General Laws

Question 1

Where is a will probated?

Answer 1

A will is probated in the Circuit Court that sits within the city or county where the decedent had a known place of residence

There is a rebuttable presumption that moving into a nursing home does not change the place of residence.

Question 2

What principles control the validity of a contract to make a will?

Answer 2

A contract to make a will is controlled by the same rules and principles and is enforceable as other contracts (offer, acceptance, consideration)

Question 3

What is the available remedy for breach of a contract to make a will?

Answer 3

Specific performance

Question 4

Requirements of a valid will:

Answer 4

It must be in writing and signed by the testator. The testator must sign or acknowledge the will int he presence of two competent witnesses, who are present together at the same time. The two witnesses must “subscribe the will in the presence of the testator”.

Question 5

Requirements for will if NO self-proving affidavit:

Answer 5

If there is no self-proving affidavit, the proponents will need to present testimony verifying the authenticity of the signatures and establishing the requisites for due execution. The bank officers may also need to testify as to the testator’s capacity and intent.

Question 6

When are “terms of art” enforceable in a sales contract?

Answer 6

They are enforceable where the meaning of the term can be found in a usage of trade

Question 7

When may late-delivered goods in an installment contract be rejected?

Answer 7

An installment contract authorizes the delivery of items in separate lots over time. Late-delivered lots can be rejected only if the late delivery “substantially impairs” the value of the installment.

Question 8

What remedies are available to a buyer that has accepted non-conforming goods?

Answer 8

A buyer that has accepted non-conforming goods may keep the goods and recover damages “for any loss” resulting from the breach, including lost profits.

Question 9

What must the judge do when a party requests that witnesses be excluded from the courtroom?

Answer 9

In general, the court is required, on motion of either attorney, to exclude the witnesses to be called. But there is a statutory exception that allows a complaining witness to remain in the courtroom.

Question 10

What is the standard for probable cause?

Answer 10

Probable Cause exists where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, would lead a reasonable person to believe that a crime has been committed, and the arrestee is the one who committed it.

Question 11

What is the test for when a “show-up” procedure is overly suggestive?

Answer 11

A “show-up” identification procedure is not overly suggestive when the witness has sufficient time and ability to look at the suspect and is not pressured into identifying someone.

Question 12

When and how must motions to exclude evidence be made?

Answer 12

Motions seeking to exclude evidence must be raised in writing before trial by motion filed and notice given to opposing counsel not later than seven days before trial in circuit court.

The circuit court is empowered, in its discretion, to still permit these types of motions to be made at trial. If the motions are untimely, the issues are waived.

Question 13

Is it necessary that a victim ACTUALLY SEE a firearm for defendant to be convicted of using a firearm in commission of a felony?

Answer 13

No! It is not necessary that the victim actually see a firearm to convict for using a firearm in the commission of a felony — this could be proved by circumstantial evidence.

Question 14

What are the tests for cruelty, constructive desertion, and adultery?

Answer 14

Constructive desertion requires that a spouse prove the other’s conduct so egregious as to justify the non-offending spouse leaving the marital home

Cruelty requires acts that tend to cause bodily harm and render the spouses’ living together unsafe

Adultery is not grounds for divorce when the other spouse also engaged in adultery (recrimination), or when the adultery is condoned by resuming marital relations (condonation)

Question 15

When may a no-fault divorce be decreed?

Answer 15

A no-fault divorce may be decreed if the parties have lived separate and apart for 6 months, without cohabitation or interruption, if there are no children and the parties have a separation agreement, or upon separation of the parties for a period of one year if they have children.

Question 16

Factors for determining spousal support:

Answer 16

1) Fact that she did not work outside the home during the marriage at her husband’s insistence
2) The standard of living to which she had become accustomed during the marriage
3) The duration of the marriage
4) The parties’ mental health issues
5) The parties’ present earning ability and capacity to acquire training to enhance ability to enter job market and make a living

Question 17

What’s the interplay between adultery and spousal support awards?

Answer 17

Adultery bars award of spousal support to offending spouse, unless denial of that award will amount to a manifest injustice to that spouse, although an application of the manifest injustice exception is in the discretion of the judge

Question 18

What does the court consider in determining equitable distribution?

Answer 18

At an equitable distribution hearing, the court will determine the value of all property, real and personal, tangible and intangible, acquired during the marriage. it will consider the spouse’s contribution to the to the accumulation of the property in deciding how the property will be divided.

The court may also consider the fault grounds in determining an equitable distribution

Question 19

What does a private nuisance action require?

Answer 19

Private Nuisance requires an action that unreasonably interferes with the use and enjoyment of plaintiff’s land in a way unique to the plaintiff.

Question 20

What is the “unclean hands” doctrine?

Answer 20

Under the unclean hands doctrine, a party seeking equitable relief must himself not have been guilty of inequitable or wrongful conduct (e.g. self-help, retaliation)

Question 21

Is a contract to sell products which can be used on existing structures a “construction contract”?

