July ’22

Question 1

The language of a will is construed…

Answer 1

…in light of the circumstances as they existed at execution.

Question 2

If a will beneficiary dies before the testator…

Answer 2

…the gift lapses.

However, if beneficiary is a grandparent or lineal descendant of a grandparent of the testator, the anti-lapse statute provides for the descendants of the decedent to take in their place.

Does not apply if the will uses words showing contrary intent (“to my surviving brothers” stops the anti-lapse statute from saving the gift to a predeceased brother with heirs).

Question 3

When a testator makes a specific devise, and the identified property is not a part of the testator’s estate at his death, the gift is…

Answer 3

…adeemed and the devisee receives nothing.

However, the beneficiary of a stock that no longer exists due to merger or sale would receive any shares of another entity received as a result of the merger or sale of the original company.

Question 4

When a person has executed a valid will, but does not dispose of all of the property by the will, then that person…

Answer 4

…dies partially intestate.

Question 5

When a will does not include a ___ any part of the estate of a decedent not effectively disposed of through the will, passes to the decedent’s heirs under Virginia’s intestacy laws.

Answer 5

Residuary provision.

Question 6

When a person dies intestate (or partially intestate), if there is no surviving spouse or children, then the estate descends to his kindred in the following order:

Answer 6

to the mother and father, or the survivor; if none, then to his brothers and sisters and their descendants; if none, then the estate would be distributed to the aunts and uncles and their descendants.

Question 7

If, after making a will, a testator is divorced…

Answer 7

…all provisions in the will in favor of the testator’s divorced spouse are revoked.

The property devised to the divorced spouse passes as if the divorced spouse predeceased the testator, unless a contrary intention is apparent from the will.

If it is a specific bequest, then the bequest falls to the residuary taker. If there is no residuary taker, then the gift passes under intestacy.

Question 8

If a testator executes a will when the testator has no children, a child born or adopted after the execution of the testator’s will, or any descendant of his, who is neither provided for nor mentioned in the will is…

Answer 8

…entitled to such portion of the testator’s estate as he would have been entitled to if the testator had died intestate.

[from Feb ’20:] If such afterborn or after-adopted child, or any descendant of his, dies unmarried, without issue, and before reaching 18 years of age, his portion of the estate, or so much of his portion as may remain unexpended, shall revert to the person to whom it was given by the will.

Question 9

Distributions from an estate ___ be made directly to a minor.

Answer 9

Cannot.

The executor of the estate would need to petition the court to have a guardian of the estate appointed in order to manage the property passing to a minor. There is no presumption that the child’s parent or legal guardian would be the guardian for purposes of distributions from the estate.

The age of majority in Virginia is 18.

Question 10

A child born after a will is executed is a…

Answer 10

…pretermitted heir.

Question 11

Virginia ___ permit claims for direct liability against parents based on ___ of a vehicle to a child.

Answer 11

Does; negligent entrustment

The plaintiff must prove that the parent owner of the vehicle knew, or had reason to know, she was entrusting her vehicle (including by express or implied permission) to an unfit driver, likely to cause injury to others.

Question 12

A child between the ages of ___ and ___ is ___ and is legally incapable of committing acts of negligence.

Answer 12

7; 14; presumed not to have the capacity to understand and appreciate the peril and dangers of his acts

The defendant can rebut this presumption.

Question 13

To show that a child plaintiff’s conduct amounted to contributory negligence, the evidence must show that…

Answer 13

…the plaintiff’s conduct did not conform to the standard of what a reasonable person of like age, intelligence, and experience would do under the circumstances for his own safety and protection.

Question 14

Assumption of the risk is an ___ in Virginia and operates to ___, based on the subjective inquiry into what the particular plaintiff knows, understands, and appreciates. To succeed, the defendant must prove that…

Answer 14

Affirmative defense; bar recovery by a plaintiff.

…the plaintiff fully understood and appreciated a known danger and voluntarily exposed himself to it.

Question 15

The ___ has concurrent jurisdiction with Circuit Court over custody and child support orders.

