MEE subjects Flashcards
1
Q
What type of business entity is an association entered into for profit, contemplating a single transaction or related series of transactions?
e.g. A & E Partners, an association formed to create a building, with the association to dissolve upon the completion of the project.
A
A joint venture. A partnership (general or limited) would require the contemplation (intent) of carrying on an ongoing business relationship.
2
Q
A general partnership may convert to a registered limited liability partnership by…
A
a vote of the partners with a majority share of the interests in the current profits of the general partnership.
Note: a limited partnership (LP) CANNOT become an LLP
3
Q
Under RUPA, the result of a partner’s bankruptcy, or other financial insolvency in a partnership at will is…
A
…dissociation of the partner from the partnership.
In a partnership at will, dissociation of a bankrupt partner does not require dissolution of the partnership. The partners may elect to continue the partnership, but they must buy out the dissociated partner’s interest in the partnership at a price equal to or greater than the liquidation value of the partnership’s assets or the value of the partnership’s assets based on a sale of the entire business as a going concern.
4
Q
Under RUPA, the result of a partner’s bankruptcy, or other financial insolvency in a partnership for a definite term or particular undertaking is…
A
…dissociation of the partner from the partnership/firm, and the partnership must be dissolved within 90 days of the dissociation.
5
Q
de jure vs de facto corporations
A
A de jure corporation is one which has been organized in compliance with the mandatory statutory requirements of the state of incorporation.
When a corporation does not meet the requirements of a de jure corporation, it may be considered a de facto corporation if the incorporators made a good-faith, colorable attempt to comply with the incorporation statute and the corporate principals acted in good faith as if they were a corporation.
6
Q
Liability of a promoter for contracts from before a corporation exists
A
As a general rule, a promoter is personally liable for any contract he entered into on behalf of the corporation that is not yet in existence, whether the contract is made in his name or in the corporation’s name, unless the promoter specifically disclaimed personal responsibility in the contract, or the promoter is released from liability after the corporation is formed. The later occurs if, after incorporation, the corporation accepts such a contract either expressly (by a resolution of the board of directors) or impliedly (by, for example, accepting the benefits of the contract).
7
Q
factors considered when determining whether an opportunity is, in fact, a business opportunity (for the purpose of breach of fiduciary duty)
A
Such factors are: whether the business constituting the opportunity is closely related to that of the corporation, whether the board had expressed an interest in acquiring that type of business, whether the director or officer became aware of the opportunity while acting in her capacity as a director or officer, and whether she used any corporate funds or facilities in discovering or developing the opportunity.
8
Q
Describe the duty to refrain from taking business opportunities from the corporation
A
Part of the duty of loyalty, specifically, one may not take a business opportunity from the corporation for one’s own benefit unless the corporation is first given the chance to pursue the opportunity. However, if the corporation is given the opportunity and declines to do so, one is free to pursue the opportunity for her own personal benefit.
9
Q
Fiduciary duties to corporations/LLCs (2)
A
both the duty of care and the duty of loyalty
10
Q
short-form merger
A
a parent company owning at least 90 percent of the outstanding shares of each class of its subsidiary may merge the subsidiary into itself. This, unlike most mergers, does not require the approval of shareholders of either the parent or subsidiary. Only the board of directors of the parent company needs to approve the merger.
11
Q
What counts as Fundamental changes, requiring SH approval?
A
mergers, consolidations, dissolutions, sale of all assets, and amendment of the articles.
While the board of directors cannot decide on a fundamental change without the shareholders, it can pass a resolution depending that shareholders act in a particular way.
12
Q
Determining whether to bring derivative or direct suit
A
Look at whether the suit is on behalf of the corporation or if it involves the individual shareholder’s rights against the corporation (also look whether harm was to SHs or to the corp).
The derivative suit (an equitable action) does not have to be brought by all shareholders collectively; rather, it may be commenced by one individual shareholder on behalf of the corporation
13
Q
If stock is held jointly by more than one person, a proxy executed by any one of them…
A
…is valid unless one of the other co-owners provides timely written notice to the corporation that the proxy is invalid.
14
Q
to make a valid codicil it must
A
A valid codicil must meet all of the requirements/formalities for a valid will.
It can be attested (signed by two witnesses) or holographic (with material sections in testator’s own handwriting)
15
Q
A presumption of undue influence may arise…
A
in situations where there is a fiduciary relationship between the beneficiary and the testator; the testator is dependent on the beneficiary who is playing the dominant role; the testator reposed trust in the beneficiary; and the beneficiary was instrumental in preparing the will.
16
Q
can a will be attested by an interested witness?
A
yes, under the UPC
17
Q
what is a self- proving will?
A
Under the Uniform Probate Code a self- proving will is one that is signed and witnessed, or subsequently acknowledged, before an officer authorized to administer oaths.
18
Q
To have a valid contract to make a will that is extrinsic to the will itself, the testator must…
A
…have signed a writing establishing the existence and essential terms of the contract.
19
Q
Causes of action for direct suits:
A
i) compel payment of dividends
ii) enforce right to inspect records
iii) protect preemptive rights
iv) enforce right to vote
v) recover for breach of shareholders’ agreement, preincorporation agreement, or a contract w/a shareholder
20
Q
Three meanings of proxy
A
1) Grant of authority by a shareholder to another person to vote their stock
2) the instrument granting that authority
3) the agent to whom that authority is granted (also called the proxy holder)
21
Q
Requirements for a proxy
A
Must be in writing, executed by the shareholder, and typically valid for 11 months. It is typically revocable unless coupled with an interest, if it states otherwise, or if the SH takes actions indicating revocation (i.e. writing delivered to corp, showing up to SH meeting)
22
Q
3 rights shareholders typically have
A
1) Dividend rights (at board’s discretion)
2) Liquidation rights
3) Voting rights
23
Q
white knight
A
a more acceptable bidder which a corporation finds in the case of a tender offer or hostile takeover by a less acceptable bidder
24
Q
poison pill
A
creating classes of stock that increase in rights if someone acquires more than a specified percentage of shares, making acquisition more expensive to the bidder
25
Are shares of stock a general or specific bequest?
