Law School Discussion

Property question

eli250

  • ****
  • 144
    • View Profile
Property question
« on: April 29, 2007, 08:57:02 PM »
What interest does this create?

"Her will devises Blackacre to her nieces and nephew, Amanda, Brad, and Courtney.  The will states: "My three devisees shall hold fee title as joint tenants with the right of survivorship, provided Amanda shall have the sole right of possession for her lifetime."

This violates the unity of possession required to create a joint tenancy, but tenants in common have the same requirement, so what is the interest?

Re: Property question
« Reply #1 on: April 29, 2007, 09:39:16 PM »
It'll depend on case law and the opinion of the court.  In other words, it is a toss-up.

Yes, it violates the unity of possession, so the court can strike down a joint tenancy and have a valid excuse.  In that case a tenancy in common is the likely result.  Since there is the right of possession during the lifetime, that sounds an awful lot like an intent to create a life estate in Amanda.  So the life estate would be the current interest.  All three would have a future interest in a fee simple tenancy in common.  (Reversion/remainder/something else, I'd have to look up the term again).  The survivorship clause would then be ignored.

The court could also decide to make it a joint tenancy with survivorship as well.  The courts don't necessarily hold that tightly to the unity requirements anymore.  They could then decide to either "re-write" the will to ignore the life estate clause to meet the unity requirement, or just allow the life estate and not care about the unity.

Most likely, the court would decide it as a life estate followed by a tenancy in common.  It tends to be a nice default choice when there is ambiguity.  If A, B, and C are still alive, any of them can simply sell their interest in a joint tenancy during their lifetime anyway to defeat the survivorship requirement.

eli250

  • ****
  • 144
    • View Profile
Re: Property question
« Reply #2 on: April 30, 2007, 04:55:46 PM »
Thanks for the detailed response.  I guess there is a good reason that type of fact pattern showed up on an old exam.