Answer 15

Juvenile & Domestic Relations District Court

Question 16

After a Juvenile Court issues a custody or support, it is divested of jurisdiction when a party…

Answer 16

…files a circuit court suit for divorce asking for custody and support to be decided but only after a hearing is set by the circuit court for a date certain or the matter is on the motions docket to be heard within 21 days of filing.

The Juvenile Court continues to have jurisdiction to enforce its valid orders prior to the entry of a conflicting order of the circuit court.

Question 17

Contempt is defined as…

Answer 17

…an act in disrespect of the court or its process, or which obstructs the administration of justice.

It is within the broad discretion of the court whether to exercise its contempt powers.

Question 18

Where the parties have a minor child, in order to divorce, they must demonstrate that they have…

Answer 18

…lived separate and apart without any cohabitation and without interruption for one year.

Question 19

A party is entitled to a divorce based on willful desertion or abandonment after…

Answer 19

…one year from the date of such act.

Desertion is a breach of matrimonial duty that requires a showing of the actual breaking off of the matrimonial cohabitation coupled with an intent to desert in the mind of the deserting party.

Matrimonial cohabitation refers to sex, continuing cohabitation, and carrying out of mutual responsibilities of the marital relationship.

Question 20

Constructive desertion generally can be established by…

Answer 20

…cruelty on the part of one spouse that justifies the other spouse’s decision to discontinue marital cohabitation. However, in Rowand v. Rowand, 215 Fa. 344 (1974), the Virginia Supreme Court held that a spouse may be free from legal fault in breaking off cohabitation even where the other party’s conduct falls short of constituting a grounds for divorce (e.g., cruelty).

Question 21

Where a Juvenile Court has properly issued a custody order, a subsequent request for a custody order accompanying a suit for divorce in Circuit Court should be treated as…

Answer 21

…a modification rather than a de novo review of a custody determination. Here, nothing in the facts indicate that the parties’ circumstances have changed since the Juvenile Court entered the custody order.

Question 22

If the court determines there is a change of circumstances, it should apply the…

Answer 22

…best interests factors set forth in the statute. The most relevant factors are discussed below.

-Age and needs of the child;
-The existing relationship between each parent and the child;
-The role that each parent has played in the upbringing;
-The propensity of each parent to actively support the child’s contact with the other parent; and
-The willingness of each parent to maintain a close and continuing relationship with the child.

Question 23

Does UCC Article 2 apply where a contract is for a mix of goods and services?

Answer 23

Only if the sale of goods predominates.

Question 24

Under the UCC, “goods” does not include fixtures which are…

Answer 24

…by their nature permanently affixed to realty.

Factors include the degree and permanence of affixation as compared with fully integrated structural systems.

Question 25

A sale of goods for $___ or more falls under the statute of frauds, unless the ___ exception applies.

Answer 25

500; specially manufactured goods.

Applies where the goods were not suitable for sale to others in the ordinary course of the seller’s business and the seller has made a commitment for their procurement.

[Feb. ‘17:] Other exception where payment and goods have been received and accepted.

Also exception where party to be charged admits there was a contract.

Question 26

An exception to the statute of frauds for sale of goods over $500 also exists for agreements between ___ where…

Answer 26

merchants.

…within a reasonable time, a writing in confirmation of the contract is received and the party receiving it has reason to know its contents, the agreement is enforceable unless written notice of objection to its contents is given within ten days after it is received.

Question 27

To the extent a contract has already been ___, it may become enforceable despite the lack of a traditional writing compliant with the Statute of Frauds

Answer 27

performed in good faith.

Question 28

A lawyer may not knowingly communicate with a person who…

Answer 28

…is represented by another lawyer in the matter.

The Rule applies even though the represented person initiates or consents to the communication.

Question 29

A lawyer may not communicate with a constituent of the organization who…

Answer 29

…supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

However, consent of the organization’s lawyer is not required for communication with a former constituent.

Question 30

If a constituent of the organization is represented in the matter by his or her own counsel…

Answer 30

…a lawyer needs the consent of that counsel to question the constituent.

