final Flashcards
What language raises a presumption of testamentary intent?
language such as “This is my last will” raises a presumption of testamentary intent, but the presumption is rebuttable.
When is extrinsic evidence admissible for determining a will?
Extrinsic evidence is admissible to show testamentary intent, presumably, lack of testamentary intent.
How may a will be revoked?
A will may be revoked by operation of law, a subsequently written instrument, or by physical act
How do you revoke a will by written instrument?
There must be a present intent to revoke and the instrument must be executed with the same formalities as are required for the execution of a will
Can a holographic will revoke a typewritten, attested will?
If the state recognizes holographic wills, a valid holographic will may revoke a typewritten, attested will
What acts generally are sufficient to revoke a will.
Burning, tearing, obliterating, or canceling a material portion of the will
Under common law the act must be shown to have had an actual effect on the will or its language
Under UPC: words of cancellation must be on the will itself but need not touch any of the words of the will
What is a purging statute?
In a common law state, where a interested witness is involved, a purging statute will not void the whole will, rather it will simply void the interest to the beneficiary who is a witness
What are the requirements for a contract to make a will at common law?
at common law, a contract to make a will need not be in writing unless land is involved, some states require a writing for all contracts to make a will.
What are the requirements for a contract to make a will under the UPC?
Under the UPC, a contract to make a will can be established by (1) provisions in the will stating the material provisions of the contract (2) an express reference in a will to the contract and extrinsic evidence proving the terms of the contract or (3) a writing signed by the decedent evidencing the contract
When does the cy pres doctrine apply?
In a will or trust, if the testator/settlor had a general charitable intent and it is impossible or impracticable to use the gift for the purpose indicated, the doctrine of cy pres allows the court to apply the property to another purpose as close as possible to the original one
What are some of a trustee’s fiduciary duties?
(1) Exercise her powers in accordance with the terms of the trust; failure to do so constitutes a breach of trust
(2) Duty to act prudently, diligently, and in good faith
(3) duty of undivided loyalty to the trust and its beneficiaries
Can a beneficiary interfere with the exercise of the trustee’s discretion in a discretionary trust?
No, unless the trustee abuses her power.
Even if a trustee’s power is absolute, a court will interfere if the trustee acts in bad faith or dishonesty
Can a trustee enter transactions with the trust?
No. This is self-dealing. Absent court approval or a contrary provision, a trustee cannot do this.
What can a beneficiary of a trust do if a prohibited transaction takes place?
The beneficiary can (1) set aside the transaction (2) recover the profit made by the trustee or (3) ratify the transaction
What must the trustee do upon termination of the trust?
Upon termination of the trust. the trustee must distribute the property in accordance with the terms of the trust
What is presumed regarding the cy pres doctrine in states that follow the UTC?
UTC states presume general charitable intent
Do courts give full faith and credit to divorce decrees of the courts of sister states?
Yes, if the sister state had proper jurisdiction and the decree is valid in the sister state
What is the jurisdictional requirement for granting a divorce decree?
the jurisdictional requirement is satisfied if one of the spouses is domiciled in the state granting the divorce
There is a rebuttable presumption that the state granting the divorce is the bona fide domicile of the plaintiff
Does an ex parte divorce decree have any effect on disputes over marital property?
NO, unless the property is located in the rendering state. Otherwise such disputes can only be resolved by a court having personal jurisdiction over both of the parties
A court has jurisdiction to initially enter or modify a child custody order or visitation order if the state (1) is the child’s “home state”, or (2) was the child’s home state within the past 6 months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state. What is a child’s “home state”?
The “Home State” is the state in which the child lived with a parent (or person acting as a parent) for at least 6 consecutive months immediately before the commencement of the proceeding (or the state where the child has lived since birth if younger than 6 months old), disregarding temporary absences
What does the Federal Parental Kidnapping Prevention Act require?
Requires states to enforce a custody order of another state, but only if the state entering the custody decree had home state jurisdiction.