Answer 21

No. A sales contract to sell chemicals which can be used on existing structures is not a “construction contract” relating to the construction, alteration, repair or maintenance of a building.

Where the harm is suffered in the performance of a SALES contract, indemnity provisions are fine; where the harm is suffered as part of construction, it violates the VA Code

Question 22

What are the tests for actual and apparent authority?

Answer 22

Actual authority may be either express or implied, and it is based on the principal’s communications with the agent and the agent’s reasonable belief that he is authorized.

An agent acts with apparent authority where the third party reasonably believes, based on manifestations of the principal, that the agent is authorized. Apparent authority arises out of the principal’s holding out of the agent as authorized.

Question 23

What does a principal need to do to ratify a contract?

Answer 23

In order to ratify the actions of the agent, the principal must know the material terms of the contract, or be aware of his lack of knowledge. Additionally, silence may constitute ratification where a person would be expected to speak.

Question 24

What does a bailment require, and what’s the applicable standard of care?

Answer 24

A bailment relationship requires delivery by the bailor and consent by the bailee

Virginia follows the common law approach of basing the standard of care upon who benefits from the relationship

In a commercial relationship the benefit is typically considered mutual, and an ordinary standard of care applies.

Question 25

What’s the word for an employee’s minor deviation, for respondeat superior purposes?

Answer 25

A detour.

Question 26

Can an employer found responsible under respondeat superior recover from his tortfeasor employee?

Answer 26

Yes, with an indemnification claim (NOT CONTRIBUTION)

Question 27

To whom does a corporate officer owe a duty of loyalty?

Answer 27

The corporation – NOT the shareholders

Question 28

What are the test(s) for Virginia’s Business Judgment Rule?

Answer 28

The business judgment rule does not protect decisions made that were not made on behalf of the organization

In Virginia, the BJR only protects those who acted with a good faith belief that their actions were in the best interests of the organization

Question 29

What is Dillon’s Rule?

Answer 29

Dillon’s Rule says that Virginia localities (cities and counties) may exercise only those powers which are expressly granted by charter or statute, necessarily implied, or essential.

Dillon’s Rule is a rule of strict statutory construction, so the locality may not exercise a power if ANY REASONABLE DOUBT exists as to whether the power has been conferred.

Question 30

Under VFOIA, how must public meetings be conducted?

Answer 30

Under VFOIA, meetings of public bodies conducting public business shall be open to the public

The VA Code prohibits transacting public business other than by votes at meetings.

Question 31

May parties use depositions for MSJ in cases for compensatory damages?

Answer 31

Depositions are not admissible in VA state courts on a MSJ in cases for compensatory damages

However, replies to RFAs, even when the content is based on responses provided in a deposition, are admissible as long as:

1) they don’t directly reference the deposition, and
2) they don’t require the deponent to admit or deny that he gave certain testimony in the deposition.

Question 32

How are errors in the trial court preserved for appeal?

Answer 32

An error in the trial court may only be considered on appeal if it was properly preserved by making a SPECIFIC and TIMELY objection which allowed the trial court to rule on the issue, or if the appellate court applies the “ends-of-justice” EXCEPTION.

Question 33

Name three rules of professional conduct in VA that might be tested:

Answer 33

A lawyer may not bring or defend a proceeding, or assert or controvert a legal issue, unless there is a good-faith basis for doing so that is not frivolous.

A lawyer may not knowingly make a false statement of fact or law to a tribunal

A lawyer must not conceal a document or other material having potential evidentiary value, for the purpose of obstructing a party’s access to evidence.

Question 34

What sanctions may a court impose? May it do so on its own initiative?

Answer 34

The Rules of the Virginia Supreme Court authorize the imposition of sanctions. These include striking pleadings, staying further proceedings, and dismissal.

Under VA statutory law, the court may impose sanctions on its own initiative, without request from a party, which shall include reasonable expenses, attorney’s fees, and costs charged to the offending party or counsel.

Question 35

Name two grounds for contempt, and corresponding appropriate sanctions

Answer 35

Under Virginia Statutory law, insulting language directed toward a court or misbehavior of an officer of the court in his official capacity, are both grounds for finding someone guilty of contempt.

Any VA judge may prohibit any lawyer from practicing in his or her court as a sanction.

Question 36

When should a judge report an attorney to the VA State Bar?

Answer 36

The VA Cannons of Judicial Conduct say that when a Judge has knowledge of an ethical violation that reflects on a lawyer’s honesty, trustworthiness, or fitness to practice law, he or she should inform the VA State Bar.

Question 37

When must a party file a motion seeking to exclude evidence?

Answer 37

Motions seeking to exclude evidence must be raised in writing before trial by motion filed and notice given to opposing counsel not later than seven days before trial in circuit court.