Could be either. A possessive pronoun generally indicated specific ("my fifty shares of stock X"), whereas otherwise if could be general ("fifty shares of stock X").
Turns on intent, but this is a way to determine. Implications for ademption.
26
HYPO: Tara leaves “my car to my niece Sarah.” When Tara wrote her will, she owned a 1967 Firebird. Tara subsequently gave the Firebird to Sarah and purchased a 1998 Honda minivan, which she still owned at the time of her death. What result?
Sarah would get both cars. There would be no ademption by satisfaction b/c that only applies to general bequests and this is specific; and there would be no ademption by satisfaction because there is no contemporaneous writing by T stating so.
27
pretermitted child
a child born to a testator after the testator executed a will. If a testator's after-born child is not provided for in the testator's will, and the testator provided for one or more of his then-living children, the pretermitted child may claim a share of the estate unless it appears from the will that the omission was intentional. The other children's shares will abate ratably to accommodate the afterborn child's share.
28
Under the UPC, when an intestate decedent is not survived by a spouse, the descendants take/divide the entire estate...
...per capita by generation.
29
Under the UPC's provisions on intestate succession, when the decedent is survived by both a spouse and one or more descendants who are not also the descendants of the surviving spouse...
...the surviving spouse's share is the first $150,000.00 plus one-half of the intestate estate. The remainder is distributed equally among the descendants.
30
requirements for the creation of a valid trust (6)
(1) settlor w/requisite capacity, expresses a present intent to create a trust;
(2) delivery of specific trust property;
(3) an ascertainable beneficiary;
(4) active duties imposed on the trustee;
(5) a proper trust purpose; and
(6) a trustee.
31
Totten trust
Also known as a "payable on death account," a Totten trust is a form of trust created where one party (the settlor or depositor) places money in a bank account or security with instructions that upon the settlor's death, the funds in the account will pass to a named beneficiary. Typically, it's an account in the name of the depositor, "in trust for" the beneficiary. Prior to the depositor's death, the trust account is completely revocable and the depositor has no fiduciary duty to the beneficiary.
32
spendthrift trust
A spendthrift trust is one that prevents the beneficiary from voluntarily transferring her interest in the trust and creditors from reaching that interest.
33
Merger (trusts)
Merger occurs when the sole trustee becomes the sole beneficiary. Thus, in order for a trust to be terminated due to merger, there must be only one beneficiary and one trustee, and they must be the same person.
34
Typical situations in which resulting trusts occur are where... (5)
(1) the trust has no beneficiaries (e.g., none were ever named, they have died, they cannot be located or identified, or they disclaim their trust interests); (2) no provision has been made for a portion of the trust property; (3) a trust designated for a specific purpose is invalid, insufficient, or excessive; (4) the trust purpose was never described or is unclear; or (5) carrying out the material purposes of the trust has become impractical or illegal.
35
constructive trust
A constructive trust is an equitable device employed by courts, despite the absence of any intention of the parties to create a trust, whereby a trust is erected in favor of one person to redress wrongdoing or prevent the unjust enrichment on another. The purpose of a constructive trust is to require the holder of property to divest himself of it and transfer it to the person entitled to that asset.
36
"gift over" provision
A "gift over" provision provides that in the event that the settlor's stated charitable purpose cannot be accomplished, the trust will terminate or revert as provided. In contrast, the cy pres doctrine applies in cases where it becomes impossible or illegal to carry out the settlor's specific charitable purpose, such as where a designated charitable beneficiary is no longer in existence. The cy pres doctrine applies only when there is no "gift over" provision and no substitute charity named
37
Elements required to create a valid charitable trust: (4)
(1) it has a charitable purpose,
(2) the beneficiaries are indefinite,
(3) there is perpetual existence, and
(4) the cy pres doctrine can be applied as needed (when there is a general charitable intent)
38
choice of law for movable property
traditionally the situs at the time of transaction, but security interests in movable etc governed by UCC default rule is that of a state bearing an "appropriate relation" to the transaction.
39
choice of law for intangibles
law of situs where the instrument representing it, or otherwise the place of transfer, or contracts choice of law.
40
choice of law for real property
also for liens and mortgages (but not the note), governed by law of the situs
41
choice of law substance/procedure
Procedure is governed by the law of the forum, whereas substance is governed by the forum's choice of law rules. Whether something is substantive/procedural is determined according to the forum's law.
42
renvoi
idea that all the law of the state whose law applies should be applied, including choice of law. The 2nd Rest and most states of rejected this b/c of its potential circularity.
43
most important considerations for forum non conveniens (2)
1) P's choice of forum should not be disturbed except for weighty reasons;
2) the action should not be dismissed unless a suitable alternative forum is available to P.
Other considerations: access to evidence, premiuses, witnesses, enforceability of judgement, administrative issues, etc
44
basic requirements for a security agreement (4)
The security agreement must be:
(1) in writing;
(2) contain a "granting" clause (stating it is creating a security interest);
(3) contain a description that "reasonably described" the collateral (not supergeneric); and
(4) be authenticated by the debtor.
45
requirements in order for a security interest to attach (3)
(1) properly created/authenticated security agreement
(2) secured party must give value, and
(3) debtor must have rights to the collateral
These can occur in any order, and attachment happens once all 3 have taken place.
46
Can security agreements validly cover after-acquired consumer goods?
yes, but the security agreement can only attach if the debtor acquires rights in the goods within 10 days of the secured party giving value.
47
Under UCC Article 9, which law governs perfection and the effect of perfection?
The law of the jurisdiction where the debtor is located.
The law of the jurisdiction where the collateral is located governs only when the dispute involves a possessory security interest (in real property, or an interest in fixtures/timber).
