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Question 1

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.

Answer 1

A joint venture. A partnership (general or limited) would require the contemplation (intent) of carrying on an ongoing business relationship.

Question 2

A general partnership may convert to a registered limited liability partnership by…

Answer 2

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

Question 3

Under RUPA, the result of a partner’s bankruptcy, or other financial insolvency in a partnership at will is…

Answer 3

…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.

Question 4

Under RUPA, the result of a partner’s bankruptcy, or other financial insolvency in a partnership for a definite term or particular undertaking is…

Answer 4

…dissociation of the partner from the partnership/firm, and the partnership must be dissolved within 90 days of the dissociation.

Question 5

de jure vs de facto corporations

Answer 5

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.

Question 6

Liability of a promoter for contracts from before a corporation exists

Answer 6

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).

Question 7

factors considered when determining whether an opportunity is, in fact, a business opportunity (for the purpose of breach of fiduciary duty)

Answer 7

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.

Question 8

Describe the duty to refrain from taking business opportunities from the corporation

Answer 8

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.

Question 9

Fiduciary duties to corporations/LLCs (2)

Answer 9

both the duty of care and the duty of loyalty

Question 10

short-form merger

Answer 10

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.

Question 11

What counts as Fundamental changes, requiring SH approval?

Answer 11

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.

Question 12

Determining whether to bring derivative or direct suit

Answer 12

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

Question 13

If stock is held jointly by more than one person, a proxy executed by any one of them…

Answer 13

…is valid unless one of the other co-owners provides timely written notice to the corporation that the proxy is invalid.

Question 14

to make a valid codicil it must

Answer 14

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)

Question 15

A presumption of undue influence may arise…

Answer 15

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.

Question 16

can a will be attested by an interested witness?

Answer 16

yes, under the UPC

Question 17

what is a self- proving will?

Answer 17

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.

Question 18

To have a valid contract to make a will that is extrinsic to the will itself, the testator must…

Answer 18

…have signed a writing establishing the existence and essential terms of the contract.

Question 19

Causes of action for direct suits:

Answer 19

i) compel payment of dividendsii) enforce right to inspect recordsiii) protect preemptive rightsiv) enforce right to votev) recover for breach of shareholders’ agreement, preincorporation agreement, or a contract w/a shareholder

Question 20

Three meanings of proxy

Answer 20

1) Grant of authority by a shareholder to another person to vote their stock2) the instrument granting that authority3) the agent to whom that authority is granted (also called the proxy holder)

Question 21

Requirements for a proxy

Answer 21

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)

Question 22

3 rights shareholders typically have

Answer 22

1) Dividend rights (at board’s discretion)2) Liquidation rights3) Voting rights

Question 23

white knight

Answer 23

a more acceptable bidder which a corporation finds in the case of a tender offer or hostile takeover by a less acceptable bidder

Question 24

poison pill

Answer 24

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

Question 25

Are shares of stock a general or specific bequest?

Answer 25

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.

Question 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?

Answer 26

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.

Question 27

pretermitted child

Answer 27

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.

Question 28

Under the UPC, when an intestate decedent is not survived by a spouse, the descendants take/divide the entire estate…

Answer 28

…per capita by generation.

Question 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…

Answer 29

…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.

Question 30

requirements for the creation of a valid trust (6)

Answer 30

(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.

Question 31

Totten trust

Answer 31

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.

Question 32

spendthrift trust

Answer 32

A spendthrift trust is one that prevents the beneficiary from voluntarily transferring her interest in the trust and creditors from reaching that interest.

Question 33

Merger (trusts)

Answer 33

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.

Question 34

Typical situations in which resulting trusts occur are where… (5)

Answer 34

(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.

Question 35

constructive trust

Answer 35

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.

Question 36

“gift over” provision

Answer 36

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

Question 37

Elements required to create a valid charitable trust: (4)

Answer 37

(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)

Question 38

choice of law for movable property

Answer 38

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.

Question 39

choice of law for intangibles

Answer 39

law of situs where the instrument representing it, or otherwise the place of transfer, or contracts choice of law.

