Estates - Fee Tail Flashcards
1
Q
Recap
A
- An estate is a time capsule of rights over land.
- Prior to the 2009 Reform Act there were three kinds of freehold estate:
1. Fee Simple (including modified fees simple)
2. Life Estate (life interest for a person’s own life or another’s)
3. Fee Tail (land that was restricted in terms of inheritability- entailed) - After the coming into effect of the 2009 Reform Act there is only one kind of legal freehold estate- the fee simple (including modified fees simple- see section 11(2))
- After the coming into effect of the 2009 Reform Act, the life estate exists in equity and is dealt with as a trust under Part 4 of the Act.
- After the coming into effect of the 2009 Reform Act, it is no longer possible to create a fee tail.
2
Q
Fee Tail: A Brief History
A
- The fee tail was designed to keep land in the family name.
- It prevented one descendent from losing the family land in one lifetime.
3
Q
Maritagium
A
- Before 1285 family property would be gifted as Maritagium to a man who was going to marry a daughter of the family.
- Upon his death the property would revert to the daughter and ultimately their heirs (children/issue).
- If the couple had no children, the property would revert back to the daughter’s father and ultimately his successors, thus the property would stay within the family.
- In practice, the courts interpreted the Maritagium as if it were a conditional fee simple.
- Therefore, initially the wife and husband were seen to have a life estate.
- But upon the birth of an heir, this life interest would convert into a fee simple absolute.
- This went against the intention of the Maritagium by enabling the alienation of the property by the couple and thus the loss of the land from the family.
4
Q
Statute de Donis Conditionalibus 1285
A
- To resolve these problems and facilitate a way in which land could be gifted and prevented from being sold out from the family, the Statute de Donis Conditionalibus 1285 was enacted.
- The Statute allowed for the creation of an estate where the grantee “shall have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death…or unto the giver or his heirs, if issue fail”.
5
Q
Fee Tail General
A
- This provided from the creation of the fee tail general.
- This fee tail was entailed according to the rules of heirship that existed at the time.
- At this time, the eldest male child would inherit under what was known as primogeniture.
- If there was no male child, then the female children would inherit in a form of co-ownership called coparcenary.
6
Q
Tenant in Tail
A
- Current holder of a fee tail was known as a tenant in tail.
- The tenant in tail could not prevent the property from being passed on to the heir and only enjoyed an interest in the property for their life.
7
Q
Other forms of fee tail: fee tail special
A
- Fee tail male (restricted the tenant in tail to males only).
- Fee tail female (restricted the tenant in tail to females only).
- Fee tail marital (restricted to marital/” legitimate” children only.
8
Q
In re Elliot (1916) 1 IR 30
A
- Property was left by a testator “to…my son and the heirs of his body (other than…his eldest son)”.
- This was a fee tail special which the court allowed.
9
Q
Alienability
A
- As you might imagine, alienating the interest in a fee tail was not particularly easy.
- This was mainly due to the fact that the interest the tenant in tail possessed had was effectively a life interest.
- They could however alienate their life interest as a life estate pur autre vie. This life interest would last for as long as the tenant in tail lived and would then pass on to the heir under the terms of the fee tail.
- Settled Land Acts 1882-1890 provided some ways around the fee tail (this was also the case with life estates – we will look at these in more detail later)
- Main way around restrictions on alienation was to bar the entail.
10
Q
Alienability - Fee Tail
A
- Transfer as a life estate.
- Use the Settled Land Acts 1882-1890.
- Bar the entail (most common way).
11
Q
Settled Land Acts 1882-1890
A
The Settled Land Acts enabled settled land to be alienated but any money from the sale was to be handed over to objective overseers (trustees of the settlement) who would ensure that all those who had rights over the land (future interest holders) could have rights to the money (or its subsequent investment).
12
Q
Barring the entail
A
- There were obvious problems associated with the fee tail, particularly when a family needed to raise money.
- This resulted in tenants in tail attempting to sell their interest as a fee simple.
- Remarkably, the courts facilitated this.
- There were other policy reasons behind this. Primarily the king did not like the fact that if a tenant in tail committed treason, their land could only be forfeited for their life and then had to be returned to the family. The king thereby had an interest in barring entails.
- Taltarum’s Case (1472) allowed a collusive action (“common recovery”) which would destroy the rights of future tenants in heir.
- This process was properly legislated for in the Fines and Recoveries Act (Ireland) 1834.
- This was achieved through a “disentailing assurance” under section 2 and section 12 of the Act.
13
Q
Disentailing Assurance
A
- Disentailing= removal of the entail
- Assurance= deed of conveyance
- “The disentailing assurance was the mechanism by which a tenant in tail could convey (or transfer) property rights to another and through the magic of the Fines and Recoveries Act the transferee would receive a fee simple estate.” (DL)
- The disentailing assurance could also be utilised by the tenant in tail themselves to transfer a fee simple to themselves.
14
Q
Disentailing Assurance: Conditions
A
- The disentailing assurance had to be done while alive:
- The tenant in tail had to be alive in order to bar the entail as his interest would be lost upon death. - It was not possible to bar the entail if the possibility of issue was extinct:
- If there was nobody alive or conceived who could inherit the tail. - The consent of the protector was required if the tenant in tail was not in possession:
- A protector could be expressly named in the settlement or might be a person in possession of the fee tail currently.
- Often, they would give permission but attach conditions.
- Lack of consent from the protector would lead to the creation of a base fee- this base fee would last as long as the fee tail would have lasted but end when there were no more tenants in tail left. - The disentailing assurance had to be lodged with the High Court within six months of the execution:
- If this did not occur a voidable base fee would be created whereby the present tenant in tail would have lost their interest but future tenants in tail could revive the tail.
15
Q
The Land and Conveyancing Law Reform Act 2009
A
- The fee tail was long subject to criticism. Pearse and Mee described the fees tail as “complex and useless relics of the past”.
- The Law Reform Commission recommended its abolition in 2004. Section 13 abolishes the fee tail.
- Any pre-existing fees tail were converted to a fee simple on the 1 December 2009.
- Section 13(1) prohibits the creation of new fees tail.
- Section 13(3) sets out that pre-existing fees tail will be converted to fees simple.
There are 2 excpetions
