MEE Flashcards
1
Q
Creation of Agency Relationship
A
Agency arises when one person (P) manifests ASSENT to a 3P (A) that the A shall act on the P’s behalf + S2 the P’s control, and A must manifest assent or otherwise so consent to act.
P/A must have capacity (P = cap to etner into relationship and transaction; P = minimal capacity to do what appointed to do)
need not be compensated
need not believe/intend to enter into Agency relationship
2
Q
Actual Authority
A
A principal will be bound to a K entered into by the A when the agent has actual authority.
An agent has acutal authority when the Ps manifestations cause the A to reasonably believe that the P wishes the A to so act.
Actual authority may be either express or implied.
- (A) Express – Ps explicit directions to agent (orally or in writing)
- (B) Implied – allows A to take whatever acts necessary to achieve Ps objectives, based on As reasonable understanding of his duties
- any act necessary to carry out agent express auth duties
- agent acted similarly in prior dealing before / P acquiesced or remained silent
- it is customary for agent in that position
3
Q
Apparent Authority
A
A P is bound to a K entered into by an A with apparent authorty.
ApA exists when:
- (1) a 3P reasonably believes that the agent has the authority to act on behalf of the P AND
- (2) that belief is traceable from the Ps manifestations (principal holds agent out as having authority)
- P holds A out as having auth when he:
- a) gives position or title indicating auth
- b) previously held the A out and did not publish a revocation
- c) cloaked the agent with the appearance of authority
- P holds A out as having auth when he:
ApA continues until the P communicates termination to 3P
ApA not applicable if: (1) 3P had knowledge of lack of auth or (2) txn not in OCB
4
Q
Estoppel
A
A person who has not represented that an individual is authorized to act as an agent may be estopped from denying the existence of an agency relationship or an agent’s authority with respect to a transaction entered into by the agent if:
- (1) the 3P justifiably induced to make a detrimental change in position bc he believed that the txn entered into was on belaf of the P
- (2) P failed to take reasonable steps and to use ordinary care (i.e. knew A acting w.o auth and not giving notice to 3P
5
Q
Ratification
A
A P can ratify an act that was done on the principal’s behalf. If a P ratifies the A’s action, then the P is bound just as if the action had been authorized, even if the agent acted without authority.
There are four requirements for ratification:
- (1) principal must ratify the entire K
- (2) P and 3P must have legal capacity to enter into the K
- (3) ratify in a timely manner (the ratification must occur before the 3P w/draws from the K) and
- (4) the principal must know the material facts of the transaction involved in the original act.
Agent also remains liable if P was not disclosed
6
Q
Agent K Liab
A
~~~ONLY DISCUSS IF CALL ASKS FOR IF AGENT BOUND~~~~
When an A enters into a K on Ps behalf and binds the P to a K, the agent might also become liable on the K.
In order to avoid becoming liable on the K, the agent needs to
- enter into the K on behalf of a disclosed principal,
- disclose that P to the 3P, and
- not agree to become a party to the K.
Generally, if the A lacks authority to bind the P, then breach of implied warranty has occurred, and A is liable to 3P for breach. However, in cases when P bound to 3P after A acts with apparent authority in binding them, the A is not liable on the K.
The liability of the A depends on the TERMS of the K and the DEGREE to which the P is disclosed:
- [Disclosed] – A purport to act for P, 3P knows P exists and its identity.
- Follows the general rule above.
- [Partially Disclosed] if 3P has notice of Ps existence, but not ID
- Unless 3P and A agree otw, A becomes party to K
- [Undisclosed] no notice of existence or ID of P
- A becomes party to K
- Whether or not P party depends:
- if A had authority or P ratifies –> P is party [P-A-3P]
- If A did not have auth –> only A and 3P parties
Once a third party discovers the existence of a P, the election of remedies doctrine requires the 3P to choose to hold liable either P or A.
7
Q
EE v. IC
A
Primary focus is whether the P had the right to control the manner and method for which the job was performed
- EE – someone who is S2 Ps control with respect to the physical conduct of the Agents performance
- IC – non EE agent, not S2 Ps control about physical conduct or method of As performance
Courts analyze the following to see if person EE or IC:
- whether maintain high level indep
- free to work with others
- fixed fee/no salary/gets paid on results
- liable for work done and accept resp to remedy defects
owns own tools
8
Q
VL for A’s Torts
A
Vicarious liability asserts that a P is liable for the acts of an A, even though the P is not directly responsible.
(1) A P can be liable under the doctrine of respondeat superior when the A commits a tort while a_cting within the scope of employment._
- Acts w/in scope of emp when (1) performing work assigned by ER or (2) engaging in course of conduct S2 ER control
- To determine scope of employment, cts analyze whether:
- (a) the conduct is of the kind the EE was employed to perform
- (b) occurs on the job (i.e. substantially within the authorized time and space limits)
- (c) whether the act was motivated in whole or in part by a desire to benefit the ER/P
- Not w/in ScEMP if unrelated to AND not intended to serve any purpose of the ER
- To determine scope of employment, cts analyze whether:
(2) A P can also be VL when an A acts with apparent authority and commits a tort and their appearance of authority allowed them to do so.
* The 3P must reasonably believe that the A was acting with actual authority and the belief must be reasonable and traceable to a manifestation by the P. [if a 3p reasonably believes IC has apparent auth can hold liable].
Intentional Torts generally outside the scope of emp, UNLESS, occur within space and time limits of employment, acting for the ER benefit, and was the kind of work that the person was hired to do OR the act was specifically authorized by the ER
A’s liab – will be liab for acts of neg or intent torts, not liable for P torts
9
Q
PL P for A Torts + IC Torts
A
A P/ER will be directly liable for A’s acts, even if outside scope of emp if:
- (a) P intended the conduct/consequences (i.e. had actual auth or ratified)
- (b) P was negligent or reckless in selecting, training, supervising, or controlling the agent
- (c) it is a non-delegable duty
Generally, a ER/P has not liability for IC torts except:
- inherently dangerous activity
- non-delegable duty owed by P
- negligent hiring, supervision
- P retains control over certain tasks and the tort occurs within those tasks
- Estoppel - P holds out C as agent, 3P reasonably relied on IC skill, and 3P suffered harm
10
Q
Duties Owed by Agent to P
A
A owes several mandatory duties to the P including:
- Duty of Care – duty act w/ the care that a RP in a like position would exercise under similar circumstances, measured by local standard, if special skills hold to that
- Duty of Loyalty – duty to act solely and loyally for Ps benefit in matters connected to the Agency
- encompasses duty not to:
- usurp biz op
- not use P confidential info
- not deal with P as adverse party w/o Ps knowledge
- not take a financial gain/skim off top from P
- encompasses duty not to:
- Duty of Obedience – duty to obey all reasonable directions of the P and act within scope of authority
Also owes duties to
- (4) Provide Relevant Info and Accounting
- (5) to Keep and render accounts
- (6) implied duty to act in accd with K term, if there is one
11
Q
General Partnership
A
A GP is formed whenever two or more persons associate (whether or not in writing) for the purposes of carrying on a business for profit.
It is not necessary that such persons have the SI to form a p’ship.
The only agreement necessary to create a p’ship is the agreement to conduct a for profit business as co-owners.
- This agreement may even be implied by the conduct of the parties when they have not entered into a written or oral agreement.
If carrying on as co-owners for profit or if someone receives share of profits, assumed P’ner UNLESS payment is for: a debt; wages as EE or IC; rent; of an annuity or retirement benefit; of interest/loan charges; OR for sale of goodwill of biz
Incoming P’ner must secure consent of all existing partners
12
Q
LP
A
Is a p’ship composed of LPs and at least one general partner.