Question 40

choice of law for real property

Answer 40

also for liens and mortgages (but not the note), governed by law of the situs

Question 41

choice of law substance/procedure

Answer 41

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.

Question 42

renvoi

Answer 42

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.

Question 43

most important considerations for forum non conveniens (2)

Answer 43

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

Question 44

basic requirements for a security agreement (4)

Answer 44

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.

Question 45

requirements in order for a security interest to attach (3)

Answer 45

(1) properly created/authenticated security agreement(2) secured party must give value, and(3) debtor must have rights to the collateralThese can occur in any order, and attachment happens once all 3 have taken place.

Question 46

Can security agreements validly cover after-acquired consumer goods?

Answer 46

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.

Question 47

Under UCC Article 9, which law governs perfection and the effect of perfection?

Answer 47

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).

Question 48

Perfection of an interest, 4 ways

Answer 48

(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)

Question 49

how long does perfection last for?

Answer 49

perfection is automatic as soon as the security interest attaches, and remains effective permanently.

Question 50

timeline for automatic perfection

Answer 50

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

Question 51

PMSI grace period

Answer 51

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.

Question 52

“first in time, first in right.”

Answer 52

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.

Question 53

“second in time, first in right” priority

Answer 53

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)

Question 54

PMSI priority rule for inventory

Answer 54

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.

Question 55

cash proceeds of the collection or distribution of the collateral are to be distributed in the following order: (4)

Answer 55

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

Question 56

Perfection of security interest in a deposit account

Answer 56

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)

Question 57

between perfected interests, which prevails?

Answer 57

Frist to file OR perfect.The security with the earliest time of filing or perfection, which has continued without interruption, will prevail

Question 58

among unperfected interests, which prevails?

Answer 58

the first to attach

Question 59

perfecting a security interest in money as collateral requires

Answer 59

possession (perfection by filing does not work)

Question 60

perfection by possession only applies to:

Answer 60

i) negotiable documentsii) goodsiii) instrumentsiv) moneyv) tangible chattel paper

Question 61

a filed financing statement is effective for:

Answer 61

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.

Question 62

when is a secured party not entitled to deficiency payment

Answer 62

when they underlying transaction is:1) a sale of accounts,2) chattel paper, 3) payment intangibles, or4) promissory note

Question 63

What is Attachment?

Answer 63

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

Question 64

what is Perfection?

Answer 64

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.

Question 65

is marital fault/misconduct considered in alimony awards?

Answer 65

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.

Question 66

Jurisdiction under UCCJEA

Answer 66

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.

Question 67

formation of an LP or LLP

Answer 67

Both must comply w/statutory requirementLP:1) certificate of LP signed by all named general partners, filed w/secretary of state’s office2) name of the LP must say “limited partnership” or an abbreviation (L.P. or LP)LLP1) 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.)

Question 68

An act of a partner that is not apparently for carrying on in the ordinary course of business of the partnership…

Answer 68

… does not bind the partnership unless authorized by theother partners.

Question 69

Resolving disputes between General Partners:

Answer 69

Acts within ordinary course of business: majority voteActs outside ordinary course of business: unanimous consent

Question 70

Duties of Limited Partners

Answer 70

Duties of good faith and fair dealing (less demanding than duties of care and loyalty)

Question 71

Liability of limited partners in an LP

Answer 71

Not personally liable (except the partner’s capital contribution) for debts of the LP, even if the limited partner participated in the management

Question 72

Dissociation of a partner

Answer 72

1) wrongfully dissociates of a partner from a definite term p’ship: automatic dissolution in 90 days unlessmajority of partners vote to continue2) sole general partner in an LP dissociates: automatic dissolution in 90 days unless majority of limited partners vote to continue, and appoint a general partner3) one of multiple general partners dissociates from an LP: no automatic dissolution unless majority of all partners (general and limited) vote to dissolve4) sole limited partner dissociates: automatic dissolution unless a limited partner is admitted within 90 days

Question 73

Partnership’s liability on post-dissolution contracts:

Answer 73

liable if the transaction would have bound the partnership before dissolution and the other party did not have notice of the dissolution

