General Mixed Questions Flashcards
In Virginia, when must the doctrine of cy pres be applied to a remainder interest in a charitable trust, and how does it affect the trust’s distribution?
The doctrine of cy pres applies when more than 21 years have passed since the creation of the trust and the specific charitable purpose (e.g., a particular health clinic) can no longer be fulfilled. In this case, the trust’s funds can be redirected to another health clinic in the same community to continue the general charitable purpose of affordable healthcare, despite the original beneficiary no longer existing.
In Virginia, who bears the burden of proving testamentary capacity, and how does the burden shift during a will contest?
The proponent of the will bears the burden of proving testamentary capacity. If the proponent shows the testator complied with the formal requirements of execution, a presumption of capacity is created. This presumption shifts the burden of production to the contestant, but the burden of persuasion always remains with the proponent.
If a spouse has had an affair, What level of proof must a spouse meet with respect to the parties’ fault and economic situation before a VA court to be awarded spousal support?
No spousal support may be awarded to a spouse who commits adultery unless the court determines from clear and convincing evidence that the denial of spousal support to the guilty party would constitute a “manifest injustice” based on the spouses’ respective degrees of fault during the marriage and their relative economic circumstances.
Three different types of Bailles and three different standards of care
- Slight diligence: is required when the bailment is solely for the benefit of the bailor (ie the bailor is not compensated). Thus a bailee will only be liable for gross negligence.
- Ordinary care: applies when there is a mutual benefit for both the bailor and bailee in the situation. A mutual benefit exists in most commercial bailment situations.
- Great diligence: this standard is required when the bailment is solely for the benefit of the bailee (ie a gratuitous loan). Thus, if the bailee acts with slight negligence he will be liable.
Where there are two security interests, both of which perfect which on has priority generally?
The one that was filed or perfected first generally has priority.
Concurrent JDX of GDC and CC
The circuit court shares original jurisdiction (i.e., concurrent original jurisdiction) with the general district court over most civil claims for more than $4,500 and not greater than $25,000 (except for personal injury and wrongful death actions, which are $50,000).
The circuit court has exclusive original jurisdiction for civil claims exceeding $25,000 ($50,000 for personal injury and wrongful death actions) excluding interest, attorney’s fees, and costs.
When there is a non-constitutional evidentiary ruling that is erroneous, the Virginia appellate courts will characterize it as:
Harmless error if all parties have had a fair trial.
In Virginia, a non-constitutional erroneous evidentiary ruling is harmless when the parties have had a fair trial on the merits and substantial justice has been reached.
Can a person entitled to enforce an instrument who loses the instrument nevertheless enforce it?
Yes, provided that the person is able to prove the terms of the instrument and the person’s right to enforce the instrument.
A party wishing to file a notice of appeal from a decision of the Court of Appeals to the Supreme Court must do so within the following number of days from entry of the final order?
Within 30 days of entry of the final order, and that period is not interrupted by the filing of a motion for a new trial or a motion to vacate.
What is misplaced property, and who has ownership of misplaced (ie mislaid) property?
Misplaced property is property that reasonably seems to have been intentionally placed in a particular location, but then appears to have been forgotten.
The owner of the place where the misplaced property was found has the right to possess the misplaced property over all but the true owner.