- LP’s liability for p’ship debts is limited to her capital contribution to the P
- General partner has PL for p’ship debts like in GP
LP not formed unless Certificate of LP filed w SoS which must include:
- name of p’ship
- address of p’ship principal office
- name and address of registered agent + each GP
- whether p’ship is LLLP and
- signed by all GPs
New P’ners can only be admitted by written consent of all parties after creation unless PA says otw
13
Q
LLP
A
A LLP is a p’ship in which p’ner PL for obligations of the p’ship is eliminated. However, a p’ner is still is PL for his own personal misconduct.
To become LLP
- (1) must be approved by all p’ners of GP (same # as to amend), unless PA provides otherwise
- (2) must have LLP at end of name
- (3) To enjoy LLP status, the p’ship must file a Statement of Qualification with the SoS (does not create new p’ship) includes:
- (i) Name and address of P’ship
- (ii) statement that the P’ship elects to become an LLP and
- (iii) deferred effective date (if any)
14
Q
Amending PA
A
Unless PA provides otw, P’ship agreement may be amended at any time with a unanimous vote
15
Q
Authority to Bind the P’ship
A
The scope of a p’ner authority is governed by agency law principles. Each p’ner has equal rights in the management and conduct of the p’ship business
- P’ner is agent of P’ship for the purpose of its business and can contractually bind the partnership when the partner acts with either actual or apparent authority.
Actual Authority
- express- can arise from PA itself, authorization from other partners or statement of authority filed with the state
- implied actual authority – p’ner may take actions reasonably incidental or necessary to achieve p’ner duties
- If PA is silent as to scope of agent-p’ner authority, a P has actual authority to commit a p’ship to usual customary matters, unless the p’ner has reason to know that (1) other p’ners might disagree or (2) for some reason consultation with fellow p’ners is appropriate.
- Under general agency law principles, a p’ner does not have authority to take unusual or non-customary actions that will have a substantial effect on the p’ship (or to amend the PA); for such actions unanimous consent of the p’ners is required.
- But if there is a difference in opinion about acts within the OCB, only a majority of p’ner approval is necessary.
Apparent Authority – A p’ners act that was not authorized by the p’ship may nevertheless bind it under the principle of ApA. For ApA to apply, the p’ner must perform the unauthorized act in the ordinary course of apparently carrying on either the p’ship business or business of a kind carried on by the p’ship. (OCB = normal and necessary for managing the business)
- However, the third party with whom the partner was dealing cannot hold the partnership liable when that party knew or had received notification that the partner lacked authority. For the partnership to escape liability, the third party generally must possess actual knowledge of the partner’s lack of actual authority.
- **for acts outside scope of biz –> need manifestation by p’ship that p’ner had authority to be binding
16
Q
Liability of P’ners
A
A p’ner is J/S personally liable for all p’ship obligations.
- Because a p’ner is an agent of the p’ship, the p’ship is liable for a p’ners tortious acts, including fraud, committed in OCB or with the p’ship’s authority (actual or apparent). However, not liable for criminal acts of other p’ners just by virtue of being in the p’ship
-
Incoming P’ner
- A person admitted as a p’ner into an existing p’ship is not PL for any prior P’ship obligations. However, any capital contributions made by an incoming partner to the p’ship is at risk for satisfaction of such p’ship obligations.
-
Dissociating P’ner
- P’ship is not terminated until the p’ship biz is wound up. After dissolution, the p’ship is bound by a p’ner’s act that is appropriate for winding up the p’ship. Each p’ner is liable to the other p’ners for his share of p’ship liab incurred by such post-dissolution acts. Further, although a dissociated p’ner loses any right to participate in the biz, his apparent authority to bind the p’ship lingers after dissociation for up to 2 years.
Judgement Enforcement Against P’ner Personal Assets
- Judgement against the p’ship is not a judgement against the individual p’ner
- Unless there is also a judgement/suit against the p’ner, a judgement against the p’ship cannot be satisfied from the p’ner assets, only from p’ship assets.
- Even though a p’ner is PL for the p’ship obligation, a p’ship creditor generally must exhaust the p’ship assets before levying on the p’ners personal assets.
Liability of LP’ners
- not PL for obligations of LP
- liable for own misconduct
- at risk of lsoing capital contribution to p’ship OR
- may become PL if p’ner participates in management
17
Q
P’ner Duties to EO and P’shp
A
A p’ner is an A of the P’ship and owes the p’ship and the other p’ners two fiduciary duties:
- (1) DoL – requiers the P’ner to act in the best int of the P’ship
- Under DoL P’ner must refrain from:
- (i) competing with P’ship biz, unless agreed otw
- (ii) advancing an interest adverse to P (having a COI)
- (iii) usurping P opp or otw using P’ship prop or biz to dervie personal benefit, without notifying the p’ship
- pship opp is one that: a) is closely related to the p’ship existing or prospective line of biz; b) would competitively advantage the p’ship and c) the pship has financial ability, knowledge, and experience to pursue
-
Exceptions
- However, the PA can designate certain activities as not violating DoL as long as not manifestly unreasonable, but cannot do away with DoL all together
- P’ner not liable if:
- (i) fully discloses material facts AND
- (ii) either PA is amended OR all partners consent
- Under DoL P’ner must refrain from:
- (2) DoC – Under the DoC, a p’ner is prohibited from engaging in
- (a) grossly negligent or reckless conduct,
- (b) intentional misconduct,
- (c) or a knowing violation of law.
- ~(3) GF and Fair Dealing
- ~(4) Duty to Provide Full Info
- UPA – render on demand true and full info about things fx p’ship
- RUPA – shall disclose w/o demand full info about p’ship biz and affairs
If P’ner breach –> may be PL to P’ship for losses; or other partner may maintain direct action to enforce the p’ner right (incl violation fid duty), but P’ner cant maintain deriv action
Who Do they Apply to?
- Generally only apply to P’ners (dealing b/t prospective p’ner not subject to these duties)
- Upon P’ner dissociation or p’ship dissolution duties dont apply unless p’ner engaged in winding up
- If participating in winding up, applicable besides noncompete aspect of DOL
18
Q
Rights of P’ners Among Themselves
A
Profits and Losses – PA controls right to share in P/L, division need not be the same, if silent entitled to even share of P/L (even if only silent losses, losses shared in same manner as profits)
Right to Mgmt and Control – Each p’ner has equal rights in the management and conduct of the p’ship business (incl actual auth to conduct usual and customary P’ship matters)
- A difference arising as to a matter in the OCB of the p’ship may be decided by a maj of the p’ners [MAJORIT]
- An act outside the OCB of p’ship and an amendment to p’ship agreement may be undertaken only with affirmative vote or consent of all p’ners [UNANIMOUS]
Distributions – P’ner cannot demand profit distribution but is entitled to have her account creditited with her share of prifits
Transfer of P’ship O‘Ship – A partner has a transferable partnership interest, i.e. a partner may transfer the right to share in the profits and losses of the partnership and/or to receive distributions. Any other rights cannot be transfered, unless PA provides otw
- The transfer or assignment may include his entire interest or only part of it
- Such a transfer does not trigger dissolution or dissasociation of that P’ner from the partnership (A transferor will remain a partner with all the associated rights and duties apart from an interest in the distributions transferred)
- Rights of Transferee
- A transferee is not entitled to participate in the management or conduct of the partnership business or access partnership records.
- A transfer of a partner’s partnership interest does not make the transferee a partner unless the other partner or partners consent to making the transferee a partner
- Right to receive distributions, seek judicial order of dissolution (and to get accounting upon dissolution)
- A transferee is not entitled to participate in the management or conduct of the partnership business or access partnership records.
