July 2023 VA BAR EXAM

Question 1

Local Government

Notice of Claims Requirement against any Locality for Negligence

Answer 1

Every claim against a locality for negligence if barred unless the claimaint or his agent sends written notice, that details the place, manner and place of the injury, within 6 months of the injury.

The statement must be filed with the locality’s chief executive or mayor.

It is deemed filed when it is received by the office of the chief executive.

The burden is on the claimant.

Question 2

Actual Notice in relation to the Notice Requirement for negligence against Locality can negate?

Answer 2

It can negate the notice requirement on part of the Claimant because the Locality and its chief executive had already received actual knowledge of the claim within six months.

Question 3

The Statute of Limitations for Personal Injury Claims is what?

Answer 3

Two Years.

Question 4

Tolling?

Answer 4

Tolling of the statute of limitations while he is unconscious.

Question 5

Does the Notice Requirement in relation to localities only apply to cities?

Answer 5

Yes, government employees are not protected.

However, for personal injury claims, one must consider the statute of limitations.

Question 6

Sovereign Immunity factors for the discretionary acts of government employees

Meaning that he will only be negligence for act of gross negligence.

Answer 6

1. The nature of the function that the employee performs
2. the extent of the government’s involvement and interest in the function
3. the degree of control and direction exercised by the government over the employee
4. whether the act in question involved the exercise of discretion and judgment by the employee

Question 7

Contributory Negligence in the context of slip and fall cases

Answer 7

When a plaintiff is aware of the existence of a condition but without reaonable excuse forgets about the condition and falls into it, he is guilty of contributory negligence as a matter of law.

Question 8

Sovereign Immunity for a locality

Answer 8

A locality like a city enjoys sovereign immunity for claims arising out of its governmental functions.

Meaning they can only be liable for acts of gross negligence.

No exercise of slight diligence

Question 9

What are Governmental Functions

Answer 9

These are functions that are tied to protecting the health, safety, and welfare of it citizens.

Such as the operation of a fire department.

Question 10

A city and its employee in regard to negligence.

Answer 10

It doesn’t lose it sovereign immunity because its employee might be guilty of intentional conflict or gross negligence and a city cannot beheld vicariously liable for an employee’s gross negligence.

Question 11

VA Civil Procedure

Must Counterclaims arise from the same transaction or occurence in VA?

Answer 11

No. in VA, counter claims are permissive. There are no mandatory counter claims.

A defendant may plead as a counterclaim any cause of action that the defendant has against the plaintiff whether or not it came from the same transaction or occurrence.

Question 12

What happens it a counterclaim arises from the same transaction or occurrence as the plaintiff’s complaint?

Answer 12

It will relate back to the date of the Plaintiff’s complaint in terms of statute of limitations.

Question 13

When can a party take a nonsuit during a trial?

Answer 13

A party may take a nonsuit during a trial before a motion to strike the evidence has been sustained or before the jury retires from the bar.

Before the judge issued their ruling

Question 14

When can a party can’t nonsuit a cause of action?

Answer 14

A party can’t nonsuit a cause of action, without the consent of the adverse party who has filed the a counterclaim, if the counterclaim arises out of the same transaction or occurence as the claim of the party seeking to nonsuit.

This rule does not apply if the counterclaim can remain pending for independent adjudication by the court.

Question 15

Creditor Rights and VCVP

What is a fraduluent conveyance?

Answer 15

Any conveyance made with the actual intent to hinder, defraud, or delay creditors is considered fraudulent.

Question 16

Conveyances between Spouses are presumed to be what?

Answer 16

Fraudulent and are voidable at the suit of either existing or future creditors

Question 17

How can the presumption of fraud in conveyances between Spouses be rebutted

Answer 17

If the receiving spouse can show that she gave consideration for the conveyance or that it was a bona fide gift

Question 18

What are badges of Fraud?

Answer 18

They are presumptions of fraud within a conveyance.

Question 19

Examples of Badges of Fraud.

Answer 19

Making the transfer while insolvent

transfer between family members

retaining an interest in the property after the transfer.

Want of consideration

Question 20

What kind of evidence is need for a person’s fradulent intent through badges of fraud.

Answer 20

It need to be clear, cogent, and convincing evidence

Question 21

A conveyance or transfer may be avoid for the benefit of the creditor unless

Answer 21

the conveyance was made to a bona fide purchaser

who pay a fair consideration

without notice or knowledge of the fraudulent intent of the grantor

Question 22

Property held as tenancy by the entireties can only be used to satisfy what debts?