This applies even if the constituent is not a party to the formal proceeding.

However, where the personal counsel has consented to communication, the counsel of the organization must also consent.

Question 31

A lawyer may communicate with a represented party without consent of their counsel if…

Answer 31

…it concerns matters outside the representation.

Question 32

A warrantless search is valid where a party gives police ___.

Answer 32

Consent.

Consent may be given by one with actual or apparent authority.

Where multiple parties have common authority over a premises, any one party with authority may grant consent despite the lack of express concurrence by any of the other parties.

Question 33

Spousal testimony privilege ___ protect against voluntary testimony by one’s spouse.

Answer 33

Does not.

However, in criminal cases only:
A person whose spouse is a D in a criminal case cannot be:
a. Called as a witness by the prosecution, or
b. Compelled to testify against his spouse in a criminal proceeding
• Only the W-spouse may invoke the privilege (i.e., D cannot prevent a willing spouse from testifying against her)
• Privilege can only be invoked during marriage

Question 34

Prior convictions ___ relevant at the sentencing stage, whether or not they are admissible at the guilt stage.

Answer 34

Are.

Question 35

How to appeal a criminal conviction in circuit court?

Answer 35

-file a notice of appeal with the circuit court within 30 days of entry of his sentencing order (and transmit notice to opposing counsel) and file a copy of the notice of appeal with the clerk of the Court of Appeals along with the filing fee.
-The notice should contain a statement as to whether a transcript will be filed. The notice must contain the appropriate certificate.
-If a transcript is to be filed it must be filed with the trial court within 60 days.
-Once the trial record has been received by the Court of Appeals of Virginia, you have 40 days to submit his opening brief.

Question 36

To prevail on a claim for inverse condemnation, P must establish that:

Answer 36

(i) the property owner has some private property right,
(ii) the property or a right connected to that property has been taken or damaged by the government, (governmental action adversely affects the landowner’s ability to exercise a right connected to the property.)
(iii) the taking or damaging was for public use, and,
(iv) The government failed to pay just compensation.

Sovereign immunity does not apply to inverse condemnation.

Must be private property, not available between two government bodies.

Question 37

The Code of Virginia specifically provides localities with immunity from ___ negligence in the operation of various facilities including ___.

Answer 37

Simple; parks, playgrounds, and recreational facilities.

Question 38

Every claim against a county, city, or town for negligence shall be forever barred unless the claimant has…

Answer 38

…filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued.

The fact that City officials were generally aware of the incident does not provide an exception to the notice requirement. However, failure to provide such statement shall not bar a claim against any county, city, or town, provided that the attorney, chief executive, or mayor of such locality, . . . had actual knowledge of the claim, which includes the nature of the claim and the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued.

Does not apply to non-negligence claims like inverse condemnation.

Question 39

A civil appeal from a general district court must take place within…

Answer 39

…ten days.

Question 40

A general district court may reopen a matter within ___, on a motion made within ___.

Answer 40

45 days; 30 days.

Question 41

So long as the motion is made within ___ of the date of the judgment, the Court can vacate the judgment on the ground of fraud on the Court.

Answer 41

Two years.

Question 42

A defaulting party ___ participate in the default judgement entry and damages hearing.

Answer 42

Can.

The court may allow leave to file late responsive pleadings.

Question 43

___ generally are not liable for the debts of a corporation or for contracts signed as agents of a corporation.

Answer 43

Shareholders, directors and officers.

However, anyone who purports to act on behalf of a corporation knowing that the entity has not been incorporated is personally liable unless the other party also knew that there was no incorporation.

Question 44

Directors owe fiduciary duties of ___ to the corporation.

Answer 44

Care and loyalty.

Question 45

The duty of loyalty includes, among other things,

Answer 45

…the duty not to misappropriate, or usurp, a corporate opportunity.

In determining whether an opportunity belongs to the corporation and must be offered to the corporation before a director takes it for herself, a court will consider factors such as the similarity of the opportunity to the business of the corporation and how the director learned of the opportunity.