July 2022 VA Bar Exam Flashcards
Wills and Trust
When is a will considered to take upon effect?
Upon the Death of the testator.
Adeemed by Extinction
if a will beneficiary dies before the testator, the gift lapses.
Exception to the adeemed by extinction.
AS long as the predeceasing beneficiary was a grandparent or lineal descendant of the grandparent of the testator.
The gift can be saved.
When a testator makes a specific devise and the identified property is no longer part of the testator’s estate at his death, then the
Gift is adeemed and the devisee gets nothing. But there are exceptions.
Exceptions to ademption
In regard to stocks, the beneficiary will receive any shares of another entity received as a result of a merger or sale of the original company.
the anti-lapse statute
ACcording to VA Law, a lapsed gift can be saved if the predeceasing beneficiary is the grandparent or lineal descendant of a grandparent of the testator.
And the
When a person has executed a valid will but does not dispose of all the property?
Then that person died partially intestate.
When a will does not include a residuary provision, then
any part of the estate of a decedent not effectively disposed of through the will, passes to the decedent’s heirs under intestatcy laws.
short form the of order of intestacy inheritance.
surviving spouse gets everything if no children or all children are related.
If some children only to decedent, spouse get 1/3 and the children get 2/3
No spouse or not children, then it passes to the kindred of the decedent. To mother and father
then to brothers and sisters and their descedendants.
If none, then to aunts and uncles
If, after making a will, a testator is divorced, all provisions in the will in favor of the testator’s divorced spouse are revoked. and
the property passes as if the spouse predeceased the testator.
If a testator had been survived by a child born after the issuance of the will, then that Child will
inherit the estate as a pretermitted heir.
If a testator executes a will when he had no children, a child born or adopted after the execution of the will, or any descendants of his, who is neither provided for nor mentioned in the will is …
entitled to such portion of the testator’s estate as he would have been entitled to if the testator had passed in intestacy.
The age of majority in VA is 18 and this is important in terms of estate because
distributions of property can’t be made to a minor.
Minor inherits
the court will need to appoint a guardian of the estate and distribute the property to that person on behalf of the child.
Torts
The Family Purpose Doctrine in VA
The Commonwealth of VA rejects the Family Purpose Doctrine
Thus, the owner of an automobile is not vicariously liable for a family member’s negligent operation of an automobile solely by the virtue of family relationship
The state of VA does permit claims for direct liability against parents for negligent entrustment of a vehicle to a child,
HOWEVER
The Plaintiff must prove that the parent owner of the vehicle knew, or had reason to know, she was entrusting her vehicle to an unfirt driver, likely to cause injury to others.
How can it be found that the parent entrusted her vehicle to her child?
By giving express or implied permission
A child between (these ages) are presumed not to have the capacity to understand or appreciate the peril and dangers of his acts and is legally incapable of commiting acts of negligence.
Between the ages of 7 and 14.
This presumption that child between the ages of 7 and 14 do not have the capacity to understand or appreciate the perils and dangers of his acts and is legally incapable of commiting acts of negligence can be rebutted by the Defendant
by showing that the plaintiff child did have the capacity to understand the peril and dangers.
VA is considered a pure contributory negligence jurisdiction.
This means that no plaintiff is entitled to recover from another for an injury proximately caused by any negligence committed by the plaintiff
Any negligence committed by the plaintiff means that the plaintiff can’t recover.
To show that a child plaintiff’s conduct amounted to contributory negligence,
the evidence must show that the plaintiff’s conduct did not conform to the standard of what a reasonable person of like age, intelligence and education woudl do under the circumstances for his own safety and protection.
Example of a situation where a child’s plaintiff’s conduct amounted to contributory negligence.
their conduct did not conform to the standard of what a reasonable person of like age, intelligence and education would do under similar situations.
Having unique knowledge of the dangers,
failing to exercise reasonable care for his own safety.
that the conduct fell below the standards of a reasonable person of like age, intelligence and education would do in a similar situation for his own safety.
Assumption of Risk
An affirmative defense in VA and operates to bar recovery by the plaintiff, based on what the particular Plaintiff knows, understands, and appreciates.
To succeed, the defendant needs to show that the plaintiff fully understood and appriecated a known danger and voluntarily exposed himself to it.
Examples of defenses to Assumption of Risk
That he was incapable of understanding the danger.
Inexperience driver, only experience was with snow mobiles.
Examples of proof of assumption of risk, that the Defendant fully understood the known danger and voluntarily exposed himself to it
Abe told Walt that he had know experience driving in four wheel drive.
That he was inexperienced in driving in ice and snow.
Walt even charactered it as an adventure.
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Domestic Relations
What sort of Jurisdiction of the Juvenile & Domestic Relations District Court and Circuit Court have over custody and child support orders?
They have concurrent jurisidction over custody and child support orders.
When does a Juvenile and Dometic Relations District Court lose jurisdiction over Custody and Child Support Cases?
They lose this jurisdiction after they issue custody or support when a party files for a suit of divorce asking for custody and support to be decided, but only after a hearing is set in the circuit court for a date certain or the matter is on the motions dockeet to be heard within 21 days.
What is contempt?
Contempt is an act in disrespect of the court or its process or which obstructs the adminstration of justice.
It is in the broad discretion of the court to exercise its powers.
Grounds for Divorce - Living Separately and Apart
Then they have a minor child.
In VA, where the parties have a minor child, they must demonstrate that they have live separately and apart for one year.
no cohabitation and without interruption for one year.
Grounds for Divorce - Willful Desertion or Abandonment after One Year
Desertion is a breach of the matrimonal duty that requires a showing of the actual breaking off of the matrimonial cohabitation with the intent to desert the mind of the deserting paty.
A breaking off of matrimonial co-habitation with the intent to desert.
Need to show that it for one year.
And that there was intent on the deserting party to leave the marriage.
What is Matrimonial Cohabitation
Sexual relations, continuing cohabitation, carrying out of the mutual responsibilites of the marital relationship.
Desertion
a breaking of matrimonial cohabitation. With the intent to desert.
A wilful withdraw of sexual intercourse without just cause or excuse when such withdrawl is accompanied with willful breach and neglect of other marital duties as to practically destroy home life in every sense of the word.
to render the marriage intolerable and impossible to be endured.
Constructive Desertion
This can be established by cruelty on part of the spouse that justified the other spouse discontinuation of marital cohabitation.
Was the situation intolerable?
Was his health (mental or physical endanger?
Significant deterioration in their physical health.
Where a juvenile court has properly issued a custody order, a susequent request for a custody order accompanying a suit for divorce in circuit court should be considered a?
Modification of custody with a consideration to whether there has been a material change in circumstances.
Modification of Custody need to consider what?
Whether there has been a material change in circumstances based on the best interest standards of the child.
Best Interest factors to be considered in a modification of custody
Ages and needs of the child,
The existing relationship between child and parent
the role that each parent played in the upbringing
the ability of each parent to support the child
the willingness of each parent to maintain a close and continuing relationship with the child.