What are the jurisdictional standards of the Federal Parental Kidnapping Act?
They are substantially similar to the UCCJEA
What is the standard that applies in awarding custody ?
Courts will apply the best interest of the child standard
What factors are considered in making a custody determination?
(1) Wishes of the parents
(2) wishes of the child
(3) the relationship the child has with parents, siblings, and others
(4) the child’s adjustment to home, school, and other community, and
(5) The mental and physical health of all individuals involved
When is the preference of a child given weight in a custody dispute?
When they are over 12, given great weight
Under 12 given little weight
What is the tender years doctrine?
The tender years doctrine grants custody of a young child to a mother unless she is proven unfit
It is questionable constitutionally because of gender bias
What are a couple big factor courts (random) to consider in granting custody?
Many Courts grant custody to the primary caregivers
Courts don’t like to split up siblings
Who is vested with the power to manage business and affairs of the corporation?
Directors
Directors can act on this power by majority vote at a meeting which a quorum of directors are present
When will a court not second guess a directors decisions?
A court will not second guess a director’s decision If the directors: (1) manage the corporation to the best of their ability in good faith (2) with the care that an ordinarily prudent person in a like position would exercise, and (3) in a manner that they reasonably believe is in the best interest of the corporation
What is the business judgment rule?
Under the BJR, there is a presumption that directors’ decisions are (1) made in good faith, and (2) in the best interest of the corporation
Who has the burden of proof when challenging a director’s actions?
the challenger
What can a director do to exercise their duty of care?
A director can rely on reports from corporate officers whom the director reasonably believes to be reliable and competent, and corporate outsides as to matters that the director reasonably believes to be within the outsiders professional competence
What does a director’s duty of loyalty prohibit?
A director’s duty of loyalty prohibits the directors from profiting at the expense of the corporation
when is a director self-dealing transaction not set aside?
A director self-dealing transaction is not set aside if (1) the director discloses all of the material facts of the transaction and the deal is approved by a disinterested majority of the directors or (2) shareholders or (3) the deal is fair to the corporation
Does a director who is involved in a self dealing transaction get to vote on the transaction?
No, and it might also invalidate the votes of the directors she controls
In a secured transaction problem regarding self help
first state ____
“If a debtor defaults on a secured transaction the creditor can repossess the collateral”
When can a secured party use self help to repossess collateral?
A secured party can use self help to repossess collateral as long as they don’t breach the peace
Define breach of the peace
Breach of the peace isn’t defined by Article 9. However, repossession over the debtor’s protest usually qualifies
Can a debtor waive the right to redeem collateral?
A debtor can waive the right to redeem collateral only after they have defaulted
(if the security agreement says they waive the right to redemption it is going to be void because it is before default)
Acceleration clauses in security agreements are permissible. However ___
if the debtor offers to pay the entire amount due, the creditor MUST allow debtor to redeem
What happens if a secured party fails to follow rules of article 9?
They are prohibited from collecting on any deficiency if any article 9 rule is broken unless the secured party can show that the breach did not cause the deficiency
(example-security agreement asking for waiver of redemption before default, or not giving back collateral after acceleration clause and they offered to pay in full))
Does a party need to disclose evidence if it has not been made in a discovery request?
A party must provide to other parties copies or descriptions of documents that are in the disclosing party’s possession or control and that the disclosing party may use to support its claim or defense-no need to disclose things relevant to the adverse parties claim or defense absent a request
What can the grantor of an easement do?
The grantor of an easement can limit the grantee’s use of the land
When does the attorney-client privilege apply between communications of a doctor and patient rather than the doctor patient privilege?
If the attorney hires the doctor for the purposes of examining the client then the doctor is an agent of the attorney and the attorney-client privilege applies.
This is true even if plaintiff puts his injury at issue
What are the limits on congress’s spending?
Congress may spend for any public purpose.
A tax measure will be upheld if it bears a reasonable relationship to revenue production
What do commercial suppliers have to anticipate in strict liability claims?