Right to P’ship Property – any property acquired by p’ship (or with p’ship assets) is owned by p’ship, not p’ner individually.
- P’ners have equal right to use prop for P’ship purposes
- But personal use of p’ship property requires consent of other partners
- Cannot transfer o’ship interest in p’ship property
- Separate v. P’ship Prop
- Prop acquired in name of p’ner is rebuttably presumed separate property as long as:
- (i) no p’ship assets or P credit used to acquire
- (ii) Title to prop does NOT reference p’ship
- If that does not solve look at use, tax treatement, source funds to maintain prop
- Prop acquired in name of p’ner is rebuttably presumed separate property as long as:
Renumeration (payment for P’ner Servs) – P’ner not entitled to remuneration for services performed for p’ship UNLESS (A) PA to contrary or (B) reasonable compensation for services while winding up
Advance Funds + Reimbursement,– P’ship must reimburse p’ner for advance to p’ship beyond thier capital contribution amount
- (1) Payment must be in proper course of p’ship biz and (2) p’ner must comply with DOC and DOL
Indemnification – p’ship required to indemnify p’ner for PL incurred in OCB
Access to Records – (mandatory) PA cant restrict this right unreasonably; P’ship must permit its p’ner and thier agents to access or copy all p’ship records in biz hours; gotta give any info on demand concerning p’ship biz unless unreasonable or improper, not on demand must give info relevant to p’ner to excercise rights and duties under PA
19
Q
Dissociation P’ship [this card is crazy]
A
P’ner can w.draw at any time and without notice
Events triggering Dissociation
- Voluntary Dissociation – p’ner gives notice of w/drawl to p’ship
- cant prevent withdrawl all together in PA
- can provide that it be in writing (which is not generally required)
- Involuntary
- Occurence in PA
- Expulsion event in PA
- expulsion by unanimous consent of p’ners if
- (a) unlawful to continue to carry on with the p’ner or
- (b) person transferrred all interest to assignee (not for security purposes)
- Judicial Expulsion (PA cant prevent this) if:
- (a) p’ner engaged in misconduct that adversely and materially affected the business
- (b) willfully and persistently caused a material breach of PA
- (c) breached duty to P’ship or P’ners
- BR (or assign interest to creditors)
- Incapacity/Death
- Appoint PR/Reciever
- Termination of Entity P’ner
Wrongful Dissociation
- Dissociation deemed wrongful if:
- If at will p’ship –> A p’ners dissociation is wrongful only if it is in express breach of an express provision in the P
- If P’ship for definite term/undertaking –> dissociation wrongful if it occurs before the completion of an agreed upon term or undertaking
- Effect on P’ner
- A p’ner who wrongfully dissociates is liable to the p’ship and other p’ners for damages caused by the dissociation.
- In addition, a dissociated p’ner generally does not have the right to participate in the mgmt or conduct of the p’ship biz AND cannot participate in the winding up.
- Payout
- If decide to wind up
- the dissociated p’ner is not entitled to any payout until the end of the original term unless the p’ner can prove to the court that earlier payment would not cause undue hardship to the business
- If other p’ners decide to continue
- entitled to have interest bought out, but since liable for damages they may not be entitled to anything if damages > buyout value
- generally if WD person serves demand for payout, other p’ners must pay + interest w/in 120 days, otherwise can use judicial action to determine buyout price and compel payment
- If decide to wind up
- Effect on P’ship
- Wrongful dissociation may, but does not necessarily, result in dissolution of the p’ship.
- Wrongful dissociation or death of p’ner creates a possibility of dissolution, if within 90 days of dissociation, a maj of remaining p’ners express a will to wind up the biz.
- If remaining p’ners decide to continue the business, they could buy out the dissociating p’ner interest (value = greater of liquidation or going concern value + interest), less any damages caused by his wrongful dissociation, and continue the business as is.
- if P’ship purchases interest, must indemnify against p’shp liabs, whether incurred before or after dissociation, unless due to that p’ners actions
- If remaining p’ners decide to continue the business, they could buy out the dissociating p’ner interest (value = greater of liquidation or going concern value + interest), less any damages caused by his wrongful dissociation, and continue the business as is.
- Wrongful dissociation or death of p’ner creates a possibility of dissolution, if within 90 days of dissociation, a maj of remaining p’ners express a will to wind up the biz.
- Wrongful dissociation may, but does not necessarily, result in dissolution of the p’ship.
Rightful Dissociation – The dissociation is rightful—that is, dissociating partner has no obligations to the other p’ners—when the p’ship is at will and the dissociation breaches no express provision in the p’ship agreement, or the PA so provides.
- Effect on P’ner
- If the dissociating p’ner is not wrongful, the p’ner is not liable for damages and would retain the right to participate in the dissolution and winding up the p’ship (and actions during that time can bind p’ship)
- Effect on P’ship
- Once a P’ship has been dissolved, but before winding up of biz is complete, the p’ship may choose to resume carrying on its business as if dissociation never occurred.
- To do so, the p’ners (including any rightfully dissociated p’ners) must agree to waive the right to terminate the p’ship within 90 days of dissociation.
- A person winding up the p’ship biz may preserve the biz or property as a going concern for reasonable time to max value.
- Once a P’ship has been dissolved, but before winding up of biz is complete, the p’ship may choose to resume carrying on its business as if dissociation never occurred.
20
Q
Dissolution P’ship
A
To terminate a p’ship there needs to be (1) an event causing dissolutoin and (2) winding up – not terminated until wound up
(1) Events Causing Dissolution – Unless OTW agreed:
- (a) occurence of event agreed upon in PA
- (b) event that makes it unlawful for all or substantially all p’ship biz to continue unless it can be cured w/in 90 days
- (c) judicial determination
- (i) sought by P’ner
- econ purpose of p’ship frustraetd unreasonably
- another p’ner conduct makes it not reasonably practicable to carry on with that p’ner
- not otherwise practicable to carry on p’ship biz in accd with PA
- (ii) sought by transferee of p’ship interest
- after term expires if fixed OR at any time if at will or after charging order issued
- (i) sought by P’ner
- (d) [if p’ship at will] notice of p’ner express will to w/draw (dissociation)
- majority express will to wind up
- (e) [if for fixed term]
- expir term or undertaking complete
- if keep going, presume agreed to continue as p’ship at will
- all p’ner agree to dissolve wind up
- w/in 90 days p’ner associating (death/BR/WD) + majority express will to wind up
- expir term or undertaking complete
(2) Winding Up
- Who
- any p’ner not WD can participate
- legal rep/last surviving p’ner
- any p’[ner/transferee/legal representative who seeks judicial wind up
- What do they do?
- dispose of p’ship assets + distribute to:
- (1) outside creditors
- (2) inside creditors
- (3) p’ner captial contributions
- (4) any surplus distributes evenly or accd to PA (if insufficient share in losses)
- dispose of p’ship assets + distribute to:
- Waiver
- Once a P’ship has been dissolved, but before winding up of biz is complete, the p’ship may choose to resume carrying on its business as if dissociation never occurred.
- To do so, the p’ners (including any rightfully dissociated p’ners) must agree to waive the right to terminate the p’ship within 90 days of dissociation.
- Once a P’ship has been dissolved, but before winding up of biz is complete, the p’ship may choose to resume carrying on its business as if dissociation never occurred.
