On wills and alienability

Hi all,

I'm interested to know what limits (if any) O'ism would set for devising wills. Should people be legally
permitted to devise their wills in anyway they so choose?

For instance, how would O'ists regard the "fee tail"? The fee tail is an inherited land estate that the
owner cannot sell or otherwise alienate, but that must pass to the owner's children. Fee tails are rare and
limited today because they lead to market inefficiencies, encourage a class society, and they prevent heirs from doing whatever they want with their inherited property. Would O'ists legally permit the fee tail?

Thanks,
Jordan

Post 1

Wednesday, May 5, 2004 - 3:20pm

"Land entail" as I have usually heard it called, was actually, during feudal times, a mandatory government measure and the only way to bequeath your property to anyone other than the king. It was the monarchs' and nobles' way of preserving a landed aristocratic society.

You do pose an interesting question, though: what if someone wants to pass his property to his heirs in this way? Based on my own very rough thinking on this subject I think the issue really boils down to the fundamentals of property rights: you're really not a property owner unless you enjoy all the benefits that implies, including the use and sale of that property. In that sense, someone who has inherited property subject to entail really does not own it; in fact, it is his deceased ancestor who is posthumously exercising the right of sale. And since dead people don't really have rights, we should not allow benefactors to write entail into their wills.

None of this should be taken to mean, in any way, that the state should confiscate inheritances and estates. Unlike entail, inheritance does not assign property rights to the dead. I don't know if this is how the law really interprets it, but as I see it, when you draw up a will, you are stating that your last living act will be to give your property to some inheritor(s). This is just a certain application of the right of property, and as such, it is absolute.

(Edited for spelling)

(Edited by Andrew Bissell on 5/05, 8:43pm)

Post 2

Wednesday, May 5, 2004 - 5:22pm

Jordan, Andrew,

This is an interesting topic. Not something I've really thought about so this is all "off the cuff" so to speak. For the most part I'm inclined to agree with Andrew, but I think that a property owner ought to be able to make inheritance provisions in his/her will conditional. So for example Person W could leave property to his son X on condition that it subsequently be passed to X's child Y. But beyond that, I don't see that W has the right to make Y's inheritance conditional on it then being passed down a further generation to Y's offspring Z. That could probably be done using other existing legal mechanisms (for example trusts), in which case the entail mechanism could be done away with. Otherwise, I guess I would say limit it pretty severely.

I don't see that the set up as I have outlined would constitute the deceased posthumously controlling the property, as by that logic so would the will itself, though I am open to persuasion if anyone disagrees :-)

MH

Post 3

Wednesday, May 5, 2004 - 6:53pm

           Today you can place that land in the care of a Trust for your decendants. Trusts are technicaly the property of the people it was set up in trust for I believe. This stops the whole dead person owning it from beyond the grave problem. The lawyers incharged with the trust are incharge of the land in accordance to the rules set down in the will. Its like setting up an entity to manage the property you leave behind. Same can be done for other assets like cash or stocks. This is to stop your stupid decendants from doing anything you think would be crass like sell your family estate or paun the family jewls for cocaine cash.

          One of the importaint goals I have is to establish a 'Home' for my family (my decendants). A nice large hunk of fertile land to call our own that we can always go back to if times get hard. Personal safety net. and I would rather that my decendants not auction the land for penny's and screw themselves and the coming generations out of the safety net. Although I wouldn't be around to have a hooten say in wither its a good idea, my ego's interest is in leaving a long lasting legacy. Nothing really practical beyond that.


Regards,

Eric J. Tower

Post 4

Thursday, May 6, 2004 - 10:05am

Thursday, May 6, 2004 - 10:06am

Thank you all for your responses. Here's the problem I'm having. If we allow the devisor of a will to assign future conditions to her land, then we necessarily restrict the devisee who is subject to those future conditions. Deductively, some parties may not always do what they might want with their own land. Someone will be restricted. The question really is: How, when, and whom do we restrict?

Today, devisors can place all sorts of restrictions on their property: who gets it; what people may and shall not do to it. Everytime the devisor places the restriction, some devisee is subject to it.

Andrew's point that dead people don't have rights is good one. I just don't know how to impliment it. Property law gives dead people (and unborn people for that matter) all sorts of rights. It's very confusing if we take these rights away.

(Andrew, as law student I learned that "land entail" is less accurate than "fee tail" because technically no one owns land, but rather an estate in land. A fee is a type of estate. A tail describes the particular disposition of that estate. Accuracy is of paramount importance in property law.)

Jordan

Post 6

Thursday, May 6, 2004 - 2:53pm

Accuracy is of paramount importance in property law.

Yes it is, my brains nearly oozed from my head attempting to keep the accuracy level that our teacher wanted when I took a course on it.

It was a nightmare.

~E.

Post 7

Thursday, May 6, 2004 - 3:26pm

Jordan,

I just read up on this today (I'm a Law student in England) and found a few points that may be of relevance to your problem, though it does seem that our laws may have been slightly different to yours, plus our government got rid of fee tail by Act of Parliament in 1996. Before 1996 it seems our courts had long taken against the fee tail (since at least 1472) precisely because of the restriction on alienability and sanctioned a rather marvellous method of barring the entail which became known as common recovery: the donee's (devisee's) lawyer or other accomplice would lay claim to the land on the basis of a false title, the donee of the tail would not contest his claim, resulting in the lawyer recovering a fee simple, and then conveying the title back to the donee (in other words a complete and total subterfuge :-)). I don't know whether anything similar exists or could be developed over there?

Again this may be different over there but my property law text continually refers to the donee as a "tenant in tail", in other words they are not regarded as fully owning the property. In that case the donator (devisor) is still regarded as the owner, and the tenant in tail is restricted by the will of the donator as a tenant would be restricted by rules set by a landlord.

MH

Post 8

Thursday, May 6, 2004 - 3:13pm

Yup. It can really be a nightmare.

Just want to say sorry for posting twice. I tried to edit the first post. Couldn't. Couldn't delete it either. Still trying to get used to this forum's format. Very strange that I could neither edit nor delete.

Jordan

Post 9

Thursday, May 6, 2004 - 6:04pm

In Houston, Texas, we don't have land zoning and never have had it. Developers, instead, will buy land, develop it, and then create a home owners' assocition onto which they will assign certain property rights. These rights will generally be decided before any of the lots are sold. They put limits on aesthetic aspects of the property, which prevent people from building in certain ways. They might require fences to be maintained, and give the home owners' association the power to prevent house paint color from being changed without authorization, and prevent some types of buildings being put on the property.

The associations work well, in my opinion. When people buy property, they know what the limits are on its use. People don't have to worry about property sold in such a way, being commercialized, and the government is not involved, except to enforce these types of contracts. I would hate to see them disbanded.

Craig Haynie (Houston)

Post 10

Thursday, May 6, 2004 - 6:05pm

Just want to say sorry for posting twice. I tried to edit the first post. Couldn't. Couldn't delete it either. Still trying to get used to this forum's format. Very strange that I could neither edit nor delete.

When you get 10 Atlas points, you won't be moderated, your text will be posted immediately, and will be able to edit after posting.

Craig

Post 11

Friday, May 7, 2004 - 9:05am