Courts hold that commercial suppliers must anticipate reasonably foreseeable uses of the product even if it is a misuse
Who has standing to challenge a stop of a car on 4th amendment grounds?
Every person in the car
If a stop of a car is unlawful, but the arrest is lawful, will evidence obtained at this time be admitted?
No-fruit of the poisonous tree doctrine
How can intent of parties to carry on as co-owners of a business be shown?
Intent can be implied from the conduct of the partners
What will raise a presumption that a partnership has formed?
the sharing of profits raises a presumption that a partnership has formed
What should you do when analyzing an authority issue
Whenever authority is a rule you’re addressing, always state the full rule for actual and apparent authority
Are partners agents of the partnership?
Yes, every partner is an agent of the partnership and the acts of a partner will bind the partnership if the partner acted with authority.
What is actual authority in a partnership?
Actual authority is the authority a partner reasonably believes he has based on the communications between the partnership and the partner.
What type of authority does a partner have for acts within the ordinary course of business?
If an act is within the ordinary course of business, the partners may confer actual authority by a majority vote
Is hiring an employee to perform partnership business within the ordinary course of the partnership business?
Yes
When does a partner acting in the ordinary course of business not bind the partnership?
the act of a partner in the ordinary course of the partnership business will bind the partnership unless the partner has no actual authority and the third party with whom the partner was dealing knew or received notice that the partner lacked authority
Are partners personally liable for the obligations of the partnership?
Partners are jointly and severally liable for all obligations of the partnership
Will a judgment personally bind a partner who has not been served?
No.
What must a judgment creditor do before they seek satisfaction of the judgment from the partners personally?
They must first seek satisfaction from the partnership and then from the partners personally to the extent that the judgment was not covered by the partnership
What is the Full Faith and Credit for Child Support Orders Act?
The FFCCSO Act holds that full faith and credit must be given to another court’s child support order if the court had jurisdiction over the matter and the parties, and the parties had reasonable notice and an opportunity to be heard.
What does the Uniform Interstate Family Support Act hold?
The UIFSA allows a court to ask another court which has jurisdiction over the child support order, to enforce or modify the order they issued
Can a new jurisdiction modify a custody order if one of the parties continues to reside in the issuing state ?
The FPKPA prohibits a state from modifying a custody order if one of the parties continues to reside in the issuing state and under the state’s laws, the court continues to have and does not decline jurisdiction
What court has jurisdiction over a custody matter if a party moves?
The UCCJEA holds that the court that made the intiial custody determination has continuing, exclusive jurisdiction over the matter until that court determines that neither the child nor the parents continue to reside in the state, or the child no longer has a significant connection with the state and substantial evidence relating to the child’s care, protection, training, or personal relationships is no longer available in the state
When will a court warrant a modification of a custody order?
A court will warrant a modification of a custody order if there is a substantial material change of circumstances warranting the modification
removal of a child from the jurisdiction is an example
If a parent wrongfully removes a child from the jurisdiction will it weigh against them?
Yes. They should ask for modification before and show why such a move is in the child’s best interest
When will a court modify child support?
A court will modify child support if there is a substantial change of circumstances
What is the limitation on congress’s power to investigate?
Congress is limited to investigate on matters for which it may legislate
What must a party show when suing an attorney for malpractice?
(1) the attorney’s negligence and (2) that they would have won without the negligence
What is required to validly conduct a shareholder meeting?
A quorum must be present to conduct a shareholder meeting
What does a quorum require?
If the articles and bylaws are silent, a quorum requires the presence, in person or by proxy, of a majority of the OUTSTANDING SHARES (not shareholders) entitled to vote at the meeting
Ordinarily, failing to raise defects related to service of process in the party’s first answer or motion to dismiss waives the defect. Why will the court allow an amendment?