Answer 22

The joint debts of husband and wife.

Question 23

President Creditors

Answer 23

Their claims arose before the transfere being attacked, they can avoid voluntary or fraudulent conveyances

Question 24

Future Creditors

Answer 24

Their claims arose after the transfer. they can only avoid conveyances made with actual fraud.

Question 25

UCC SALES

Breach of Warranty

Answer 25

Any affirmation of a fact or promise by the seller to the buyer which relates to the goods and becomes part of the basis of the bargin creates an express warranty that the goods shall conform to the affirmation or promise.

Any description of goods which is made part of the basis of bargain creates an express warranty that the goods shall conform to the description.

It is not necessary for the seller to use formal words like “warrant or Guarantee or that he had specific intention to make a warranty”

Question 26

Breah of warranty

Question 26

What sort of statement doesn’t create a warranty?

Answer 26

A statement purporting to be merely the seller’s opinion or commendation of a good.

Question 26

There is no implied warranty with regards to defects when?

Answer 26

when the buyer, before entering the contract has examined the goods or sample or moderl as fully as he desired or has refused to examine the goods.

Because an examination should have revealed to him the defects.

When the buyer, before entering a k, makes a full inspection of the goods as fully as he desired.

No implied warranty of fitness for particular purpose as the inspection should have revealed to him the defect.

Question 26

Breach of Warranty of Fitness for a Particular Purpose.

Answer 26

Where the seller had reason to know of any particular purpose of the goods and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is, unless excluded or modified in the next section, an implied warranty that the goods shall be fit for a particular purpose.

Question 27

No warranty of fitness of particular purpose when?

Answer 27

the seller indicates a lack of skills and judgment in regards to the goods being solded.

Question 28

A Warranty of Merchantability

Answer 28

a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.

Question 29

Merchant under VA law

Answer 29

A person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or a particular skill to the practices or goods involved in the transaction or to hom such knowledge or skill may attributed by his employment of an agent or broker or other intermediary who by his occupation hold himself out as having such knowledge or skill.

A person who deals in the goods of the kind sold or otherwise holding himself out as having knowledge or particular skills in regards to the goods.

Question 30

Measure of Damages

Answer 30

the difference at the time and plae of acceptance between the value of the goods accepted and the value they would have had if they had been warranted as well as any incidental damages under the VA code.

Resulting from the Seller’s breach include expenses reasonbly incurred in inspection, transportation, care, and custody of rejected goods.

Any other reasonable expenses

The current value minus the price they had if they were warranted.

Question 31

Domestic Relations

void grounds for annulment of Marraige

Answer 31

Bigmay

Incest

Defective licensing or solemnization.

This results in complete nullity.

Question 32

Grounds for Voidable Marriage

Answer 32

nonage, fraud, duress, mental incapaicty, incurable illness, incurable importency of other party that existed beginning of marriage

felony conviction before marriage, without the other party knowing

either party was pregnant by another person at the time of marriage without the other spouse knowing

Eitehr spouse concieved a child bonr to another person within 10 months without the other spouse’s knowledge

one party had been a prositute prior to the marriage without the other party knowing,

Question 33

Either spouse conceiving a child who was born to someone other than his spouse within 10 months of the date of the solemnization of the marriage is ?

Answer 33

A voidable ground to the marriage. Thus for annulment.

Question 34

A conviction of a felony prior to the marriage is a voidable ground for anullment of marriage?

Answer 34

Yes.

Question 35

An annullment of a marriage based on the felony conviction only applies when the other spouse was not aware of the felony conviction prior to the marriage?

Answer 35

Yes, this is based on the fact that annulment can’t be granted on a ground that the parties were aware of and decided to cohabited together.

If they decide to cohabit after learning of the grounds for annulment to the marraige.

Question 36

For a voidable Marriage, an annulment can’t be granted if

Answer 36

if the parties cohabited after learning of the grounds for annulment.

Question 37

Marital Property

Answer 37

this is determined as of the date of the last separation of the parties. Not of the date of divorce.

Question 38

Personal Property

When does a Will take effect?

Answer 38

It doesn’t take effect till the death of the testator.

Question 39

When is a gift adeemed?

Answer 39

When the testator makes a specific request, and the identified property is not part of the estate, the gift is adeemed and the beneficiary receives nothing.