21
Q
Actions for Misconduct P’ship
A
A p’ship may pursue legal action against a p’ner for breach of the P’ship agreement or for violating a duty owed to the p’ship that caused the p’ship harm. A p’ner may pursue legal action against the p’ship or another p’ner to enforce the p’ner rights under PA or RUPA. In addition can seek an accounting as to the p’ship business.
22
Q
Reqs for Valid Marriage
A
- consent from both parties
- need capacity to give consent
- marriage license
- reqs
- meet min agre req
- fulfil waiting period
- complete premar med testing if reqd in state
- marry before expir
- will not give license if:
- bigamy
- too closely related
- marraige sham
- parties cant understand nature of act
- reqs
- ceremony
23
Q
Common Law Marraige
A
(1) have legal acapacity to marry
(2) cohabitate
(3) present intent to be marreid
(4) hold EO out as spouses
24
Q
Annulment (Void Marraige
A
(i) Bigamy
(ii) incest
(iii) mental incapacity
only defense - remove impediment, but that makes it voidable
25
Annulment (Voidable)
1. underage
2. impotence
3. intoxication
4. fraud/misrep/duress/coercion/force
5. lack intent
26
Premarital Agreements
Are a K arrangement executed by spouses prior to marriage; generally enforceable UNLESS procured by fraud duress or coercion.
Most Jx Require:
1. Full Disclosure
2. Voluntary
3. Fair and Reasonable Terms
4. In Writing Signed by Both (party to be charged)
UPAA requires party against whom enforcement sought to prove by CCE that the agremeent was:
* (1) involutnary (f/d/c)
* ct will consider:
* whther opp to be repped;
* length of time b/t agreement and wedding;
* party abilty to understand txn; r
* easons for proceeding w/ marraige
* (2) unconcionable when EXECUTED +
* (i) not provided full and fair disclosure of relevant info
* (ii) didnt waive dislosure
* (iii) did not know or have reason to know such information
Mods -- ct will uphold cant modify, but can and will override provision related to CS
Other Rules
* No consideration required, marriage is valid consid
* Ct may invalidate the agreement if it leaves one spouse woefully impoverished and he becomes dependent on state
* Provisions relating to CS and CC = unenforceable
* any provisions that adversly FX kid right to support are unenforceable
* Spousal Support
* UPAA can mod or eliminate SS in prenup but not if it makes spouse elgible for welfare, ct can order to provide upt t that
* other states -- invalid bc against PP
* Can agree to any other matter not violate PP or crim law
* $ shit not binding on 3Ps
* limits on support during marraige are invalid bc PP
generally governed law of state with MSR
27
Jx in Marital/Divorce Actions
For Marital/Divorce -- State Cts have SMJ
Ex Parte Divorce -- may be maintained without PJx over absentee spouse only if P spouse is domilliary of the rendering states; many states have durational residency requirements before you can bring divorce action (6 mo- 2yr?)
* Divisible Divorce --\> one spouse can terminate the marriage (ex parte divorce) in one proceeding, and then reserve other issues in later
Economic or Child Custody/Support Issues --\> Ct must have PJx over D spouse
28
Division of Property
Equitable Division Approach (Most States)
* The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties.
* _Separate Property_ includes
* property acquired before marriage
* gifts and bequests (even if during marriage)
* property that spouses agreed would be separate through valid agreement
* passive appreciation of assets
* award/settlement that paid during marriage but accrued before
* ~property acquired after separation - split Jx
* some states prop acquired after perm sep = SP
* others, accrual MP ends upon final divorce decree
* In most states, all property acquired during the marriage is _marital property_ and subject to equitable distribution, including:
* (1) active appreciation - caused by effort of a spouse
* (2) future expectancies (even if payment not until after marraige ends
* (3) gifts between spouses
* Procudure
* all martial MP is pooled, and then divided among spouses. Ct considers:
* duration marraige
* age/health of spouses
* econ status at divorce
* earning capacity
* income
* SP of each
* lifestyle
* custodianship of kids
* ~ econ misconduct in some states (usu only dissaption of assets)
Cohabitating Couple Division of Property
* Party who has title retains sole o'ship unless
* (1) agreement b/t cohabitants (may be express or implied)
* express - enforceable unless consideration = sexual relations
* implied -- ct can find implied in fact K if parties comingled funds during relationship
* (2) equitable remedy theory
* ct will generall provide equitable distribution based on the following theories to avoid UE
* constructive trust -- one party obtained title thru wrongful conduct
* resulting trust -- title in one party name, but another party give $ to acquire prop w intent to have o'ship
* quantum meruit -- one party UE by services provided by another
29
Spousal Support
Spousal support is the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if one spouse cannot provide for own needs with employment.
Purpose is to maintain a spouses strd of living and limit any unfair econ effects of divorce
UDMA only awarded if spouse:
* (1) lacks sufficient property and
* (2) is unable to support him/herself thru employment OR custodian of child with condition where spouse cannot seek employment
Ct will consider:
1. financial resources
2. time necessary to obtain a job
3. stadard of living during marraige
4. duration of marraige
1. short \<7 yr
2. moderate 7-15/16
3. long 16+
5. age and physical and emotional condition
6. contributions to marraige
7. children
8. ~ some states will also consider marital misconduct or fault
Types:
1. Permanent Alimony -- award for remainder of dependent spouse life, unless certain circumstances occur. the purpsoe is to coempnsate Dependent spouse for either lost earning capacity or benfit conferred to the other spouse during marraige. Typically only awarded for long marraiges.
2. Lump Sum -- get all at once, cant change unless fraud
3. Limited Duration -- usually only if no other kind makes sense
1. if STM cant exceed length marr
2. if LTM -- can award if no need for permanent
4. Rehabilitative -- to help spouse re establish self and become independent; auto termiantes at end of period
5. Reimbursement -- compensates spouse for financial sacrafaices during marriage
1. some jx handle this as reimbursement in prop div
6. Palimony (some states) -- unmarried cohab in stable and LT relationship
Terminates upon death of paying spouse, usually not part of estate unless ct specifies, but must pay overdue; also could terminate on remarry or cohabitation
Modification if there is a substantial, continuing change in circumstances in needs of dependent spouse or of financial abilities of obligor that makes the prior order unreasonable; burden on party seeking modification
* Jx -- state ct with continuing J may modify existing order; another state cant modfiy order rendered by ct of continuing Jx unless
* (i) the parties, including the child, no longer reside in state OR
* (ii) parties expressly agree to permit state to excercise Jx
30
Child Support
A biological parent is legally obligated to pay child support. Such an order is based on the childs needs.
* Award typically based on income from any source and includes wages, interest and divs, rental incxome, and other income from retirement benny, capital gains and SSI
* Deviations from the CS formulas are permitted as circumstances warrant. The court must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the guidelines
* enforced (as well as SS) thru civil contempt, income witholding, or withollding tax refund
In most states child support terminates at 18, becomes emancipated, or upon the death of the payor (some states allow to access deceased estate)
* some jx when kid goes to college
* disability
* if kid getting HS degree
* kid marries/gives birth
* TPR
* child emancipates (not enough just that he has a job though)
* child dies
Modification
* Jx --
* Modification of CS orders is governed by UIFSA.
* Under UIFSA a state court does not have Jx to modify an order of CS rendered by a court of another state if the original state has continuing, exclusive jurisdiction. The rule applies unless the parties, including the child, no longer reside in the state or the parties expressly agree to another state’s Jx.
* Standard
* Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child’s needs or the parent's financial situation.
* The parent requesting the modification has the burden of showing a substantial change in circumstances like a significant decrease in income.
* Generally, courts will not permit a modification if the change was anticipated or voluntary; the court might impute income to calculate the support and a voluntary modification alone is not enough to trigger a modification. However, a court might grant a modification if it was sought in GF and there will be no hardship to the child.