Question 74

Partnership’s assets are distributed in this order:

Answer 74

First: pay creditors (including partners who are creditors); partners are jointly and severally liable forany outstanding debt (may seek contribution fromother partners)Second: reimburse partners for their capital contributionsThird: pay the balance to partners in accordance with their share of profits

Question 75

Requires capacity for principal and agent

Answer 75

Principal: Contractual capacity (capacity to entertransactions, control one’s business affairs)Agent: Minimum mental capacity (gets contractual capacity from principal)

Question 76

agent’s liability on a contracted entered into for principal

Answer 76

Fully Disclosed Principals: agent is not liable on contractPartially Disclosed (or Undisclosed) Principal: agent is liable on contract

Question 77

Apparent authority

Answer 77

Apparent authority arises from the principal’s representations to a third party, where theprincipal’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 liabilitypartnership 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.

Question 78

Duties to partnerships

Answer 78

Duty of care, Duty of loyalty.These are owed both to the partnership and to the partners.

Question 79

remedies for breach of fiduciary duties to a partnership

Answer 79

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.

Question 80

Directors and Officers

Answer 80

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

Question 81

Formation of a corp

Answer 81

=IncorporationOccurs 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

Question 82

Date of incorporation

Answer 82

the date of filing unless the Articles delay the date ofeffectiveness (up to 90 days from date of filing)

Question 83

Corporation by estoppel

Answer 83

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 reliefCan’t use this doctrine as a defense to a tort claim

Question 84

default rules for quorum and voting

Answer 84

• 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 meetingThe 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

Question 85

default rules for notice for board meetings

Answer 85

Regular meetings: No notice neededSpecial 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 meetingsat which the removal of a director is to be considered

Question 86

Duty of care (corps)

Answer 86

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

Question 87

BJR

Answer 87

Business Judgment Rule: Rebuttable presumption that directors and officers acted:o on an informed basis;o in good faith; ando honest belief that decision was in corp’s best interest

Question 88

Notice of shareholder meetings

Answer 88

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)

Question 89

Shareholders vote on (3)

Answer 89

1) elect and remove directors (with or without cause)2) amend the bylaws, and3) approve fundamental changes

Question 90

Info rights of SHs

Answer 90

Unqualified right: to examine the Articles, bylaws, minutes of SH meetings, and a list of SHs of recordQualified 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)

Question 91

Appraisal rights

Answer 91

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

Question 92

To compel payment of dividends, a SH must prove…

Answer 92

…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

Question 93

Before bringing a derivative suit, SHs must…

Answer 93

make a written demand of the directors to enforce the rights of a corp. unless demand would be futile

Question 94

Piercing the Corporate Veil

Answer 94

SHs are not personally liable for debts of the corp, but this is the exception.Factors:o Corp. is undercapitalizedo Corporate formalities have not been followedo Commingling of corporate and personal fundso Corp. is an alter ego of its SHs

Question 95

amending bylaws

Answer 95

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

Question 96

Testamentary Intent, overcome by (3)

Answer 96

=At the time of execution, Testator intends that this particular document be his will.Overcome by:1) Undue Influence2) Fraud: in execution (invalid) or inducement (toss part)3) Mistake: in execution

Question 97

Undue Influence, for testamentary intent, presumption

Answer 97

Challenger must prove the wrongdoer exerted such influence over Testator that:1) Overcame Testator’s free will, and2) Caused Testator to make a transfer he wouldn’t have otherwise madePresumption of undue influence if:1) wrongdoer was in a confidential relationship with Testator (i.e. nurse), and2) suspicious circumstances surrounding thepreparation/execution of the will

Question 98

Testamentary Capacity

Answer 98

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

Question 99

Elements of a valid will (3)

Answer 99

1) Testamentary intent2) Testamentary capcity3) Statutory formalities followed (depends on type of will)

Question 100

Types of wills (5)

Answer 100

(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

Question 101

Methods of revoking a will

Answer 101

1) Physical act: destroying any part2) Executing a subsequent will: express or implied revocation3) Divorce: presumption that provisions in favor of the ex-spouse don’t survive the divorce