Question 40

Specific Bequest

Answer 40

This disposes of an identified item of property owned by the testator.

Question 41

Ademption by Extinction

Answer 41

By an intentional act of the testator, including when a inter vivos gift of property is made to another.

Question 42

When does an inter vivos gift occur?

Answer 42

When there is donative intent,

Valid Delivery,

And valid acceptance.

Question 43

donative Intent

Answer 43

there is present mental capacity and intent to pass title.

Question 44

Valid Acceptance

Answer 44

This is implied by silence when the gift is beneficial to the donee. Donnee may refuse to accept a gift by affirmative act

by words or deed.

Question 45

Delivery

Answer 45

Actual physical Delivery

Donee already in possession

Symbolic Delivery

constructive delivery.

Question 46

Tortious Conversion of personal property

Answer 46

this doens’t deprive the true owner of title. One who does not have title to goods cannnot paass title, even to a bona fide purchaser except

With regard to transfers of money and negotiable instruments

Where a bona fide purchaser has receiv3ed goods through the wrongdoer to whom the goods intended to transfer title

OR

Where a bona fide pruchaser has relied in good faith upon the true owner representation that the possessor is the owner or ha authority to sell.,

Question 47

Adverse Possession Toll

Answer 47

Five Years.

Question 48

Detinue

Answer 48

Recover the Chattel itself

Question 49

Trespass

Answer 49

To recover money damages incurred by reason of dispossession

Question 50

Trover

Answer 50

To recover the value of the Chattle plus damages for dispossession.

Question 51

Abandoned Property

Answer 51

PRoperty is abandoned when the owner voluntarily relinquished ownership with the intent to give up title and possessory control

Question 52

How can someone acquire rights in the property?

Answer 52

Title to Property is quired by actual or constructive dominion over the thing with the intent to asser ownership over it.

A finder acquired rights if they have possession with the intent to exercise title and control.

Question 53

Lost and Mislaid property

Answer 53

There will be a finder and the person whose land the chattel was found.

Question 54

the test to determine lost property

Answer 54

Whether the owners had accidentially and involuntarily parted with the possession of the proeprty and does not know where to find it.

No voluntary affirmative act in placing the property where it was found.

Question 55

Mislaid Property

Answer 55

When it is determined that it was intentionally placed there and forgotten.

A voluntary act to put the property there and they left it behind.

Question 56

Lost Property

Answer 56

There is no voluntary act

Question 57

Who gets the property

Answer 57

IF the property is mislaid - the owner or occupier the premises will prevail over the finder

If the property is lost, then the finder winds and the owner of the property loses.

Question 58

Exceptions to the Lost Property Rule

Answer 58

Trespasser

Employer employee

Highly Private Locus

In each of these situations, the owner prevails over the finder

Question 59

the Possessor of acquired the right of possession agasint hte whole world except the the true owner,

quasi bailee

Answer 59

A duty to find the truw owner if known or reasonably discoverable and a duty of due care.

Question 60

Treasure Trove

Answer 60

Gold or deilver fuond concealed., it belongs to the finder even if he was a trespasser.

Question 61

In regard to Locus in Quo or highly private Locus

Answer 61

the Owner has a superior claim over the finder to mislaid property.

Question 62

Property is mislaid when?

Answer 62

When the owner intentionally places it in a particular spot and forgot about it.

Question 63

Property is lost when?

Answer 63

the Owner accidentially and unknowingly loses possession of the item.

Question 64

Employee and Employer exception

Answer 64

When an employee finds an item in the course of employment, the employer has right to possess the item

Question 65

A specific Bequest in a will adeems if the testator makes an inter vivos gift of the item

A third party intermediary is presumed to be acting for the donee, unless the facts show otherwise

Answer 65

Look this upe.

Question 66

An effective Inter Vivos Gift required

Answer 66

Donative Intent

Valid Acceptance

Valid Delivery

Question 67

Wills, Trust and Estates

What can the surviving spouse claim from their dead spouse’s elected estate?

Answer 67

the Surviving spouse of a testator who dies in the commonwealth is entitled to an elective share of the augmented Marital Estate.

Question 68

How much of the marital property portion of the Augmented Estate can the surviving spouse claim in their elective share?

Answer 68

About 50 percent of the value of the marital portion of the augmented Estate.

Question 69

When must the claim be exercised?

Answer 69

Within 6 months of the admission of the will to probate.

Question 70

If the surviving spouse exercises their right to election, what else is included in the elective share?