*
31
Getting Jx on OOS Spouse (support and parentage?)
1. personal service
2. consent/enters an appearance
3. past residency with child in state
4. past residence in state, not with teh child, but provided support
5. D directed the child to reside in the state
6. D conceived child in the state
7. asserted parentage via putative father registry in state
8. any other PJx that comports with federal/state procedure
32
Parent v. 3P Custody
* The Supreme court has held that a fit parent has a fundamental right to care, custody, and control of his children and state courts must give “special weight” to a fit parent’s decisions on care, custody and control
* As such, legal parents are presumptively entitled to custody of their children in cases against third parties, including GP or stepparents, absent a finding the parent is unfit or that awarding custody to the legal parent would be detrimental to the child.
* If a natural parent has had little or no contact with a child, or if the child has lived with 3P for an extended period of time, courts have employed the parent by estoppel and de facto parent doctrine to get around this presumption.
* A minority of the jurisdictions apply the best-interests-of-the-child standard in all custody cases, even those between a parent and a third party.
* However, such a standard may run afoul of a parent’s constitutional rights.
* Most courts will consider the wishes of the child if the court can determine that the child has sufficient maturity to express a preference.
* Although age is not the sole factor in determining whether the child should be consulted, it is considered by the court.
* If the children are consulted, the court evaluates the reasons behind the preference.
33
Child Custody/ Best Interest of the Child
The standard for determining child custody is the best interests and welfare of the child. Generally, a parent is in the best position to care for a minor child unless the parent is determined unfit. Generally joint physical custody is preferred.
Factors:
* Most courts consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody.
* also will look at age, financials, and health of each parent
* will consider new partners in each parent's life
* the effet custody will have on child relationship with extended family
* Most Courts will consider the wishes of the child if the court can determine that the child has sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child could be consulted (i.e. it is not determinative), it is considered by the court. If the children are consulted, the court evaluates the reasons behind the preference.
* Can’t use race/religion/sexual conduct (unless detrimental)
* Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody and some jurisdictions have created rebuttable presumptions in favor of the non-abusive spouse.
* Court generally aboid separating siblings
* generally wont consider sexual behavior unless it is detrimental to child
Modification
* Jx -- UCCJEA
* Standard -- modification is allowed only if there is a substantial change in circumstances. The change must generally be substantial and unforseen at the time final judgment was entered. Modification must be in the BIOC and promote stability
* some jurisdictions have also applied time barriers before an application for modification can be filed absent consent or endangermen
34
Child Custody & Adoption Matters Jx
Most states have adopted the Uniform Child Custody Enforcement and Jurisdiction Act (“UCCJEA”). The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and requires the court to have subject-matter jurisdiction.
Ct must have SMJ to issue or modify child custody order; PJ or physical presence of a party or child is not necessary
_(1) Home State_ -- In an initial custody determination, a court has subject-matter jurisdiction to enter custody orders if the state is the child’s home state. A state is the “home state” when
* (i) the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding (of if less than 6 mo old, since birth) or
* (ii) the state was the child’s home state in the past six months and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.
* A court can decline jurisdiction if the party has wrongfully removed a child from another state.
(2) _Significant Connection_ -- If there is no state with Home State Jx -- UCCJEA permits a court to enter or modify an order if
* (i) the child and at least one parent have a significant connection with the state, and
* (ii) there is substantial evidence in the state concerning the child’s care, protection, training and personal relationships.
(3) _Appropriate Connection Jx_ -- if no court has home state or significant connection Jx, then a court has Jx if the child has appropriate connections
Other
* _Emergency Jx_ -- child is physically present in the state + child is abandoned OR it is emergency to protect child
* themis - Child is in danger + requires immediate protection
* but if prior custody order in place, new ct must allow time for parties to return to that prior court to argue the issues
* if no prior cust order ten emergency stays in place until home state changes
* _More Appropriate Forum Jx_ -- both (1) and (2) can decline to excercise Jx evaluating the circumstances [like FNC]
* DV occured and is likely to continue in first state
* length child has resided outside jx
* parties financial circumstnace s
* agreement of parties
* nature and location of relevant evidence
* each ct ability to decide issues expeditiously and procedures necessary to present evidence [where evidence and procedures located]
* familiarity of each state ct with facts and issues
The court that made the initial ruling in the custody case continues to have Jx until:
* (A) all parties no longer reside in state OR
* (B)
* child no longer has significant cxn to state and
* no substantial evidence of child's condition continues to be available in the state
* (C) issuing state determines another state is more appropriate (denies Jx)
_Enforcement_
* FF+C allows for custody and visitation orders to be enforced if OG order was registered in the second state, generally new ct cannot modify the order unless meet UCCJEA reqs
35
Agreements between Cohabitants
An agreement for the division of property between unmarried cohabitants may be express or implied.
* An express agreement (oral or written) between unmarried cohabitants is enforceable as long as it was not based on sexual relations.
* An implied agreement is also enforceable, but is generally more difficult to prove.
* A court may find an implied-in-fact contract regarding the division of property if the parties comingled funds during the relationship.
36
Paternity
Paternity may be established by:
1. Birth Cert
2. Legal Presumption
1. Marital Presumption -- child born to a married woman is presumed to belong to the womans husband.
1. Some states -- wife is estopped from denying Hs paternity
2. 50% states -- allow wife to present evid H is not father of child (impotent, sterile, not accessible)
3. Some -- allow ct to exclude evidence of moms rebuttal if not in BIOC
3. Unmarried parents voluntarily sign an acknowledgement of paternity
4. Unmarried bio father successful challenge of a presumption ?
5. Paternity suit
* can be brought at any time (otw DP issue)
* some jx POE some CCE
6. Paternity by estoppel -- held self out as a father and paid support/assumed parental responsibilities
* Estoppel may require H who is non marital father to pay child support if:
* H said he would pay it; W relied on it and W would suffer Econ detriment from relying
Nonmarital Kids become marital if:
* parents marry after birth
* 3 ^
* 6^
* judicial decree
Once paternity is established the right to custody and visitation attaches and the duty to support also attaches
Evid ct considers
* prior stmt regarding parternity by deceased fam members
* medical testimony based on prob conception/blood tests
* D own knowledge/acknowledgement of pat
* (some states) the resemblence b/t child and parent
37
COL - Vested Rights Approach
Territoral approach, looks to the Jx where the parties rights have _vested_
* this is usu the palce where the act/relationship that gives rise to COA occured; generally the place where the last legally significant event occured
38
COL -- MSR
The law of the state having the MSR to the txn and parties will govern.
* Under this approach there are certain presumptions for different kinds of substantive issues; but ct will evalute the guiding princples to see if the presumption should apply in the case
* Guiding Ps
* (1) promote relevant policies of forum and interested parties
* (2) advancing systeming interests (certainty, unifority, predictability, simplicity)
* (3) protecting the justified expecatioons of parties w/r/t planned txns
39
COL -- Gov Interest
Under the government interest approach, it is generally presumed that a state will apply forum law, but parties can request different law to be used.