48
Perfection of an interest, 4 ways
(1) filing,
(2) taking possession of the collateral,
(3) taking control of the collateral (i.e. bank account), or
(4) automatically (i.e. PMSI in consumer goods, identifiable cash proceeds)
49
how long does perfection last for?
perfection is automatic as soon as the security interest attaches, and remains effective permanently.
50
timeline for automatic perfection
Most of the time, when perfection is automatic and temporary, is lasts for a period of 20 days after attachment. However, when a PMSI is involved and the collateral is consumer goods, perfection is automatic and permanent as soon as the security interest attaches
51
PMSI grace period
Where a financing statement is filed within 20 days after the debtor receives delivery of the collateral, perfection "relates back" to the date the security interest attached upon the debtor's receipt of the collateral, which is good against claims arising in the meantime from (only) intervening buyers, lessees, or lien creditors.
Fixtures: super priority if perfected before or within 20 days of when it became a fixture.
Exception: no grace period for PMSI in inventory (must perfect upon receipt), plus must inform debtor of PMSI.
52
"first in time, first in right."
The most basic rule of priorities.
Assuming parties are on equal footing (i.e., both hold the same type of interest in the property) and both have perfected security interests, the first to perfect takes priority.
53
"second in time, first in right" priority
A perfected PMSI will prevail over a conflicting security interest, if the PMSI is perfected when the debtor receives possession of the collateral or within 20 days thereafter. (Note, extra steps are required where the collateral is inventory)
54
PMSI priority rule for inventory
When collatera is inventory, the PMSI holder can perfect his interest and prevail over the non-PMSI holder (even one who has perfected his interest) if the PMSI holder perfects his interest before the debtor receives possession of the collateral, and sends an authenticated notification to the other creditor stating that he expects to take a PMSI in the debtor's collateral.
55
cash proceeds of the collection or distribution of the collateral are to be distributed in the following order: (4)
1) reasonable expenses/fees of collection and enforcement;
2) satisfaction of indebtedness to secured party;
3) satisfaction of obligations secured by any subordinate security interestd or other subordinate lien on the collateral, IF they sent the secured party an authenticated demand before disposal;
4) and the remainder to the debtor.
5) If debts are not covered, secured parties can obtain a deficiency judgment
56
Perfection of security interest in a deposit account
deposit accounts may only be perfected by control. A secured party has control of a deposit account if the secured party is the bank with which the deposit account is maintained (can be like automatic perfection)
57
between perfected interests, which prevails?
Frist to file OR perfect.
| The security with the earliest time of filing or perfection, which has continued without interruption, will prevail
58
among unperfected interests, which prevails?
the first to attach
59
perfecting a security interest in money as collateral requires
possession (perfection by filing does not work)
60
perfection by possession only applies to:
i) negotiable documents
ii) goods
iii) instruments
iv) money
v) tangible chattel paper
61
a filed financing statement is effective for:
five years from date of filing.
A continuation statement must be filed within six months before the five-year period expires, extends the original FS for another five-year term from prior date of expiration.
FS will lapse if it expires without a continuation statement being filed, and SI becomes unperfected.
62
when is a secured party not entitled to deficiency payment
when they underlying transaction is:
1) a sale of accounts,
2) chattel paper,
3) payment intangibles, or
4) promissory note
63
What is Attachment?
Attachment is the process by which the security interest is created. A security interest is created by a contract between the debtor and the secured party
64
what is Perfection?
Perfection establishes a secured party’s rights in the collateral against third parties.
In order for a security interest to be perfected, requires: attachment + perfection.
65
is marital fault/misconduct considered in alimony awards?
It may be in some jurisdictions, but the UMDA requires that alimony be determined "without regard to marital misconduct," and awarded only where a party actually needs it.
66
Jurisdiction under UCCJEA
According to the Uniform Child Custody Jurisdiction and Enforcement Act, a state may take jurisdiction of a child welfare case if the child's home state declines jurisdiction or there is no "home state." The child and at least one parent must also have a significant connection to the state, and there must be significant evidence in the state.
67
formation of an LP or LLP
Both must comply w/statutory requirement
LP:
1) certificate of LP signed by all named general partners, filed w/secretary of state’s office
2) name of the LP must say “limited partnership” or an abbreviation (L.P. or LP)
LLP
1) Formed by filing w/secretary of state’s office certificate of registration signed by at least one person (usually must pay a filing fee)
2) name of the LLP must say “limited liability partnership” or an abbreviation (R.L.L.P., L.L.P., LP, etc.)
68
An act of a partner that is not apparently for carrying on in the ordinary course of business of the partnership...
... does not bind the partnership unless authorized by the
| other partners.
69
Resolving disputes between General Partners:
Acts within ordinary course of business: majority vote
| Acts outside ordinary course of business: unanimous consent
70
Duties of Limited Partners
Duties of good faith and fair dealing (less demanding than duties of care and loyalty)
71
Liability of limited partners in an LP
Not personally liable (except the partner’s capital contribution) for debts of the LP, even if the limited partner participated in the management
72
Dissociation of a partner
1) wrongfully dissociates of a partner from a definite term p'ship: automatic dissolution in 90 days unless
majority of partners vote to continue
2) sole general partner in an LP dissociates: automatic dissolution in 90 days unless majority of limited partners vote to continue, and appoint a general partner
3) one of multiple general partners dissociates from an LP: no automatic dissolution unless majority of all partners (general and limited) vote to dissolve
4) sole limited partner dissociates: automatic dissolution unless a limited partner is admitted within 90 days
73
Partnership’s liability on post-dissolution contracts:
liable if the transaction would have bound the partnership before dissolution and the other party did not have notice of the dissolution
74
Partnership’s assets are distributed in this order:
First: pay creditors (including partners who are creditors); partners are jointly and severally liable for
any outstanding debt (may seek contribution from
other partners)
Second: reimburse partners for their capital contributions
Third: pay the balance to partners in accordance with their share of profits
75
Requires capacity for principal and agent
Principal: Contractual capacity (capacity to enter
transactions, control one’s business affairs)
Agent: Minimum mental capacity (gets contractual capacity from principal)
76
agent's liability on a contracted entered into for principal
```
Fully Disclosed Principals: agent is not liable on contract
Partially Disclosed (or Undisclosed) Principal: agent is liable on contract
```
77
Apparent authority
Apparent authority arises from the principal’s representations to a third party, where the
principal’s behavior leads the third party to believe that the agent is acting with the principal’s authority. Thus, even if a partner lacks actual authority, a limited liability
partnership can be bound by the acts of a partner if the partner was apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership. Apparent authority does not exist if the third party had actual knowledge that the agent lacked authority.