In some situations, such as the amendment is only a couple days later, and the plaintiff has not yet responded to the motion,
The court will allow it because (1) The federal rules should be construed to do justice as between the parties (2) the rules permit liberal amendments of pleadings when no prejudice or delay would occur. (3) and no prejudice or delay could occur if the court were to allow the motion to be amended
If the issue is: under Erie, whether a state’s choice of law rules are substantive or procedural, what should you state in your rule statement?
“Under Erie, a federal court must apply the substantive law of the state in which it sits but it is free to apply federal procedural law.”
Then say “it is well established by the Supreme Court precedent (klaxon) that choice of law rules are substantive for Erie purposes”
Then: “The federal court must apply the state choice of law rules in which it sits”
Can parties agree to a choice of law provision in a contract?
Yes and the provisions will govern the contract.
exception: If the chosen state has no substantial relationship to the parties of the transaction, and there is no other reasonable basis for the parties’ choice, the choice of law provisions will be invalidated.
what is another example of when a choice of law provision will be invalidated?
A choice of law provision will be invalidated if:
(1) it is contrary to a fundamental policy of a state with a materially greater interest than the chosen state in the determination of the particular issue; and
(2)which under the “most significant relationship” test would be the state of the applicable law in the absence of an effective choice of law by the parties.
If a class member in a “common question” class action does not opt out at first, will they be able to opt out later?
A judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out
Can a person who negligently puts themself in peril be sued by a rescuer if the rescuer is injured?
Yes if the rescuer did not act reckless
If a seller assigns their rights to payment for a contract to a third party, and the buyer knows of the assignment, can the buyer pay the seller instead of the third party?
NO, they could be held liable even if they pay the seller. They must pay the third party
Under common law burglary, when must the defendant have intent?
The defendant’s intent must arise at the time of entry
When is a structure a dwelling?
A structure is a dwelling if it is used regularly for sleeping-it doesn’t matter if there is a store on the first floor-still a dwelling
If someone asserts incapacity as a defense for adverse possession, when must the incapacity have arose?
the party seeking to assert incapacity must have been incapacitated on the day adverse possession started.
If a person promises not to sue on a claim in exchange for something, and it turns out it was a mistake of fact that made both parties enter the agreement, is it valid?
Yes it is still good consideration to support the agreement even if the claim turns out to be invalid.
Are parents vicariously liable for their children’s intentional torts?
NO
However, they can be held negligent if they had reason to know their child would commit such a tort
When may intoxication be a viable defense for a crime?
If the crime required intent and they were so fucked up they could not form the intent to commit the crime
Whether a lease is intended for security depends on what?
it depends on the economic realities of the transaction
A transaction will be deemed to create a security interest rather than a lease if (1)the rental obligation is not terminable by the lessee and (2) at the end of the lease, the lessee had an option to purchase the goods
what remedies are available to a secured creditor after the debtor’s default?
On the debtor’s default, a secured party may repossess and sell the collateral securing the debt
How does repossession and sale affect junior interests?
If a secured party sells the collateral after default by the debtor, all subordinate security interests in the collateral are discharged.
How can a witness’s character for truthfulness be attacked by introduction of a crime?
A witness’s character for truthfulness may be attacked by (1) any felony or (2) any crime, if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement
When does a court have discretion to exclude evidence of a past crime?
If a felony is not one that involves dishonesty or false statement, the court has discretion to exclude it if it fails the rule 403 balancing test (if the probative value of introducing the evidence is substantially outweighed by the danger of unfair prejudice, confusing the issues, etc).
Does a trial court have discretion to disallow impeachment by convictions of crimes involving acts of dishonesty or false statement?
No, a trial court does not have discretion they must admit it.
Can a perjury conviction be too remote to admit?
Yes
When can a court exclude a prior criminal conviction that is otherwise admissible to impeach a witness?
If it fails the rule 403 balancing test (ex-because of its inflammatory nature)
when doing this analyze before the balancing test why it would be admissible otherwise
“felony conviction, not too remote, act of dishonesty/not act of dishonesty so court discretion)
When can a witness be impeached by prior act of misconduct that did not result in a conviction?