Question 102

reviving a will

Answer 102

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 willA codicil made to a revoked will revives the revoked will as of the date of the codicil

Question 103

Grounds for contesting an executed will (5)

Answer 103

o Lack of Testamentary Capacityo Undue Influenceo Mistakeo Fraudo Ambiguity

Question 104

In Terrorem (No-Contest) Clause

Answer 104

Attempts to disqualify anyone contesting the will from taking under itMost courts won’t apply this to disqualify a beneficiary if the challenge was based on reasonable cause

Question 105

Personal Property List

Answer 105

Under the UPC, Testator can write a list disposing of personal property (not $) if the writing describes the beneficiaries and property with reasonable certaintyo The writing disposes of the property even if not properly attestedo The writing can be created after the will is executed

Question 106

Spouse’s Elective Share

Answer 106

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

Question 107

Simultaneous Death (wills)

Answer 107

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

Question 108

Disclaimer of Property Interests (wills)

Answer 108

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 filedDisclaimer relates back to date of Decedent’s death.The disclaiming party is treated as having predeceased Decedent.

Question 109

Demonstrative Bequest/Devise

Answer 109

= 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

Question 110

A gift testator gave in his lifetime to a person is treated as a satisfaction of a devise only if:

Answer 110

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, or3) 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

Question 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:

Answer 111

• Property that would pass via intestacy• Residuary bequests• General bequests• Demonstrative bequests• Specific bequests (distributed first)

Question 112

Anti-Lapse Statute

Answer 112

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), AND2) 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

Question 113

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 survive3) Surviving descendants of Decedent and also surviving step-children of Decedent:4) Surviving descendants of Decedent who are the step-children of SS

Answer 113

1) SS takes entire intestate estate2) SS takes first $300,000 plus three-quarters of intestate estate3) 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

Question 114

UPC approach, if there is no SS or the SS is not entitled to a share in the estate, the descendants take by:

Answer 114

Per capita by representation at each generation(not per stirpes)

Question 115

Types of trusts (4)

Answer 115

Express: (1) Private, (2) CharitableImplied:(3) Constructive: imposed to deprive wrongdoer fromretaining improperly obtained property(4) Resulting: imposed irrespective of wrongdoing when circumstances require it (settlor holds equitable interest)

Question 116

Trust

Answer 116

split title between equitable (beneficary) and legal (trustee) holders

Question 117

If a sole trustee of a trust becomes its sole beneficiary…

Answer 117

…interests merge and trust collapses

Question 118

Requirements for a Valid Trust (6)

Answer 118

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 policy5) Trustee, and6) Active duties imposed on the trustee (not dry)

Question 119

Types of (private) trusts (3)

Answer 119

1) Inter Vivos Trust: Trust property must be placed into the trust during settlor’s lifetime2) Testamentary Trust = Created by Settlor’s will, often w/ “Pour over” provision directing the transfer of D’s property into a trust3) 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

Question 120

Duration of trusts

Answer 120

All private, non-charitable trusts must comply with RAPMajority of Jxns follow Wait-and-See Approach: whether a trust violates RAP depends upon what actually happens rather than what might happen

Question 121

Duties of trustee

Answer 121

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 parties2) Trustee has an affirmative duty to preserve and enhance trust propertyo “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 aproductive manner (higher standard if expertise)o Amounts to duty of care, duty to invest prudently, duty to diversify investiments

Question 122

Spendthrift Trust

Answer 122

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

Question 123

Discretionary Trust

Answer 123

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

Question 124

Support trust

Answer 124

Distributions are based on the beneficiary’s needs

Question 125

termination of trust by settlor: UPC and CL

Answer 125

CL: Presume trusts are irrevocable unless stated otherwiseUTC: Presume trusts are revocable unless stated otherwiseSettlor may terminate an irrevocable trust only with consent of all the beneficiaries

Question 126

Termination of trust by Operation of Law

Answer 126

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

Question 127

Charitable trusts, reqs, features

Answer 127

Requirements1) charitable purpose (beneficial to the community)2) Beneficiaries must be indefiniteFeatures:o No ascertainable beneficiaries (except charity orgs)o RAP doesn’t applyo 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)

Question 128

changing the beneficiary of a life insurance policy

Answer 128

majority of state require doing this thru the policy contract, not just thru a will. Courts will sometimes find substantial compliance to be sufficient

Question 129

Incorporation by reference (will)

Answer 129

Extrinisic doc is incorporated into will if:1) Doc is in existence at time of execution of will2) will manifested an intent to incorporate the doc3) reasonable identification of the docThe 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.