* If that occurs, the ct will weigh the interest of the states involved, specifically it examines:
* (i) the connection each state has to the parties and events
* (ii) the differences behind each state's laws
* (iii) the underlying policies behind each state's laws
* (iv) and it applies the laws to the facts to detemrien which state has a greater INTEREST in having its laws applied
* ct has interest if:
* (1) conduct regulating law AND harm occured in territory or caused injury within territory OR domiciliary injured
* (2) loss shifting law AND applying law would benefit a domiciliary
* if
* (1) one state interested and the other is not --\> apply the interested state's law
* (2) if both interested --\> generally apply forum law, unless no interest
* (3) if neither interested --\> generally apply forum law
40
COL Rules Torts
RST 1 -- law of place where wrong committed
RST 2 -- place of injury unless another state MSR, generally apply forum law unless strong reason not to. Looks at specific contacts:
* place injury
* place where conduct causing injury occured
* domicile/residence/incorporation/PPB of parties
* where relationship b/t parties centered
41
K COL
If K has COL provision
* For K Construction -- parties to K free to choose law to be applied
* For K validity -- COL provision not determinative; parties may apply COL only if:
* (1) state has some cxn to K
* (2) K not entered into via fraud, duress, mistake
* (3) COL chioce not contrary to a substantive policy interest of another state that has MSR
If no COL
* RST 1 -- either place of
* (a) contracting --- usu the last place of legally signif action (Acceptance)
* governs formation, interpretation, validity, defenses
* (c) performance -- governs perforance issues
* RST 2 -- can use COL provision if chosen state has SR to parties and txn or some reasonable basis for the choice; COL will be denied if contrary to a PP of state with MSR
* contacts cts condiser:
* place King, negotiation, perforamnce
* location of SM of K
* domicile/residence/PPB/incorporation of parties
* Default rule = location of performance and negotiation if the same
42
COL Premarital Agreements
enforcability governed by the law either
(1) where executed
(2) has MSR
* where A signed
* parties married
* parties lived when M
* currently living
* assets
* kids born
43
COL Property
Immovables -- law of situs, incl COL (both RSTs), unless land incidental to K (then use K rules)
Movables
* tangible -- usu UCC provides, if it doesn not both RST say law situs, unless another state MSR
* intangible -- law state created or MSR
44
COL Wills
immovables - law situs
movable -- (CL) T domicile at death
validity -- (CL) T dom @ death; (UPA) T dom @ death + where executed
45
COL Family Law Issues
Marraige
* Generally
* In general, marriages are valid where they took place and are recognized in all other states. Despite the FF+C of the US constitution, under COL principles, a state need not recognize a marriage valid under the law of the place it was contracted if it violates a strong PP of the state asked to recognize the marriage. It is likely that if two individuals who reside in a state permitting CL marriage meet that state’s requirements for CL marriage, the recognition of the marriage does not violate public policy.
* Annull -- Jx M occured to see if permit anull
* Divorce/MP
* grounds for div -- P domicile
* MP/SP
* RP -- law situs
* PP -- law of domicile
* legitimacy -- domicile of parent in quesiton
* legitimation -- law parent domicled when legitimacy claimed to be create OR child domiciled when parent acknoweldged
* adoptoin -- forum state
* Premarital Agreement
* (minority) where executed
* (majority) MSR
46
FF+C
FF+C Clause provides that FF+C shall be given in each state to public acts, records, and judicial proceedings of every other state
* Judgment entitled to FF+C when:
* Valid -- rendering ct had Jx (PJ/SMJ)
* incl even if waive
* judgement by ct without Jx not entitled FFC, as long as parties did not litigate issue of JX in OG action
* i.e. if you make Jx argument and lose or litigate on merits you waive
* case was decided on the merits
* substantive issues decided by ct
* SJ/MTD/DJ
* not -- dismissal for lack Jx or w/o prej
* judgement was final
* no outstading appeals, judgement not modifiable
States
* FF+C for sister states
* required to give federal judgement the same force and effect it woudl be given under the preclusion rules of the state where rendering ct sits
Federal
* federal courts must also give full faith and credit to state-court judgments.
Doctrine of Comity -- ct MAY but is not required to give FF+C to judgements from foreign countries
Last in time rule -- arises when VFJ is incoinsistent with another VFJ, most recent judgement is entitled to FFC
47
Defenses to Prevent Use of State's Law
(1) Penal Law exception
* under all 3 approaches ct generally will not enforce penal/criminal laws of aontehr state
* laws that provide civil recovery are not penal nor are tax laws
(2) PP exception (1,2 not 3)
* ct can refuse to apply foreign law if it violates fundamental and strongly held PP of the forum
* narrow, only applies if enforcement would violate principles of justice or deepely rooted morals or traditions
* if it works dismissed w/o prej
* can be used to reject foreign COA but not defense
(3) S/P Distinction
48
COL Constitutional Issues
[before a state can choose to apply its own law] Pursuant to FF+C and DPC, state may apply its own substantive law to an issue only if the state has significant contact OR aggregation of contacts with the issue such that the application of its own law is neither arbitrary or fundamentally unfair
under FF+C state may not refuse to entertain claims under another state law simply bc that law comes from anotehr state
49
Intestate Successoin
Intestacy is the default statutory distribution scheme. It applies when, an individual dies without disposing of his property through a valid will.
Intestacy statutes generally favor the decedent’s surviving spouse and issue, followed by the decedent’s other relations.
* The most common statutory intestacy scheme assumes that the decedent would wish for the SS to succeed to all his property with the surviving issue.
* If D leaves SS, no issue, and surviving parent --\> SS gets 300k + 75%
* If D leaves SS, issue with SS, and SS with other issue --\> SS gets 225k + 50%
* If D leaves SS, and SS has other issue --\> 150k + 50%
* If no SS or issue then property can be distributed to Ds ancestors and more remote collateral relatives.
* Under the _Parentelic approach_, detailed in UPC, collateral lines are followed until a live taker is found, at which point the Ds property is distributed. A Ds estate would first pass to the Ds parent’s and their issue (the D’s siblings).
* If there are non, then to the Ds GP and their issue (uncles/cousins) and so on.
* Under the degree of relationship approach, those with closer degrees of relationship to the D take to the exclusion of more remote relatives.
* The degree of relationship is calculated by counting the number of relatives between the living taker and the D using the closest common ancestor.
* In many states, the Parentilic approach is then used as a tiebreaker in the event that the degrees of relationship approach results in a tie between living takers, with those in the closer collateral line take to exclusion of those more remote.
50
Issue
In order to take under a will or by intestecay there must be a P/C relationship. To be classified as issue, must have P/C relationship with D.
* Marital Children -- presumed to be a natural child
* poshumously born child -- presumed to be child of NF if born w.in 280 days death; otw burden shift to show
* Adopted child -- treated like bio child for inheritance purposes
* Generally no inheritance rights b/t AC and biological parents
* Except if stepparent adoption.
* Under the UPC and maj of Jx, adoption establishes P/C relationship b.t stepparent and child, including full inheritance rights in both directions.
* Foster child -- generally not P/C unless equitable adoption
* Non Marital Child
* CL rule was that if a child was born out of wedlock, he could not inherit from his natural father.
* Most Jx provides that an out of wedlock child can inherit from his natural father if
* (i) the father subsequently married the natural mother;
* (ii) the father held the child out as his own and either received the child into his home or provided support;
* (iii) paternity was proven by CCE after father death;
* (iv) paternity was adjudicated during the LT of father by POE.
* Further SCOTUS has held that a statute is unconstitutional if it denies inheritance rights to a nonmarital child when paternity has been established during the father’s lifetime. So a state law excluding nonmarital children from inheritance, regardless of whether paternity has been established, is unconstitutional.
51
Will Execution Formalities
Generally, a will is valid if it complies with the applicable state law.
