Property law legal explanatory memorandum on the historical and modern day fee tail estate.

Baring the entail.

The conversion by the tenant in tail of an estate tail into a fee simple. The former methods of achieving such a conversion were by suffering a recovery or levying a fine. Since 1883 it is achieved by a dissent ailing deed. The official assignee in bankruptcy is empowered to be the entail: Bankruptcy Act 1988.

Protector of the Settlement.

The person without whose consent a tenant in tail cannot bar the entail except as against his own issue. The consent of the protector is also required by the tenant in base fee who which to enlarge his estate into a fee simple. The Fines and Recoveries act 1833 established the office of protector.

Statute Law.

Statute de Bones Conditionalbus (1285)

This gave the fee-tail statutory recognition and the intention of the grantor was of paramount importance.

Fines and Recoveries Act (1834)

This abolished the old method of barring entails. It introduced a procedure, which involves the execution by the tenant in tail of a disentailing assurance, which is a deed of conveyance purporting to transfer the fee simple estate pertaining to the land. Such has to be enrolled in the High Court office within 6 months. (S.39)

S.15 stops a tenant in tail from utilising a disentailing assurance.

S.32 requires the protector of settlements consent in order for execution of the deed to be fully effective. If consent is not obtained a base fee will be developed and not a fee simple.

S.16 and 33 allows the holder of a base fee to create a fee simple in two ways: by a fresh disentailing assurance or the holder may wait for protectorship to end.

S.37 recognises a holder of base fee may buy out immediate fee simple remainder of reversion and such is free of all claims by issue in tail reminder/reversion men.

'Anderson argues this statement disincentives the creation of fee tails'.

Statute of limitations (1957)

S.19 of holder of the base fee has no entitlement under the original entail his possession of land for 12 years after the end of protectorship can bar claims of those entitlement to the land on the determination of the fee-tail.

Conveyancing Act (1881) it provides that phrases 'in tail' for a fee tail and 'in tail male/female for a fee tail special may be used.

Succession act (1965)

S.95 (1) this abolished the fact that you could leave an estate tail without any words of limitation and it therefore provides that an estate tail may only be created by the use of the words of limitation permitted if a conveyance inter vivos. E.g. Person to whom land being conveyed ('to A') and words of limitation, i.e. Delimiting or defining the estate being conveyed.

Case Law.

Re Elliot [1916] a fee tail valid where testator left land 'to ... my son and heirs of his body (other than my eldest son)'

Bank Of Ireland v. Domvile [1956]- the disentailing assurance does not have to be in any particular form as long as it would have been sufficient to convey the fee simple if the grantor had been entitled to that estate.

Bankes v. Small [1887]- a person holding a base fee cannot remedy his title by executing a disentailing assurance under the 1834 act.

Wilds Case [1599]- if A has no children when he makes his will the words " and hid children" were construed as words of limitation and A took a fee tail. The theory was that giving A a fee tail was the only way the testator could have intended to benefit A's children though A could always prevent this by baring the in tail. If however A did have children living when his will was mad the words " and his children" were construed as words of purchase and A took jointly with all his children living at the time of the testator's death.

Shelly's Case [1581]- in certain situations a person will be entitled to an estate of inheritance even though the disposition under which he takes the land omits the usual words of limitation and purports to give an estate to his heir. The rules set out by this case is that such dispositions will operate to pass a fee simple/ tail notwithstanding the literal meaning of the term used.

Law of Fee- tail.

Nowadays this system of conveyance/ estate is very seldom used in practice and therefore the old legislation on it as well as famous cases serves only historical importance now. I see the system as having very little advantage to our law system and the Law Reform Commission also viewed in a similar way. They recommended that it was serving no purpose but having said that they did not recommend its abolition as it is doing no harm and some people may wish to use it from time to time. It is also the view of the commission, that the creation of a base fee, if the entail is bared, should not be registered in the High court as it is excessive and a new system of registering the disentailing deed in the Land Registry or on the Registry of Deeds should be formed.