78
Duties to partnerships
Duty of care, Duty of loyalty.
| These are owed both to the partnership and to the partners.
79
remedies for breach of fiduciary duties to a partnership
Can sue for harm to the partnership (by majority vote of partners), or can sue in a direct action, an accounting action (suit in equity), which determines result by each partner’s investment, the partnership’s profits or losses, and share of profits to which each partner is entitled.
80
Directors and Officers
Directors: sit on the board of directors (Board) and are responsible for governing the corp.
Officers: serve as agents of the corp. and are responsible for managing the day-to-day matters of the corp
81
Formation of a corp
=Incorporation
Occurs upon execution and filing of the articles of incorporation (Articles), requires the incorporator(s) prepare and sign the Articles and include:
§ name and address of each incorporator;
§ address of initial registered office and name of initial registered agent;
§ number of shares authorized to issue; and
§ name of the corp.
Proper filing requires an incorporator to file the Articles at the secretary of state’s office and pay the filing fee
82
Date of incorporation
the date of filing unless the Articles delay the date of
| effectiveness (up to 90 days from date of filing)
83
Corporation by estoppel
In a contract dispute between a third party and an unformed corp. believed to be properly formed, a court may:
• estop the third party from alleging defective incorporation if that would unjustly expose the corp.’s principals to liability
• estop the corp. from arguing it isn’t liable due to defective incorporation if it would unjustly deprive the third party of relief
Can’t use this doctrine as a defense to a tort claim
84
default rules for quorum and voting
* A majority of directors constitutes a quorum (unless otherwise provided in Articles or bylaws)
* Board action occurs upon the affirmative vote of a majority of the directors present at the meeting
The Board can act without calling a meeting if every director gives signed, written consent (unless otherwise provided in Articles or bylaws)
Shareholder meetings: quorum is majority of shares entitled to vote
85
default rules for notice for board meetings
Regular meetings: No notice needed
Special meetings: at least two days’ notice of the date, time, and place of the special meeting, but need not give notice of purpose of meeting except for meetings
at which the removal of a director is to be considered
86
Duty of care (corps)
Directors and officers must act:
§ in good faith;
§ with the care an ordinary prudent person would exercise in similar circumstances; and
§ in a manner reasonably believed to be in the best interest of the corp.
Standard of review: BJR
87
BJR
Business Judgment Rule: Rebuttable presumption that directors and officers acted:
o on an informed basis;
o in good faith; and
o honest belief that decision was in corp’s best interest
88
Notice of shareholder meetings
Written notice of each annual and special meetings required to be given at some point between 10 and 60 days before the meeting.
Must give notice of purpose for meetings to: amend articles (must include copy of amendment), merger/dissolution (include notice of plan)
89
Shareholders vote on (3)
1) elect and remove directors (with or without cause)
2) amend the bylaws, and
3) approve fundamental changes
90
Info rights of SHs
Unqualified right: to examine the Articles, bylaws, minutes of SH meetings, and a list of SHs of record
Qualified right: to inspect (and make copies of) accounting books and the records and minutes of director meetings (requires a good-faith demand made for a proper purpose and with specificity of that purpose and the items sought for inspection)
91
Appraisal rights
If a fundamental change was approved by SHs, dissenting SHs (who voted against the action) have right to sell their shares for the fair market value.
Merger: this right can be exercised by any SH of a corp. that is a party of the merger (except not SHs of a subsidiary corp. in a short form merger)
Share exchange: this right can be exercised only by SHs who own shares of the class/series that are to be acquired or exchanged
92
To compel payment of dividends, a SH must prove...
...the Director’s refusal amounted to fraud, bad faith, or an abuse of discretion.
Factors to determine bad faith:
• Intense hostility by controlling SHs against minority SHs
• Excluding minority SHs from employment by the corp.
• High salaries, bonuses, or corporate loans made to the controlling officers
• If majority SHs may be subject to high personal-income taxes if substantial dividends are paid
• Whether the controlling directors desire to buy the minority stock interests for as little as possible
93
Before bringing a derivative suit, SHs must...
make a written demand of the directors to enforce the rights of a corp. unless demand would be futile
94
Piercing the Corporate Veil
SHs are not personally liable for debts of the corp, but this is the exception.
Factors:
o Corp. is undercapitalized
o Corporate formalities have not been followed
o Commingling of corporate and personal funds
o Corp. is an alter ego of its SHs
95
amending bylaws
Generally shareholders and Board of directors may amend a corporation’s bylaws by vote, unless shareholders (in amending, repealing, or adopting a bylaw) expressly provide that board may not amend, repeal, or reinstate that bylaw.
Bylaws may include any provisions for regulation and management of corporation that are not inconsistent with law or articles of incorporation
96
Testamentary Intent, overcome by (3)
=At the time of execution, Testator intends that this particular document be his will.
Overcome by:
1) Undue Influence
2) Fraud: in execution (invalid) or inducement (toss part)
3) Mistake: in execution
97
Undue Influence, for testamentary intent, presumption
Challenger must prove the wrongdoer exerted such influence over Testator that:
1) Overcame Testator’s free will, and
2) Caused Testator to make a transfer he wouldn’t have otherwise made
Presumption of undue influence if:
1) wrongdoer was in a confidential relationship with Testator (i.e. nurse), and
2) suspicious circumstances surrounding the
preparation/execution of the will
98
Testamentary Capacity
Testator must be (1) at least 18 years old and (2) of sound mind when the will is executed.