Most States Require:
1. _A writing_
* generally no oral wills unless PP dispose and death imminent
2. _signed_ by the T
* placement -- Jx split
* at end or not valid
* anywhere is fine, but stuff after invalid
* mark as signature ok as long as TI clear
3. _Witnessed_ by at least 2 Ws
4. that was made with p_resent testementary intent_
* at leats 18 y/o and of sound mind
* TI presumed
* T must know:
* nature and character of her property and the act
* the persons who are the natural object of T bounty
* and the disposition that the T is attempting to make/test plan
* must know of and approve will contents, need not read or understand every provision
Misc Witness Rules
* Signing
* (Majority) T/W must sign the will in joint presence of one another
* 2 tests for presence
* (traditional/minority) line of sight -- must be able to see sign or have opportunity to see eachother sign
* (majority) concious presence -- T/W must be aware that EO sign
* (Minority) Ws can sign within rsnb time after witnessing T sign or asknowledge signature
* Ws need not sign at end of will
* need not sign in presence of EO
* must be aware it is a will and understand significance but need not read
52
Interested Witness
(CL) will must be witnessed by 2 disinterested Ws to be valid
(Modern) even if a W is interested (taking under will) not invalid if:
* heir and not take more than intestate share OR
* 3 witnesses total (2 uninterested)
53
Codicil
A codicil is a supplement to a will that alters, amends, or modifies it.
* A codicil must be executed with the same formalities as a will.
* A validly executed codicil republishes the will as of the date of the codicil.
* However, a codicil cannot republish a will that was originally invalid (unless only invalid bc interested witness statute).
* If a codicil attempts to republish an invalid will, then only the codicil will be valid, unless the codicil refers to the will with sufficient certainty as to incorporate it by reference.
* A will may IBR another writing provided that the other writing existed at the time the will was executed, is intended to be incorporated and is described in the will with sufficient certainty so as to permit its identification.
If a second will has a residuary clause and the first did not --\> new will that revokes the first by inconsistency
If first will has residuary but second does not --\> generally a codicil
if first had residuary clause and second did not
54
Holographic Will
A holographic will is
* (1) in a Ts handwriting
* some states need whole thing in HW, others just material provisions
* some states need TI from HW part otehrs not
* can modify a holo (some states require another sig some dont
* (2) signed by T,
* (3) and need not be witnessed
can do a holographic codicil to a attested will and vice versa
55
Incorporation by Reference
A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements:
* (i) it existed at time the will was executed,
* (ii) the testator intended the writing to be incorporated, and
* (iii) the writing is described in the will with sufficient certainty so as to permit it’s identification.
UPC -- bequest of tangible PP (other than $$) will be incorp if:
* signed by T and item and devisees are described with reasonable certainty
* need not be in existence at time of execution
56
Acts of Independent Significance
designation of a benef or disposition by reference to some unattested act or event occurring before or after execution of the will or T death if the act or event has some significance apart from the will
~generally AOIS if the act is in the future
acts or events with significance outside will making process
57
Revocation of a Will
(1) Act
* A will is revoked by physical act if:
* (a) T intended to revoke the will
* (b) it is burned, torn, destroyed, or cancelled by T or someone at his direction
* (CL) words of cancellation valid only if they come in physical contact with the cancelled words fo the will
* (Modern) words of cancellation are valid if written anywhere on the will
* Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation
(2) Subsequent Instrument
* T may revoke a will by executing a subsequent will or codicil
* to the extent possible courts will read the two together
* however, the later document controls and revokes any provisions that are inconsistent with it from W1
* As such, revocation is generally only valid to the extent of inconsistenceys, unless the new will expresly revokes the previous will in its entirety
(3) Operation of Law
* Divorce
* (Most Jx) divorce revokes provisions in will in favor of former spouse unless contrary to TI
58
Revival
Revival of an Earlier Will
* (CL) automatically revived if subsequent will was revoked
* (Modern/UPC) -- looks to TI and revival of earlier will depends on how the revocation of the will that revoked the first is revoked
* (1) if W2 revoked by physical act -- ext evidence admissible
* if it is fully revoked - presume did not intend to revive W1 (burden on proponent of W1)
* if partially revoked -- presume that T wanted to revive the parts of the first will that the currently revoked will revoked (burden on the challenger of W1)
* (2) if revoke the second will through a subsequenet document (no ext evidence)
* the will that was previously revoked is only revived if the terms of the third document show that T intended the first will to be revived
revocation of a codicil revives the will; revocation of a will revokes all codicils
59
Construction of Wills -- Ambiguity/Mistake
Under the general rule of construction, a will speaks as of the time of death. Courts are reluctant to disturb the plain meaning of a will regardless of mistake.
* However, if there is an ambiguity, courts allow extrinsic evidence to resolve it.
* Traditionally, courts distinguished between patent and latent ambiguities, however many states no longer make this distinction.
60
Lapsed Gifts
Under CL, if a benef died before the T or before a point in time by which he was required to survive under the will, the gift failed and went to the residue unless the will provided for an alternate disposition.
Today, almost all states have anti-lapse statutes that provide for the alternate disposition of lapsed gifts.
* Typically, an anti-lapse statue will save the gift if:
* (i) the gift was made to a benef related to the testator by blood within a certain degree of relationship [i.e. not husband], and
* (ii) that benef is survived by issue,
* (iii) the will does not expressly state the contrary.
* If a gift is not saved by the anti-lapse statute, it falls to the residuary (if there is one, or itestacy if not?)
61
Abatement
Gifts by will are abated, i.e. reduced, when the assets of the estate are insufficient to pay all debts and legacies.
If not otherwise specified in the will, gifts are abated in the following order:
* (i) intestate property
* (ii) residuary bequest
* (iii) general bequests and then
* (iv) specific bequests
* generally specific can only abate to satisfy generally if the T intends
* generally demonstrative treated as specific
Abatement in each category is pro rata [i.e. if leave to 3 divide amount you have by 3]. Each category must be fully abated before moving on to a different one
62
Types of Property
Specific gift -- proeprty distinguished w reasonable ccuracy from T other proprety
General -- PP intended to be satisfied from general estate assets
demonstrative -- prop to come from particular source
residuary -- all remaining after (non interest bearing)
63
Ademption
(1) Ademption by Extinction
* (CL) If the SM of specific bequest is missing or destroyed (extinct) the benef takes nothing. The property is adeemed regardless of T intent.
* (UPC) the bequest is adeemed only if the facts and circumstances establish that ademption was intended.