A witness may be cross examined as to any prior act of misconduct that is probative of truthfulness (i.e. an act of deceit or lying)
Counsel must have a good faith basis for such inquiry
Can a judge call a witness and examine witnesses?
The court is allowed to call a witness and examine any of the witnesses called by either party. If a judge calls a witness the parties are allowed to cross examine that witness.
Can an attorney impeach a witness with a crime that is probative of truthfulness if the witness has not been convicted?
Yes, if they act in good faith when asking the question
Beware of answers that state they can because the witness was convicted. Those answers will likely be wrong and the right answer will probably be that the attorney acted in good faith when asking.
Can a local or state government set up their own postal service?
NO-this violates the federal postal monopoly-they would need consent from congress
An attorney for the US Dept of Health is fired after expressing her concern that her office has not instated a no smoking policy. what interest does she have?
She has a liberty interest. The court must balance the attorney’s rights as a citizen to comment on a matter of public concern that is not made related to her official duties.
When does a public employee have a property interest in their job?
A public employee has a property interest in their job if they are subject to removal for “cause”.
The employee will need to be given notice of the charges against her that are the basis of her job termination, and pre-termination opportunity to respond to those charges.
What is res ipsa loquitor?
Res ipsa loquitor is appropriate where an injury does not usually occur unless someone was negligent and the plaintiff does not know which of the defendants caused the injury.
Usually not available if more than one person may have been in control of the instrumentality that caused the injury. BUT it is available if someone had the power or control over the site of the injury
In a defamation suit, who will have a qualified privilege to speak on someones professional competence?
A former employer has a qualified privilege. But they cannot be reckless or act with malice.
Is mere regulation of property a taking?
No, and the government will not have to compensate for a mere regulation
(example; requirement for floodlightS)
When will a taking almost always be found?
A taking will usually be found if there is an actual physical appropriation or destruction of a person’s property
When will a regulation constitute a taking?
A regulation will constitute a taking if:
(1) It amounts to a physical appropriation
(2) denies an owner of all economic use, or
(3) unreasonably interferes with distinct investment-backed expectations of the owner
Can a city force landowners to convey interests in their land to the city in exchange for permission to build improvements on the property?
No. These usually violate the 5th amendment takings. clause.
Exception: The city can impose such a requirement if (1) a close nexus exists and (2) proportionality exists
Define close nexus in regards to a takings issue
Close nexus means the government can show that the condition relates to a legitimate government interest
Define “proportionality” in regards to a takings issue
Proportionality exists if the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupational rights
these problems are usually conditions cities require for dealing with permits
Example: City ordinance regarding surveillance equipment because increased patronage “might” increase crime and the surveillance “might” alleviate crime is too speculative
What is required to assign a contract?
To assign a contract, a party must manifest an intent to transfer his rights under the contract to an assignee
Can a contract be assigned orally?
Yes
Can most contractual rights be assigned?
Yes, unless
1.the contract forbids assignment,
- assignment is forbidden by law
- assignment would substantially change the obligor’s duty of risk; OR
- it is a personal service contract where the service is unique
are contracts for unique personal services assignable?
No, however money due under a personal service contract are assignable.
What is an incidental third party beneficiary
One that will benefit from the contract but was not intended by the parties to benefit
they have no rights under the contract
What is a delegation?
A delegation occurs when a party to a contract manifests a present intention to transfer duties under the contract to another party
note-pay attention if assigning a contract right results in delegating the duty to pay
What happens when a party to a contract delegates a duty?
The delegator becomes secondarily liable, as a surety, for performance of the duty if the delegate does not perform
They delegator will not be a surety if a novation occurred.
can a price quotation be considered an offer?
Yes, if given in response to a specific inquiry.
“how much for the Iphone 8? $100.” prob an offer
If there is a unilateral mistake in a contract, will the contract be enforceable?