Sound mind = ability to understand the nature of: his property, his disposition, and name and relationship to the people involved
99
Elements of a valid will (3)
1) Testamentary intent
2) Testamentary capcity
3) Statutory formalities followed (depends on type of will)
100
Types of wills (5)
(1) attested will: writing, signed by T's, witnessed (signed in front of notary or by two witnesses who saw him sign)
(2) holographic will: UPC requires material parts in T's handwriting, signed by T
(3) contract to make a will: valid under UPC, est by provision in will or express reference to K, signed by D
(4) joint/mutual will: 1 doc signed by both, revokable by either party in UPC (many states let either revoke)
(5) a codicil to a will: adds/modifies existing will, need same formalities as attested will, republishes the will to take of
codicil's execution
101
Methods of revoking a will
1) Physical act: destroying any part
2) Executing a subsequent will: express or implied revocation
3) Divorce: presumption that provisions in favor of the ex-spouse don't survive the divorce
102
reviving a will
A revoked will can be revived if it’s restated, re executed, or republished, or there is other clear evidence of intent to revive.
Republication = resign the original will and have two witnesses attest the will
A codicil made to a revoked will revives the revoked will as of the date of the codicil
103
Grounds for contesting an executed will (5)
```
o Lack of Testamentary Capacity
o Undue Influence
o Mistake
o Fraud
o Ambiguity
```
104
In Terrorem (No-Contest) Clause
Attempts to disqualify anyone contesting the will from taking under it
Most courts won’t apply this to disqualify a beneficiary if the challenge was based on reasonable cause
105
Personal Property List
Under the UPC, Testator can write a list disposing of personal property (not $) if the writing describes the beneficiaries and property with reasonable certainty
o The writing disposes of the property even if not properly attested
o The writing can be created after the will is executed
106
Spouse’s Elective Share
A surviving spouse can decline to take under the will or pursuant to the intestacy statute, and instead to take an elective-share.
Election must be made within the later of: 9 months after Decedent’s death, or 6 months after the probate of Decedent’s will.
Amount: up to 50% (depending on the length of the marriage) of the augmented estate
107
Simultaneous Death (wills)
A person who cannot be established by clear and convincing evidence to have survived the decedent by 120 hours is deemed to have predeceased the decedent.
• each is deemed to have failed to survive the other
• Also applies to intestate succession
108
Disclaimer of Property Interests (wills)
A beneficiary may refuse to take a devise by filing a disclaimer that:
• Is in writing and signed by the disclaiming party,
• Declares the disclaimer,
• Describes the interest or power being disclaimed, and
• Is delivered or filed
Disclaimer relates back to date of Decedent’s death.
The disclaiming party is treated as having predeceased Decedent.
109
Demonstrative Bequest/Devise
= A bequest of a certain sum to be paid out of a particular fund. If the fund is not in existence at Testator’s death or if there are insufficient funds,
the beneficiary is entitled to payment out of the general estate
110
A gift testator gave in his lifetime to a person is treated as a satisfaction of a devise only if:
1) The will provides for deduction of the gift,
2) Testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise, or
3) beneficiary acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise
111
Abatement: if the assets of Testator’s estate are insufficient to satisfy all the bequests or devises, the beneficiaries’ shares will abate (i.e., be reduced) in the following order:
* Property that would pass via intestacy
* Residuary bequests
* General bequests
* Demonstrative bequests
* Specific bequests (distributed first)
112
Anti-Lapse Statute
All states, provides that a devise is saved from lapsing (into residue) as a result of a predeceased benefiary if:
1) predeceasing beneficiary was closely related to Testator (typically a blood descendant), AND
2) predeceasing beneficiary was survived by descendants who also survived Testator, THEN:
3) Those descendants will take by anti-lapse unless the will clearly expresses a contrary intent
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Intestacy w/ a surviving spouse (ss)
1) Surviving descendants are the children of both SS and Decedent (i.e., no stepchildren)
2) No surviving descendants but Decedent’s parents survive
3) Surviving descendants of Decedent and also surviving step-children of Decedent:
4) Surviving descendants of Decedent who are the step-children of SS
1) SS takes entire intestate estate
2) SS takes first $300,000 plus three-quarters of intestate estate
3) SS takes first $225,000 plus half of the intestate estate. Remainder split equally by Decedent’s descendants.
4) SS takes first $150,000 plus half of intestate estate
114
UPC approach, if there is no SS or the SS is not entitled to a share in the estate, the descendants take by:
Per capita by representation at each generation
| not per stirpes
115
Types of trusts (4)
Express: (1) Private, (2) Charitable
Implied:
(3) Constructive: imposed to deprive wrongdoer from
retaining improperly obtained property
(4) Resulting: imposed irrespective of wrongdoing when circumstances require it (settlor holds equitable interest)
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Trust
split title between equitable (beneficary) and legal (trustee) holders
117
If a sole trustee of a trust becomes its sole beneficiary...