Question 130

a handwritten will is…

Answer 130

…a holographic will if not attested, but it can become an attested will if properly witnessed, signed, etc, even if handwritten

Question 131

When a will comprises several pieces of paper…

Answer 131

…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

Question 132

harmless error rule (wills)

Answer 132

under this rule, an alteration will be validated, even if itdoes 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?)

Question 133

dependent relative revocation

Answer 133

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 actuallyintended, but designed to come as close as possible

Question 134

a nonmarital child can only inherit as a child of Testator if…

Answer 134

…paternity is established by applicable state law.

Question 135

Public policy re Trust provisions

Answer 135

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.

Question 136

“no further inquiry” rule

Answer 136

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.

Question 137

Remedies for self dealing of a trustee

Answer 137

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.

Question 138

Prudent investor rule

Answer 138

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.

Question 139

when does a security interest arise

Answer 139

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); and2) attachment

Question 140

types of goods as collateral for Article 9 purposes

Answer 140

1) Consumer Goods = primarily for personal, family, or household purposes2) Inventory = held for sale or lease, or furnished undera 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 operation4) Equipment = catchall for all other goods

Question 141

ways a PMSI can arise (2)

Answer 141

if the obligation is incurred:1) as all or part of the price of the collateral (e.g., a direct-financing seller); or2) for value given to enable the debtor to acquire or use the collateral, if the value is in fact so used

Question 142

what else, other than the collateral, does the holder of a security interest have a right to?

Answer 142

A security interest automatically extends to identifiable proceeds of the collateral

Question 143

where to file a financing statement (to perfect)

Answer 143

Most collateral: at secretary of state’s office in the jurisdiction where Debtor is located (residence, etc), unlessIf 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

Question 144

valid financing statement requires

Answer 144

1) names of Debtor and the secured party2) sufficient description of the collateral covered by the FS (super-generic is fine)3) must be filed in correct place4) must be authorized by debtor (Security agreement provides implied authorization)5) no errors that are seriously misleading

Question 145

Debtor’s Name Changes

Answer 145

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

Question 146

Debtor Moves to Another State

Answer 146

SP must file a new FS in Debtor’s new state within four months of Debtor’s move

Question 147

Lien creditor vs secured party

Answer 147

Secured party has priority over a LC if SP:1) perfects before the LC’s interest arises; or2) files a financing statement and evidences a security agreement (by authentication, possession, or control) before the LC’s interest arises3) PMSI takes priority over an intervening LC if PMSI is perfected within 20 days of Debtor receiving collateral

Question 148

Cases where a security interest does NOT survive a sale (3)

Answer 148

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)

Question 149

BIOCOB (buyer in the ordinary course of business), 4 reqs

Answer 149

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; and4) from a person in the business of selling those goods

Question 150

Rights of Secured party upon default

Answer 150

1) Repossession: is possible w/o breach of the peace2) action in Replevin to get sheriff to seize property

Question 151

Notice req before sale of colleteral upon default: parties, timing, content

Answer 151

1) Must send to: Debtor, any filed SPs, and any other person for whom the SP has received notification of an interest in the collateral2) Timing: must sent w/i reasonable time before the sale(10 days is always sufficient)3) Contents: Non-consumer transactiono description of Debtor and SP;o description of the collateral;o method of intended disposition, sale time/locationo a statement that Debtor is entitled to an accounting of all unpaid indebtedness; andConsumer transaction must additionally include:o description of any liability for a deficiency;o contract info to information re redemption; ando contact info for additional information

Question 152

If a sale of collateral is a commercially unreasonable

Answer 152

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.