Yes, unless the nonmistaken party knew or should have know of the mistake.
Once a buyer accepts goods, can he reject the goods for nonconformity?
Generally no, his remedy will be a suit for damages.
Can police with a valid search warrant search persons found on the premises that are not named in the warrant?
Only if they have probable cause to arrest the person, and the search of them is incident to a lawful arrest.
pay attention to if the search happens before the arrest
(example: the woman sleeping in the bed when the police searched her purse before arresting her)
In a wills’ issue, that has specific bequest what should you state as part of you rule statement?
You should state:
“A specific bequest is a gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described”
also any other law regarding the type of property and all that Jazz
Do courts consider bequests of stocks to be general or specific bequests?
Courts usually consider bequests of stocks to be specific bequests of property
What is ademption?
The doctrine of ademption holds that when specifically bequeathed property is not in the Testator’s estate at death, the bequest is adeemed, meaning it fails
How do courts decide ademption issues?
Courts decide ademption issues two ways:
First, a court may apply the objective test, simply whether the property is a part of testator’s estate, and do not consider Testator’s intent.
the second way is the intent theory of ademption which is more lenient, and provides that a beneficiary is entitled to substitute property owned by the testator if the beneficiary can prove that the testator intended the beneficiary to take the substituted property
Under the UPC, what happens if property bequeathed in a will is replaced by different property during testator’s life time?
(ex: A house sold that was bequeathed and the proceeds are used to buy a new home)
Under the UPC, the beneficiary has a right to the replacement property
How should a will’s language be construed?
A will’s language should be construed upon the circumstances and properties as they exist at the time of the testator’s death. (“a will speaks at the time of death”)
What happens if a beneficiary disclaims their interest in a will?
It passes as if they predeceased the testator
If there is disclaimed property, analyze what happens to the property through anti-lapse statutes
Do Anti-lapse statutes apply to Wills or Trust questions?
Anti-lapse statutes apply to wills questions, however it will apply to a trust question in limited circumstances.
What implied warranties apply to contracts for a builder’s sale of new residential building ?
The implied warranty of fitness or quality applies to contracts for a builder’s sale of any new residential building
It holds that the new house to be designed and constructed in a reasonable workmanlike manner and suitable for human habitation
What is a latent defect?
A latent defect is a fault in the property that could not have been discovered by reasonably thorough inspection before the sale.
what is the difference between a grantee taking subject to a mortgage and a grantee assuming a mortgage?
Subject to a mortgage the grantor remains liable
Assuming the mortgage, the grantee becomes liable and the grantor is a surety
How does a grantee assume a mortgage?
Majority rule: The grantee signs an assumption agreement, promising to pay the mortgage loan
- A grantee who does not expressly assume the mortgage does not become personally liable on the loan
- but they can take his land (shrug)
Minority rule: A grantee can impliedly assume a mortgage-(do the analysis where adding the balance of the mortgage to the sale of the property)
What warranties accompany a quitclaim deed?
A quitclaim deed contains no warranties, and is simply a release of whatever interest the grantor has in the property if any.
What is an equitable servitude?
An equitable servitude is a covenant enforced in equity against successors through injunctive relief
Privity is not required.
the person suing will be seeking an injunction not damages
If a defendant is on trial for a crime not involving honesty, can he submit character evidence of his character to be truthful if he is not testifying?
No, because if he is not testifying his character is not at issue.
Can congress compel the president to deploy the armed forces?
No the president is the commander in chief and this violates separation of powers.
Congress can declare war. Not deploy troops to enforce shit.
What prohibits a federal court from hearing a case that is pending in state court?
Nothing unless an abstention doctrine applies.
The primary reason a federal court will abstain from hearing a case is when the constitutionality of a state statute is at issue.
-The court will retain jurisdiction over the case but defer ruling on the state constitutional issue until the state court rules on the case
What are the requirements for class actions under the federal rules?