...interests merge and trust collapses
118
Requirements for a Valid Trust (6)
1) Settlor with requisite capacity who expresses a present intent to create a trust,
2) Delivery of specific trust property (can’t be mere expectation or unearned profits, some certainty)
3) At least one ascertainable beneficiary (some obj standard/reasonable basis to identify beneficiaries)
4) Proper trust purpose: any purpose not illegal, fraudulent or against public policy
5) Trustee, and
6) Active duties imposed on the trustee (not dry)
119
Types of (private) trusts (3)
1) Inter Vivos Trust: Trust property must be placed into the trust during settlor's lifetime
2) Testamentary Trust = Created by Settlor’s will, often w/ “Pour over” provision directing the transfer of D’s property into a trust
3) Totten Trust = Arrangement with bank that allows the depositor to open a bank account in his own name, as trustee for other parties, Beneficiary’s only right is to take what's left in the account when the D dies
120
Duration of trusts
All private, non-charitable trusts must comply with RAP
Majority of Jxns follow Wait-and-See Approach: whether a trust violates RAP depends upon what actually happens rather than what might happen
121
Duties of trustee
1) Trustee owes the beneficiaries a duty of loyalty and good faith, and is prohibited from:
● Self-dealing with trust (even if done in good faith)
● Obtaining a personal benefit other than the agreed-upon compensation
● Obtaining a personal benefit for a third party with respect to dealings involving the trust estate
● Being in an apparent conflict of interest with respect to the trust and third parties
2) Trustee has an affirmative duty to preserve and enhance trust property
o “Prudent Business Person” Rule: Trustee must use the degree of skill, care, and prudence exercised by a reasonable business person to use trust property in a
productive manner (higher standard if expertise)
o Amounts to duty of care, duty to invest prudently, duty to diversify investiments
122
Spendthrift Trust
Beneficiary’s interest is inalienable, beneficiary cannot voluntarily transfer property and a creditor can't reach it.
Exception—Cannot be used to defeat a claim of:
▪ Alimony or child support
▪ Creditors who furnish necessities to the beneficiary
▪ Government claims against the beneficiary
123
Discretionary Trust
Trustee pays as much income as he believes desirable.
| o Beneficiary’s creditors can get a lien on the trust but cannot get trust property until a distribution is made
124
Support trust
Distributions are based on the beneficiary’s needs
125
termination of trust by settlor: UPC and CL
CL: Presume trusts are irrevocable unless stated otherwise
UTC: Presume trusts are revocable unless stated otherwise
Settlor may terminate an irrevocable trust only with consent of all the beneficiaries
126
Termination of trust by Operation of Law
Where the trust property has been consumed, destroyed, or lost; the trust’s purposes have been fully accomplished; or accomplishment of the material purposes of the trust have become illegal, impossible, or impractical
127
Charitable trusts, reqs, features
Requirements
1) charitable purpose (beneficial to the community)
2) Beneficiaries must be indefinite
Features:
o No ascertainable beneficiaries (except charity orgs)
o RAP doesn’t apply
o Cy Pres: allows trust to continue even if trust purpose has been accomplished or become impracticable or impossible (csn use for another charitable purpose that approximates Settlor’s intentions, but need a general charitable intent)
128
changing the beneficiary of a life insurance policy
majority of state require doing this thru the policy contract, not just thru a will. Courts will sometimes find substantial compliance to be sufficient
129
Incorporation by reference (will)
Extrinisic doc is incorporated into will if:
1) Doc is in existence at time of execution of will
2) will manifested an intent to incorporate the doc
3) reasonable identification of the doc
The writing need not be executed with testamentary formalities. Some states recognize the right of a testator to dispose of tangible personal property by a signed memorandum, prepared before or after the will, even if not executed w/formalities required of wills.
130
a handwritten will is...
...a holographic will if not attested, but it can become an attested will if properly witnessed, signed, etc, even if handwritten
131
When a will comprises several pieces of paper...
...testator doesn’t have to sign each page, but all pages must have been present at the time of execution.
No requirement that the papers be stapled or otherwise physically connected
132
harmless error rule (wills)
under this rule, an alteration will be validated, even if it
does not comply with the required formalities, if the proponent proves by clear and convincing evidence that the testator intended the alteration to constitute part of his will (minority?)
133
dependent relative revocation
Where a testator revokes a will with the intention that a newly executed will shall replace it and the new will is invalid, some jurisdictions will apply this doctrine: the court will admit the revoked will to probate on the theory that testator did not intend the revocation to occur unless the new will’s provisions should take effect (e.g. crossed out a provision in order to give someone more, but the addition fails, leaving them w/less).
This does not produce result testator actually
intended, but designed to come as close as possible
134
a nonmarital child can only inherit as a child of Testator if...
...paternity is established by applicable state law.
135
Public policy re Trust provisions
Trust provisions that violate public policy are void. A trust provision that encourages a beneficiary to refrain from marrying is contrary to public policy, except when the beneficiary is the settlor’s spouse.
136
“no further inquiry” rule
Under this rule, a court will not inquire into the motivation for a trustees self-dealing transaction or its fairness. Good faith does not prevent it from being a breach.
137
Remedies for self dealing of a trustee
trust beneficiaries can either rescind the transaction or seek damages.
If beneficiary elects to rescind: trust property purchased by trustee is returned to the trust and the amount the trustee paid for the property is refunded by the trust.
If the beneficiary seeks damages: beneficiary will receive the difference in the FMV of the trust assets at the time of the self-dealing transaction and the amount paid by the trustee.
138
Prudent investor rule
A trustee is permitted to invest trust assets as a prudent investor would, using reasonable care, skill, and caution. The trustee must consider both the investment’s ability to produce income and the safety of the principal. Diversification is evidence of prudent investing.
A trustee is not liable for any decline in value due to a downturn in general economic conditions.
139
when does a security interest arise
A security interest arises when debtor uses property as
collateral to secure repayment of funds to a secured party. To arise requires:
1) a security agreement or possession of the collateral by the SP (usually w/an oral security agreement); and
2) attachment
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types of goods as collateral for Article 9 purposes
1) Consumer Goods = primarily for personal, family, or household purposes
2) Inventory = held for sale or lease, or furnished under
a contract for service (e.g., raw materials, work in progress, or business materials)
3) Farm Products = Goods, other than standing timber, used in a farming operation
4) Equipment = catchall for all other goods
141
ways a PMSI can arise (2)
if the obligation is incurred:
1) as all or part of the price of the collateral (e.g., a direct-financing seller); or
2) for value given to enable the debtor to acquire or use the collateral, if the value is in fact so used
142
what else, other than the collateral, does the holder of a security interest have a right to?