Answer 70

The surviving spouse homestead allowance, exempted property, and family allowance, if any are included in the elective share.

Question 71

Claims in regard to the elective share must be made within?

Answer 71

One year of the death of the testator.

Question 72

In order to make a claim fo an elective share, the surivign spouse must either?

Answer 72

make the claim in person before the court having jurisdiction over the estate, oir in writing admitted to the record.

Question 73

However, if a surviving spouse willfully deserts her spouse and such desertion continues until the death of the spouse, then

Answer 73

the party who deserted the decreased spouse shall be barred from all claims in the estate of the other by intestate succession, elective share, exempted orperty, family allowance, and homestead allowance.

Question 74

A testator has the right to disinherit or not account for someone in the estate with the exception of the?

Answer 74

Spouse.

Question 75

The status of Common Law Marriage in VA

Answer 75

It is not recognized

Question 76

What is a pour over Trust

Answer 76

A trust that adds property to an existing trust.

Question 77

How to create an Pour Over Trust?

Answer 77

1. It must be in writing
2. identified under the will
3. executed before or concurrently with the will.

the trust doesn’t need to be executed to the same formaliity as a will.

Question 78

The requirements of a Trust

Answer 78

1. that the settlor has the capacity to create a trust/to convey title to the trustee
2. the settlor has the intent to create a trust
3. the trust has a definite beneficiary (or is an honorary or charitalble trust)
4. the trustee has duties to perform
5. the same person isn’t the sole trustee and sole beneficiary.

Question 79

In a support Trust, the truste can only distribute how much?

Answer 79

They can only distribute so much income as it is necessary per the terms of the trust, which may include those needed for the beneficiary’s education, health, and support.

Question 80

A decedent can’t disinherit his spouse.

Answer 80

In regard to the surviving spouse elective share.

Question 81

the surviving spouse is entitled to increasing percantage from the 50 percent elective share based on the amount they were married to the decedent.

Answer 81

For instance, if she were married for 15 years or longer, she would be entitled to the full 50 percent.

Question 82

The Decedent’s augmented estate includes not only the decedent’s property but also

Answer 82

non-probate transfers to other and the surviving spouse’s porperty and non-probate transfers.

Question 83

Professional Responsibility

The attorney Client Privilege

Answer 83

This covers communications made between privileged persons in confidence for the purpose for obtaining or providing legal advice.

Question 84

Are facts of the case covered by the attorney client privilege?

Answer 84

NO, these are not communications.

Question 85

Attorney client privilege, VA Professional Responsibilty.

Answer 85

https://casetext.com/rule/virginia-court-rules/virginia-rules-of-supreme-court/part-six-integration-of-the-state-bar/section-ii-virginia-rules-of-professional-conduct/client-lawyer-relationship/rule-16-confidentiality-of-information

Question 86

the Work Product Doctrine

Answer 86

THis applies to documents prepared by the lawyer in anticipation of litigation.

The doctrine protects covered materials from discovery unless opposing counsel can show they have substantial need for the materials and cannot, without undue hardship, obtain their substantial equivalent by other means.

Question 87

Someone like a private investigator would be considered part of the legaal team representing a party.

Answer 87

Thus, they would be covered by the attorney client privilege.

Question 88

In regard to identities of persons interviewed by opposing party.

Answer 88

A party may not inquire into the identity of persons that the opposing party’s lawyer or representative has interviewed on the theory that doign so would reveal the lawyer’s thoughts or strategy about the case.

Question 89

FCVP

Rule 15, the granting of amendment of Pleadings

Answer 89

(a)Amendments. - A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

https://casetext.com/rule/west-virginia-court-rules/west-virginia-rules-of-civil-procedure/effective-until-112025-pleadings-and-motions/rule-15-effective-until-112025-amended-and-supplemental-pleadings#:~:text=A%20party%20shall%20plead%20in,unless%20the%20court%20otherwise%20orders.

Question 90

Rule 15 of VA Civil Procedure, the court should freely gran leave to amend pleandings when so justice requires this means?

Answer 90

That leave should be given unless there is some special reason not to do so, such as undue prejudice, futtility, undue delay, or bad faith.

Question 91

The Granting of Summary Judgment.

Answer 91

This should be granted if there is no genuine disputed of material fact thus the moving party is entitled to judgment as a matter of law.

The defendand should argue that the facts admitted by the plaintiff, even in the most favorable light to here, showed that she failed.