(1) The class must be so numerous that joinder of all members is impracticable
(2) The case must have common questions of law or fact
(3)The named party's interest must be typical of the class and
(4) Named party must be able to fairly and adequately represent the absent class member
(5) The class action must fall into a 23(b) category (separate flash card)
What are the 23(b) categories for class actions?
(1) Risk of inconsistent results or risk that separate trials would impair rights of all plaintiffs;
(2) Defendant must have acted or refused to act on grounds applicable to the whole class and injunctive or declaratory relief would be appropriate
(3) Common questions of law or fact predominate and class action is superior method of adjudication
If there is a possibility that someone is contributorily negligent you should….
Mention that states that apply pure comparative negligence will simply reduce the amount of damages the plaintiff can recover
If a tort question asks you to determine landowner liability you should state….
A landowner/occupier’s duty to those on their premises requires a determination of the legal status of the plaintiff (trespasser, licensee, invitee)
Then state that most states got rid of the distinction between licensees and invitees, and simply apply a reasonable person standard. But that the trespasser standard still exists.
What are the requirements to establish an attractive nuisance?
(1) There is a dangerous condition present on the land of which the owner is or should be aware
(2) the owner knows or should know that young person frequent the vicinity of this dangerous condition
(3) the conditions is likely to cause injury
(4) the expense of remedying the situation is slight compared to the magnitude of the risk
What is the standard of care owed if there is an attractive nuisance?
the landowner must exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by the artificial condition on his property.
If there is a rescuer problem state…
“No duty is imposed on a person to come to the aid of another absent a special relationship between the parties”
“If a person gratuitously comes to the aid of another, the actor must exercise due care to providing assistance, and must not leave the person in a worse position than she found him”
When must a motion to remand back to state court be filed?
It must be filed within 30 days of the notice of removal
(even if the removal was not timely)
-the only exception is if the reason for removal is lack of subject matter jurisdiction
Are insurance policies admissible in discovery?
Yes, they are part of initial disclosures.
What is the unilateral theory of conspiracy?
Only one party in the conspiracy is required to have general criminal intent
Can a person be guilty of conspiracy if the violated statute is made to protect them?
No. (example: sale of alcohol to minor case)
What is the standard for capacity to make a will?
The standard for capacity to make a will is quite low. One may have capacity to make a will even though one lacks capacity to make a contract.
The law presumes that every person is of sound mind unless the contrary is shown.
When is testamentary capacity measured?
Testamentary capacity is measured at the time the will is executed
Who bears the burden of proof of contesting a will?
the contestant
What must a will contestant for lack of capacity show?
The contestant must show that when the will was executed the testator did not have sufficient capacity to:
(1) understand the nature of his act (that he was writing a will)
(2) Know the nature and character of his property
(3) Know the objects of his bounty(closest living relatives) AND
(4) relate these factors to formulate a disposition of property according to a plan
Who bears the burden of proving undue influence for executing a will?
the contestant
What must a contestant show that is asserting that Testator was subject to undue influence?
The contestant must show that:
(1) specific acts of influence were exerted
(2) the effect of the influence was to over power the mind and free will of the testator AND
(3) the product of the influence was the will or gift that would not have been made but for the influence
Is a party’s opportunity to exert influence and a testator’s susceptibility to influence sufficient to establish undue influence?
No, they must actually exert
What must a will contestant show to establish fraud?
The contestant must show:
(1) there was a knowingly false representation of material fact
(2) The representation was made to induce the testator to write a will in a particular way AND
(3) the testator reasonably believed and relied on the statements in making the will
What is a no-contest clause?
A no contest clause is a clause in a will that states anyone who contests the will wont receive what is gifted to them from the will
They are enforceable in most states. However, the beneficiary challenging the will does not forfeit their legacy if the court finds that they challenged the will in good faith and on the basis of probable clause.
How can a trust be modified?
A trust can be modified by the beneficiaries if all beneficiaries consent and the modification will not interfere with a material purpose of the trust.
Can a court modify a trust due to changed circumstances?