A security interest automatically extends to identifiable proceeds of the collateral
143
where to file a financing statement (to perfect)
Most collateral: at secretary of state’s office in the jurisdiction where Debtor is located (residence, etc), unless
If collateral is a fixture: file at the county clerk’s office in the county where the land to which the fixture is attached is located
144
valid financing statement requires
1) names of Debtor and the secured party
2) sufficient description of the collateral covered by the FS (super-generic is fine)
3) must be filed in correct place
4) must be authorized by debtor (Security agreement provides implied authorization)
5) no errors that are seriously misleading
145
Debtor’s Name Changes
FS will perfect an SI in collateral acquired within four months of Debtor’s name change, unless the SP files an amendment to the FS within that four month period
146
Debtor Moves to Another State
SP must file a new FS in Debtor’s new state within four months of Debtor’s move
147
Lien creditor vs secured party
Secured party has priority over a LC if SP:
1) perfects before the LC’s interest arises; or
2) files a financing statement and evidences a security agreement (by authentication, possession, or control) before the LC’s interest arises
3) PMSI takes priority over an intervening LC if PMSI is perfected within 20 days of Debtor receiving collateral
148
Cases where a security interest does NOT survive a sale (3)
1) Secured party authorized the sale free of the SI;
2) buyer in the ordinary course of business (BIOCOB);
3) consumer-to-consumer transaction, consumer goods (purchase for value, without knowledge, BEFORE FS is filed)
149
BIOCOB (buyer in the ordinary course of business), 4 reqs
A BIOCOB is a person who:
1) buys in good faith;
2) without knowledge that sale violates SP’s rights in the goods;
3) in the ordinary course of business; and
4) from a person in the business of selling those goods
150
Rights of Secured party upon default
1) Repossession: is possible w/o breach of the peace
| 2) action in Replevin to get sheriff to seize property
151
Notice req before sale of colleteral upon default: parties, timing, content
1) Must send to: Debtor, any filed SPs, and any other person for whom the SP has received notification of an interest in the collateral
2) Timing: must sent w/i reasonable time before the sale
(10 days is always sufficient)
3) Contents:
Non-consumer transaction
o description of Debtor and SP;
o description of the collateral;
o method of intended disposition, sale time/location
o a statement that Debtor is entitled to an accounting of all unpaid indebtedness; and
Consumer transaction must additionally include:
o description of any liability for a deficiency;
o contract info to information re redemption; and
o contact info for additional information
152
If a sale of collateral is a commercially unreasonable
if it is a non-commerical transaction, deficiency is reduce to 0 because presumption that the deficiency amount would have been the difference.
Can be rebutted by SP showing that the collateral was worth less than the amount left on the debt.
153
Duties of agents to P
1) Duty of care
2) duty of loyalty
3) duty to account for money/property recieved for P
4) Duty not to comingle assets
5) duty of candor: disclose facts P might want to know
154
Partial ratification
no such thing as partial ratification in an agency relationship. If P ratifies partly, the entire act is ratified.
155
liability of an undisclosed P when an agent enters into a K on their behalf
P will be liable if, subsequent to the transaction, the third party discovers the identity of the undisclosed principal.
156
When does Apparent Authority apply
no actual authority, but reasonable belief agent had authority based on presentations of PRINCIPAL.
Therefore generally not applicable when P is undisclosed.
Also, not applicable to tort liablity, only K liability.
157
categorization of different types of trust assets
Under the Uniform Principal and Income Act, rents and cash dividends received are allocated to trust income, and Sales proceeds and stock dividends are allocated to the principal of the trust.
158
for a prenup to be enforceable
majority follow UPAA (Uniform Premarital Agreement
Act), unenforceable if:
● The agreement wasn’t voluntary, or
● There was a lack of reasonable disclosure, and the agreement was unconscionable when executed
Procedural and substantive
159
proper Subject matter of premarital agreements
o Property division: permissible
o Waiver of alimony: permissible
o Children: invalid as against public policy to limit the obligation to support her minor children
o Sex: Majority says provisions re frequency of sex and child bearing are not enforceable (UPAA permits)
160
Marriage: formal and CL
Formal: license + Solemnization (state-authorized official)
Common Law Marriage:
● Capacity to marry,
● Consent: present intent to be married,
● Cohabitation,
● Consummation of the marriage, and
● Community: holding out as a married couple
Outlawed in most states, but generally recognized if performed validly in another state
161
Annulment
Judicial declaration that the marriage is invalid.
Void (automatically invalid): Bigamy, Incest
Voidable: marriages are valid until and unless the aggrieved party obtains an annulment
● Grounds: Non-age, Impotence, Temporary lack of capacity (e.g., drunkenness), Mental incompetence
162
Establishing paternity
Marital presumption, rebutted by clear and convincing evidence (i.e. DNA), also see UPA
Estoppel: father may be estopped from denying paternity in certain instances
Actions Brought by Putative Father: many states give an unmarried father 2 years to establish paternity when his alleged child has a presumed fathered
Actions by child: before age 18, while father is alive
163
Uniform Parentage Act (UPA)
presumptions of paternity in two circumstances, rebutted only by genetic testing:
1) married mother after child’s born and the man voluntarily asserted his paternity (such as by agreeing to be named as child’s father on birth certificate); or
2) for the first 2 years of child’s life, resided with the child openly held out the child as his own
164
Considerations for custody (4)
best interest of the child, determined by examination of all relevant factors including:
1) wishes of parents
2) the wishes of the child as to his custodian;
3) interrelationship of child with parents, siblings and any other person who may significantly affect the child’s best interest; and
4) mental and physical health of all individuals involved.