* If no intent adeem the UPC permits a benef of a specific gift to take the property acquired by the T as
* replacement property or
* monetary devise equal to the value of the gift
(2) Ademption by Satisfaction/Advancement
* (Cl) gift to heir during T lifetime were considered advancements on that heir intestate share of the estate
* amt of gift deducted from heir share of estate
* (UPC) not ademption by satisfaction UNLESS express writing
* (a) will provides for deduction OR
* (b) writing indicated that property was in satisfaction of devise or that its value will be deducted from value of devise
64
Slayer Statutes
If a beneficiary _feloniously_ and _intentionally_ kills a D --\> he forfiets all gift,benefit, entitlements under will or intestacy
* conviction after appeal is conclusive
* may be based on POE proven during a probate or related court proceeding
* Durable HC Directive --\> witholding medical treatment is NOT considered felonious and intentional
65
Disclaimer
= renouncing legal right to inheritance
effective disclaimer must be:
* declared in writing
* describe interest/power being disclaimed
* be signed by person making disclsimer
* be delivered or filed
Timing
* CL -- must be w/in reasonable time
* Some states -- must be made w/in 9 mo death
* UPC -- can be at any time (so long as disclaimer not barred (i.e. accepts or transfers interest)
If disclaimed
* property passes accd to will/trust OR
* treated as if person predeceqsed T (lapse unless anti lapse statute saves it)
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Pretermitted Children
[after born child omitted] Child born or adopted AFTER execution of will raises a rebuttable presumption that it was accidental; can be rebut if:
* (a) intentionally omitted
* (b) D provided for kid outside will and intended that to be in leiu of will
* (c) T haad other children when the will was executed and left the estate to the other parent of omitted child
[alive child omitted] NOT entitled to share UNLESS child was omitted bc decedent: (a) did not know of kids existence or (b) believed child to be dead
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Testementary Intent
Testator must be 18 and of sound mind; must be able to known and understand:
* (a) nature and extent of propety
* (b) natural objects of bounty
* (c) disposition he is making
* (d) ability to connect above elements into coherent plan
Mental cap presumed, unless proven otw; burden is on challenger
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Undue Influence
When a person exerts influence that overcomes Ts free will and judgement; will is invalid to the extent executed under UI
UI established when:
* (a) T has weakness that made him susceptible to influence (phys/mental/financial)
* (b) wrongdoer had access, opportunity, and motive to exert the influence
* (c) unnatural (unexpected result occured)
CL presumption --\> UI established if:
* (a) confidential relationshiop
* if confidential relationship BOP shifts, burden is on bene to show by POE that no UI, circumstantial not enough
* (b) WD actively partipated in drafting and
* (c) unnatrual result occured
BOP on contestant to show (i) existence and exertion of influence and (ii) fx of it was to overpower the mind and will of the T
Benef treated as though predeceased T to extent gift exceeds intestate share; can be invalidated in whole or in part
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Standing to Challenge Will
only interested parties who stand to benefit financially may contest a will
not
* T general creditors
* spouse of prospective heir of benef under prior will
* pretermitted heir
* ~judgement creditor
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Trust Formation
71
Sec Txn Applicable Law + Scope
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How to Tell Lease v. Sec Txn
UCC Art 9 applies if the substance of a txn creates a SI. Courts will look to the economic reality of the transaction to determine whether it is a lease or SI. Courts generally conclude that something is a SI and not a lease where
* (i) obligations under the lease cannot be terminated early AND
* (ii) the lessor really does not get anything else meaningful of value at the end of the lease term
* e.g.
* OG term = to or greater than remaining econ life of the goods
* leasee bound to renew lease for remaining econ life of the goods
* lessee has optoin to renew lease for remaining econ life for no additional consideration
* lessee has option to become owner of goods for no or nominal consideration
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Account
An account includes the right to payment for property sold, leased, licensed, or for services rendered (such as a company’s accounts receivable).
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Inventory
75
Equipment
76
Consumer Goods
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Proceeds
Identifiable proceeds from the sale/lease/license/exchange or other disposition of collateral --\> SI attaches automatically no matter what SA says
Will also perfect automatically and temporarily to them for 20 days UNLESS
* (1) FS covers proceeds (then will auto perfect?)
* (2) cash proceeds - auto perfect indefinitely
* (3) Same office rule
* Under the SOR, a perfected SI in proceeds may continue indefinitely when (i) the filed financing statement covers the OG collateral (ii) the proceeds are collateral in which a SI may be perfected by filing in the same office as the financing statement, and (iii) the proceeds are not acquired with cash proceeds.
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Attachment
Under Article 9, for a security interest to be enforceable against a debtor, the interest must attach to the collateral. For attachment, three conditions must be met: (i) value must be given by the secured party; (ii) the debtor had rights in the collateral; and (iii) the debtor authenticated a security agreement that describes the collateral (or the secured party has possession or control of the collateral pursuant to a security agreement).
* the basic rule is that a security interest attaches only to rights that the debtor has.
* If a SP has possession or control of the collateral pursuant to a SI then a SA in the form of a record is not required, an oral agreement suffices.
* For a description of the collateral in the SA to be sufficient, it must reasonably identify the collateral. Supergeneric descriptions of the collateral are not sufficient, such as “all the debtor’s assets” / all PP.
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Perfection
Perfection of an attached security interest is generally necessary for the secured party to have superior rights over third parties that have security interests in the same collateral. A secured party can perfect a security interest by (i) filing a financing statement; (ii) possessing the collateral; (iii) controlling the collateral; or (iv) perfecting automatically.
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Financing Statement
A financing statement must contain the debtor’s name, the name of the secured party, and the collateral covered by the financing statement.
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PMSI
A PMSI is a security interest in goods that has priority over other security interests in the same goods. It arises when a creditor sells goods to a debtor on credit and retains a security interest in those goods, or the creditor advances funds, which are then used to purchase the goods and the creditor reserves a security interest in those goods.
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SI in Sale of Collateral & Identifiable Proceeds
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Buyer in OCB
A buyer of collateral subject to a perfected security interest generally takes the collateral subject to that interest, unless the secured party has authorized the sale free of the security interest.
However, a buyer in the ordinary course of business (BIOCB) takes free of a security interest created by the buyer's seller, even if the security interest is perfected and the buyer knows of its existence.
A BIOCB is a buyer who
* (i) buys goods;
* (ii) in the ordinary course of business;
* (iii) from a merchant in the biz of selling goods of that kind;
* (iv) in good faith; and
* (v) without knowledge that the sale violates another's rights.
In order to qualify as a buyer, the purchaser must give new value, which in addition to paying cash for the goods includes purchasing the goods on credit. If a buyer obtains goods under the BOCB exception free of the security interest in the goods created by the buyer’s seller, the buyer may, in turn, sell the goods to a second buyer who also takes the goods free of that security interest. The second buyer is not required to qualify as a BOCB.
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Garage Sale Exception
A consumer buyer of consumer goods takes free of a security interest, even if perfected, unless prior to the purchase the secured party filed a financing statement covering the goods.
A consumer buyer is a person who:
* (i) buys consumer goods for value;
* (ii) for his own personal, family, or household use;
* (iii) from a consumer seller; and
* (iv) without knowledge of the security interest.
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Priority of Perfected and Unperfected Ints
In order to have priority over 3P who has a SI in the same collateral, perfection of SI is generally necessary.
_Secured Party v. Secured Party_
When there are two or more perfected secured parties with rights in the same collateral, the first to file or perfect has priority. In other words, if both security interests are perfected, then priority dates from the time of filing or perfection, whichever occurs first. This is so even if a secured party filed before it had perfected it’s interest.
_Perfected v. Unperfected_
If only one security interest is perfected, and the other is not, then the perfected interest takes priority over the unperfected one.
_Unperfefted v. Unperfected_
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Judgment Lein / Statutory Lein
A judicial lien creditor is a creditor who acquires a lein on the collateral by judicial process, rather than by operation of law. A judicial lien creditor takes the property S2 an perfected SI but generally has priority over an unperfected SI. [SP \> LC \> UP]
Statutory Lein \> SP/UP as long as
* (1) effectiveness of lein depends on LH's possession
* (2) lein secures payment/performance of obligation for services/materials in OCB
* (3) statute does not provide otherwise
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Right to Take Possession of Collateral
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Right to Dispose of of Collateral
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Right to Collect Directly from Account Debtor
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Damages for a SP Failure to Comply with Applicable Rules
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Deficiency Judgement
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Consignment
Where a party (cosignor) has o'ship of goods but gives possession of the goods to another party (cosignee) for purpose of allowing them to sell the goods. Risk is lender could vbe misled into thinking consigned items are inventory of consignee not consignor.
Cosignors must file a FS to protect thier interest when:
* (a) the consignor delivers goods to a M who deals in goods of the kind for the M to sell
* (b) M is not generally known by its creditors to be substantially engaged in the biz of selling goods of others
* (c) value of goods is at least 1k each delivery
* (d) goods must not be CSG immediately before delivery