YES under the doctrine of equitable deviation:
At common law, a court may authorize or direct a trustee to deviate from the administrative terms of a trust (including permitting acts that are forbidden by the trust instrument) if the settlor did not know or anticipate the new circumstances and compliance with the terms of the trust would defeat or substantially impair accomplishment of the trust purposes.
If a question looks at modifying a trust due to unanticipated circumstances, determine what interest in the trust is primary and which is secondary. Then what happens under the UTC?
Under the UTC, if an unanticipated circumstance threatens the purposes of the trust, the court will permit modification.
What type of inspections/searches don’t require a warrant or even probable cause?
A search of a parolee’s home even absent probable cause does not violate the 4th amendment if a statute provides for such searches.
What authority does a partner have to bind the partnership in dealings with third parties in the absence of an express agreement defining such authority?
Partners have an equal right to manage the business of the partnership, absent an agreement otherwise.
A particular act within the ordinary course of partnership business must be approved by a majority of partners.
What fiduciary duties does a partner owe?
A partner must account for profits, property, opportunities, or other benefits derived by him in conjunction with the partnership business and must not compete with the partnership
When is a partner dissociated from a partnership?
A partner is dissociated from a partnership upon notice of the partner’s express will to withdraw as a partner
What is an at will partnership?
An at will partnership is the type of partnership created when no definite term or particular understanding is specified
What happens if a partnership continues after a partner dissociates?
The partnership must buy out the dissociated partner’s interest
Does dissolution terminate the authority of a partner to act as an agent of the partnership?
Absent an agreement to the contrary, the dissolution terminates the authority of a partner to act as an agent except for purposes of winding up (wrongful dissolution cant participate in winding up though)
Does a partnership wind up a new contract?
No, new contracts are considered new business and are not appropriate for winding up
What are the rules regarding legal parents and artificial insemination?
The spouse of a woman who gives birth to a child through artificial insemination is the child’s legal parent, unless within 2 years after learning of the child’s birth he commences an action in which it is determined that he did not consent to the assisted reproduction.
what is the rule for custody for parent v. non-parent?
courts favor parent unless it is shown that the parent is unfit.
who is the legal father of a child born during wedlock as a result of the wife cheating?
There is a presumption that the child of a married woman is the child of her spouse.
However, this presumption can be rebutted. Paternity can be rebutted by a preponderance of the evidence in some states and clear and convincing evidence in others.
What happens if a child is left with a third party to rear?
Then the best interest of the child test should apply.
Do majority shareholders owe minority shareholders fiduciary duties?
Generally no. Shareholders are free to act for their own benefit.
Exception: A Controlling shareholder must refrain from using his control to obtain a special advantage or to cause the corporation to take action that unfairly prejudices the minority shareholders
A controlling shareholder has a duty to disclose material information to the minority shareholders
When analyzing a duty of care question for corporations, you should look for….
How long did the discussion take regarding the decision? Did they seek expert opinion? Any reason the experts may be bias?
What is required for a security interest to attach?
A security interest attaches once:
(1) the parties agree to create a security interest, which may be evidenced by the debtor signing a security agreement describing the collateral;
(2) the creditor gives value; and
(3) the debtor has rights in the collateral
What is inventory?
Inventory are goods held for sale or lease
what should you do with the classified collateral in a secured transactions problem?
You should state why the collateral is classified in such a way
Example: this is a consumer good because it is used for personal, family, or household purposes.
Does a buyer in the ordinary course take free of nonpossessory security interests?
A BIOC takes free of non-possessory security interests created by his seller unless he knows the sale violates a security agreement
What is a PMSI?
A PMSI arises when :
(1) a creditor sells goods to a debtor on credit and
(2) retains a security interest in the goods for the purchase price
Does a consumer who buys goods from another consumer take free of any security interests?
A consumer who buys goods from another consumer before a financing statement has been filed, and without knowledge of the security interest, takes the goods free of the security interest