165
Jxn for Divorce Proceedings
SMJ: Established if one spouse is domiciled in the state when the action is filed
Personal Jurisdiction: needed over D to enter or enforce any decrees in personam (e.g., child support)
166
Fault-Based Grounds for divorce (6)
[AAIICC]
1) Abandonment/Desertion
2) Adultery
3) Impotence
4) Intoxication or excessive use of addictive drugs
5) Cruelty
6) felony Conviction (more than one year of incarceration)
167
No-Fault Divorce
Requires proof that:
1) Marriage is irretrievably broken (or irreconcilable differences between spouses) and no reasonable prospect of reconciliation, and
2) Parties have been separated for a definitive period of time
168
Property Division
Most states follow equitable distribution:
Step 1: Classify Property as Marital or Separate
● Marital Property: jointly owned and jointly acquired through the labor of the parties, or acquired during marriage
● Separate Property: owned before marriage, acquired after dissolution of marriage, excluded by premarital agreement, or acquired by gift or inheritance to one
spouse. For increased value of separate property note reason for the increase (passive appreciation vs labor of the parties)
● Mixed Character, Commingled, or Transmuted Property: traced to its source
● Classification of Particular Types of Assets
o Step 2: Value the Property
● Valuation is determined at the date the parties separate
o Step 3: Divide the Property
● Court determines what is an equitable distribution of all marital property based
on a number of factors, including:
▪ Length of marriage
▪ Standard of living during the marriage
▪ Contributions (monetary and non-monetary) of each party during the marriage
▪ Current financial circumstances of each party
169
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Classification of Assets for property division
▪ Marital Residence
▪ Pension/Retirement Accounts
▪ Stock Option
▪ Debt
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▪ Marital Residence: if marital earnings were used to pay off mortgage, can be both separate and marital property,reimburse marital estate for mortgage payments
▪ Pension/Retirement Accounts: whether or not accounts are vested they are subject to equitable
distribution but not premarital contributions or post-separation increases
▪ Stock Option: marital prop is granted to a spouse during marriage
▪ Debt: marital if incurred during marriage
170
Types of Alimony/Spousal Maintenance (3)
1) Periodic: certain amount paid at set intervals, usually monthly; obligation generally continues until the recipient dies, remarries, or court modifies order
2) Lump Sum: fixed amount (not a periodic obligation), cannot be modified
3) Rehabilitative: awarded for a limited period of time, until recipient can become self-supporting by working
171
Grounds for spousal support/alimony, factors (3)
Under UMDA, alimony only if the spouse seeking:
● Lacks sufficient property to provide for his/her reasonable means, and
● Either: is unable to support himself thru employment, OR unable to work due to taking care of a child with special needs
Factors:
1) Parties’ respective financial resources and needs,
2) Contributions each has made to the marital relationship (financially or by providing care at home),
3) Length of marriage
172
Modification and Termination of alimony
Most jurisdictions place a heavy burden on the party requesting modification, require *a substantial change in circumstances that rendered the original award
unreasonable and unfair*
Termination: generally terminates:
● After a specified period of time,
● On the death of either spouse, or
● Automatically on remarriage or cohabitation
173
Child support
Owed by both parents: custodial parent presumed to provide so order is entered against non-custodial
To calculate: most states use CS guidelines, mathematical formula based on income of parents.
If court deviates from guidelines, must give a written explanation
174
Modification of child support
Modification: only if party shows *a substantial and continuing change in circumstances making the prior order unreasonable*
Uniform Interstate Family Support Act (UIFSA):
Once a state issues a CS order consistent with the jurisdiction requirements of UIFSA, that court has continuing, exclusive jurisdiction over CS so long as:
● child or any party still resides in the issuing state; and
● All of the parties do not consent to change Jxn to a new state.
175
Parent Rights
1) Custody and Control
o Parent who is living, competent, and has not been found unfit is entitled to custody of the minor child and to direct her education and medical care (HERW)
o For a non-parent to seek custody or visitation rights,
significant deference must be given to a legal parent’s
2) Support Rights and Obligations
o obligation to support is terminated when child reaches majority (18 generally) or is legally emancipated
176
UCCJEA
=Uniform Child Custody Jurisdiction & Enforcement Act
Initial Jurisdiction: under UCCJEA, a state court can adjudicate over matters impacting a child if it has jurisdiction over the child (not parents).
State X has jurisdiction over child:
1) If State X is “home state” – child lived in State X since birth or at least the last 6 months?
2) If no home state, does State X have significant connections to the child?
3) If no home state and State X does not have significant connections, is State X nevertheless the most appropriate forum for the matter?
4) If no to all three, is State X the default jurisdiction?
Continuing and Exclusive Jurisdiction
● Once a state has made a valid child-custody determination under the UCCJEA, it has exclusive jurisdiction over custody until:
1) A court determines that neither child nor one parent have a significant connection with the state and substantial evidence is no longer available in the state regarding the child’s welfare; or
2) A child or both parents move out of the state
177
governing law for corps
MBCA= Model Business Corporation Act (“Model Act”)
178
If the corporation has cumulative voting and less than the entire board is to be removed, no director can be removed if:
...the votes against removal would be sufficient to elect him under cumulative voting rules. This is a way a shareholdler with less than a majority can still use those votes to get someone elected
179
duties of controlling SHs
Duty of good faith to refrain from exercising control so as to obtain a benefit not shared proportionately with minority SHs (i.e. when controlling SHs gets something that the others don't,)
e.g. issuing additional stock to a majority shareholder at less than FMV for purpose of diluting the interest of minority SHs; causing the board to institute a “no dividend” policy while increasing the salary of certain shareholder-employees, etc
180
distribution of lottery earnings upon divorce
goes by whether the winning ticket was purchased during the marriage
181
when does property received stop being marital property (majority/minority)
when the marriage effectively ends.
Majority: upon entering of final divorce decree
Minority: date of permanent separation or of divorce filing
182
Are contingent expectancies subject to equitable distribution?
yes, if they were acquired through spousal efforts during the marriage (i.e. future royalties will be apportioned)
183
some factors courts consider in determining equitable distribution of marital property (4)
▪ Length of marriage
▪ Standard of living during the marriage
▪ Contributions (monetary and non-monetary) of each party during the marriage
▪ Current financial circumstances of each party
