MEE Flashcards
How to determine whether the defendant’s act was the cause-in-fact of the victim’s death (Torts)
To determine whether the defendant’s act was the cause-in-fact of the victim’s death, a “but for” test is applied (but for the defendant’s conduct, the victim would have died). The defendant proximately causes the victim’s death when the death is natural and probable consequence of the defendant’s conduct, even if he does not anticipate the precise manner in which the death occurs.
explain an intervening act (torts)
An intervening act will shield the defendant from criminal liability when the intervening act is mere coincidence or unforeseeable. The intervening act will then be deemed to be the actual, proximate cause of the victim’s death. I
How to give a settlor full control over trust assets (trusts)
A trustee holds legal title to specific property under a fiduciary duty to manage, invest, safeguard and administer the trust assets and income for the benefit of designated beneficiaries, who hold equitable title. Here, because the settlor wishes to retain full control of the trust assets, one solution would be to name himself as trustee.
Under the uniform Trust code, a settlor can revoke or amend a trust unless the terms expressly state that it is irrevocable. However, many states still follow the common law rule, which requires that the settlor reserve the power to revoke and amend. In those states, a trust is irrevocable unless the instrument expressly states otherwise. Thus, for the settlor to retain control in those states, the trust instrument should expressly state that it is revocable.
How can a settlor have the ability to add assets to a trust (trusts)
revise the trust instrument to expressly provide for later additions to the trust corpus. Note that the power to revoke also includes the power to amend; so if the trust were made revocable, it is likely that settlor could amend it to include later additions of trust property
Another method settlor could use to add assets to the trust is by including a pour over provision in his will. A pour over gift is a testamentary gift created during the settlor’s lifetime, with the testamentary assets to be administered and distributed as part of the trust. Under the traditional view, to create a valid pour over gift from a will to a revocable trust, the trust must be in existence or must be executed at the time of the will’s execution. However, under the prevailing view, a will may devise property to a trustee of a trust established or to be established during the testator’s lifetime. i.e the trust maybe established after the will is executed before the testator’s death. Additionally, pour over gifts are valid even if the trust is unfunded during the testator’s lifetime, which is the case here, and even if the trust is amended prior to the testator’s death.
what creates a valid trust? (trusts)
To create a valid trust, there must be a settlor, who intending to create a trust for a valid trust purpose, delivers the trust property to the trustee to hold for the benefit of one or more beneficiaries. Because a trust cannot exist without someone to enforce it, definite beneficiaries are necessary to the validity of a trust. Although the beneficiaries need not to be identified at the time a trust is created, they may be susceptible of identification by the time their interests are to come into enjoyment. The trust beneficiaries may be a class, provided that the class is sufficiently definite. The settlor can even allow the trustee in its discretion to select the members as long as the class is reasonably definite. If the class is too broad, however, the trust (or a portion thereof) may be invalid for lack of definite beneficiaries.
what happens when a portion of a trust fails for lack of a beneficiary? (trusts)
When a portion of a trust fails for lack of a beneficiary, a resulting trust in favor of the settlor or the settlor’s successors in the interest is presumed
Can a claimant receive payment from a beneficiary of a trust? (trusts)
in the absence of a statutory prohibition or a spendthrift clause, the interest of an insolvent beneficiary can generally be reached to satisfy the claims of his creditors. However, the creditor reaches inly the interest if the beneficiary and not the trust property itself
Explain perfection by filing (secured transactions)
- Perfection can occur by the filing of a financing statement for all kinds of collateral except deposit accounts and money.
- For collateral other than real estate, a financing statement is filed centrally with the sectary of state.
- The financing statement must contain (i) the name and mailing address of the debtor, (ii) the name and address of the secured party, and (iii) an indication of the collateral covered by the financing statement.
- The financing statement is ineffective if it contains any seriously misleading errors
- if the debtor is a registered organization, the debtor’s name will be considered seriously misleading if it does not match the name on the debtor’s public organic record.
- use of debtor’s trade name is insufficient
- An incorrect name will not be treated as seriously misleading if the financing statement would be discovered in a filing office search under debtor’s correct name.
explain automatic perfection (secured transactions)
Perfection may occur without filing for security interests in a small scale assignment of an account or payment intangible that does not alone transfer a significant part of the assignor’s outstanding account of payment intangibles to the creditor
Actionable confinement
Actionable confinement encompasses the failure to provide a means of escape under a duty to do so. Hence, if the plaintiff has lawfully come under the defendant’s control and it would be impossible to leave without the defendant’s assistance (and it was understood between the parties that such assistance would be supplied) the intentional withholding of such assistance will constitute false imprisonment
Negligent infliction of emotional distress
(1) plaintiff must be within the “ the “zone of danger” from physical injury; and
(2) the plaintiff must suffer physical symptoms from the stress caused by the danger to her
the rule is different when a bystander outside the zone of danger suffers emotional distress from seeing the defendant negligently injure another. In that case most states allow to recover if
(i) the plaintiff and the person injured by the defendant are closely related
(ii) the plaintiff was present at the scene of the injury
(iii) the plaintiff personally observed or perceived the event
parental liability
The director is likely to prevail. Parents are not vicariously liable at common law for the intentional torts of their children (although many states have imposed limited liability for certain conduct by statute). However, a parent (or anyone else having care or custody of a child) can be held liable for injuries caused by the child where the parent herself was negligent. For example, the parent may be liable for failing to exercise reasonable care to protect against the child’s known dangerous tendencies.
involuntary manslaughter
in some jurisidictions, involuntary manslaughter may result from criminal negligence: (1) the defendant knew or should have known that his conduct had high or unreasonable risk of death, and (2) his actions were a gross deviation from how a reasonable person would have acted
legal cause
- A defendant’s conduct must be both the cause in fact and the proximate cause. A defendant’s conduct is the cause-in fact and proximate cause if the event would not have occurred “but for” the defendant’s conduct.
- The defendant is a proximate cause of the event if the event was the natural and probable consequence of his conduct, even if he did not anticipate the precise manner in which it would occur
what makes for a valid deed?
For. Deed to be valid, it must (I) be in writing, (ii)sufficiently describe the land, (iii) identify the grantor and grantee, (iv) evidence an intention to convey the land, and (v) be signed by the grantor. The parties may be identified by name or by describing them in some other way (e.g to my eldest daughter.) if the deed is delivered with the identity of the grantee left blank, some courts presume that the person taking delivery has authority to fill in the name of the grantee, and if he does so, the deed is valid.
