something like this, since typewriters are nearly obsolete. But when money is, say, for the study of Sumerian civilization, there is no legal reason not to finance it, even if the restricted endowment has grown to $30 million and there are only four students.  

I've been thinking about this issue in another context recently.  It seems to me that the trend in Wills & Trusts is to try to honor donor intent above all else.  I'm not sure that makes sense -- I think that honoring donor intent is the right thing to do in the vast majority of circumstances.  But we restrict property owners' ability to use their property during life all the time when there are important policy reasons to do so.  I'm not sure why we shouldn't do the same after death.

UPDATE:  I've had some e-mail correspondence with Iris Goodwin, and she makes the good points that (a) these types of donations are often important sources of funding of counter-majoritarian ideas, and (b) that it is hard to come up with any objective standard for when it is appropriate to depart from donor intent.  I'm sure these points will be familiar to those of you who are more up on T&E issues than me.

Ben Barros

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AALS Donative Transfers Section Panel

The Wills, Trusts and Estates blog has a post about the Donative transfers section panel, which may be of interests to many propertyprofs.  Info on the Property section panels will come in a future post.

Ben Barros

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Harding on Perpetual Property

Sarah Harding (Chicago Kent) has posted Perpetual Property on SSRN.  Here's the abstract:

This paper explores the emergence of perpetual property in a number of discrete areas of property law: the longevity of servitudes in historic and environmental preservation, the ever growing time span of intellectual property rights, the disappearance of the rules against perpetual interests, and the temporally unlimited reach of cultural property claims. While the demise of temporal limitations is itself worthy of recognition and will be the focus of a significant part of this paper, my primary interest is whether these changes tell us something about shifting cultural attitudes to the institution of private property. If it is the case, as a number of prominent sociologists have argued, that an exploration of social attitudes toward time is indispensable to an understanding of our current cultural conditions then exploring temporal limitations in property law will presumably help us better understand what Professor Radin has called the cultural commitments of property. This topic is particularly compelling when one considers that the emergence of perpetual property, with its assumption of stability and permanence, has occurred at a time when speed, flexibility and impermanence are dominant features of our current social conditions. The prevailing conditions in society, even a single generation into the future, are likely to be so different from today that long-term control of property seems anachronistic and paradoxical. So why is it that in an era of rapid technological change we are more willing to tolerate perpetual property interests?

Ben Barros

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Lehavi on Globalization of Land Laws

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Universal Law of the Land on SSRN.  Here's the abstract:

Are we witnessing the gradual globalization of national land laws, which have traditionally been considered to be the paradigm of legal idiosyncrasy, by virtue of their reflecting place-specific society, culture, and politics? This Article offers an innovative analysis of the conflicting forces at work in this legal field, basing itself on an historical, comparative, and theoretical study of the structures and strictures of domestic land laws and of current cross-border phenomena that dramatically affect national land systems.

The central thesis of this Article is that, irrespective of our basic, normative viewpoint regarding the opening up of domestic land laws to the forces of "globalization," we must come to terms with the particularly difficult institutional and jurisprudential constraints that are involved in undermining the local basis of land laws. Thus, if we wish to systematically succeed in intensifying cross-border land law rules, we need to construct more comprehensive supra-national institutions, prevent normative over-fragmentation within each legal system, and pay close attention to local-specific interplays between law, politics, economics, and culture.

Ben Barros

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Tate on Testamentary Freedom

Joshua C. Tate (SMU) has posted Caregiving and the Case for Testamentary Freedom on SSRN.  Here's the abstract:

Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the number of older individuals who require long-term care, and some children and grandchildren are bearing more of the caregiving burden than others. Recent econometric studies, not yet taken into account in legal scholarship, suggest a tendency among the American elderly to bequeath more property to caregiving children. A competent testator, rather than a court or legislature, is in the best position to decide how much care each person has provided and to reward caregivers accordingly. Law reform, therefore, should focus on strengthening testamentary freedom while ensuring that caregivers are adequately compensated in cases of intestacy.

Ben Barros

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Defeasible Estates in the News!

A school renovation project was put in jeopardy when 100-year old deeds surfaced showing that part of the relevant property had been granted for school playground purposes only, otherwise to revert to grantor's family.  The best quote, from the counsel for the title insurance company that didn't find the deeds and ended up on the hook:  "I would have to say, in my 30 years in this business, this is the first time I've seen a right of reverter anywhere but in a law school exam."

Ben Barros

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