Question 153

Duties of agents to P

Answer 153

1) Duty of care2) duty of loyalty3) duty to account for money/property recieved for P4) Duty not to comingle assets5) duty of candor: disclose facts P might want to know

Question 154

Partial ratification

Answer 154

no such thing as partial ratification in an agency relationship. If P ratifies partly, the entire act is ratified.

Question 155

liability of an undisclosed P when an agent enters into a K on their behalf

Answer 155

P will be liable if, subsequent to the transaction, the third party discovers the identity of the undisclosed principal.

Question 156

When does Apparent Authority apply

Answer 156

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.

Question 157

categorization of different types of trust assets

Answer 157

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.

Question 158

for a prenup to be enforceable

Answer 158

majority follow UPAA (Uniform Premarital AgreementAct), unenforceable if:● The agreement wasn’t voluntary, or● There was a lack of reasonable disclosure, and the agreement was unconscionable when executedProcedural and substantive

Question 159

proper Subject matter of premarital agreements

Answer 159

o Property division: permissibleo Waiver of alimony: permissibleo Children: invalid as against public policy to limit the obligation to support her minor childreno Sex: Majority says provisions re frequency of sex and child bearing are not enforceable (UPAA permits)

Question 160

Marriage: formal and CL

Answer 160

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 coupleOutlawed in most states, but generally recognized if performed validly in another state

Question 161

Annulment

Answer 161

Judicial declaration that the marriage is invalid.Void (automatically invalid): Bigamy, IncestVoidable: 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

Question 162

Establishing paternity

Answer 162

Marital presumption, rebutted by clear and convincing evidence (i.e. DNA), also see UPAEstoppel: father may be estopped from denying paternity in certain instancesActions Brought by Putative Father: many states give an unmarried father 2 years to establish paternity when his alleged child has a presumed fatheredActions by child: before age 18, while father is alive

Question 163

Uniform Parentage Act (UPA)

Answer 163

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); or2) for the first 2 years of child’s life, resided with the child openly held out the child as his own

Question 164

Considerations for custody (4)

Answer 164

best interest of the child, determined by examination of all relevant factors including:1) wishes of parents2) 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; and4) mental and physical health of all individuals involved.

Question 165

Jxn for Divorce Proceedings

Answer 165

SMJ: Established if one spouse is domiciled in the state when the action is filedPersonal Jurisdiction: needed over D to enter or enforce any decrees in personam (e.g., child support)

Question 166

Fault-Based Grounds for divorce (6)

Answer 166

[AAIICC]1) Abandonment/Desertion2) Adultery3) Impotence4) Intoxication or excessive use of addictive drugs5) Cruelty6) felony Conviction (more than one year of incarceration)

Question 167

No-Fault Divorce

Answer 167

Requires proof that:1) Marriage is irretrievably broken (or irreconcilable differences between spouses) and no reasonable prospect of reconciliation, and2) Parties have been separated for a definitive period of time

Question 168

Property Division

Answer 168

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 onespouse. 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 Assetso Step 2: Value the Property● Valuation is determined at the date the parties separateo Step 3: Divide the Property● Court determines what is an equitable distribution of all marital property basedon 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

Question 169

Classification of Assets for property division▪ Marital Residence▪ Pension/Retirement Accounts▪ Stock Option▪ Debt

Answer 169

▪ 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 equitabledistribution 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

Question 170

Types of Alimony/Spousal Maintenance (3)

Answer 170

1) Periodic: certain amount paid at set intervals, usually monthly; obligation generally continues until the recipient dies, remarries, or court modifies order2) Lump Sum: fixed amount (not a periodic obligation), cannot be modified3) Rehabilitative: awarded for a limited period of time, until recipient can become self-supporting by working

Question 171

Grounds for spousal support/alimony, factors (3)

Answer 171

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 needsFactors: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

Question 172

Modification and Termination of alimony

Answer 172

Most jurisdictions place a heavy burden on the party requesting modification, require a substantial change in circumstances that rendered the original awardunreasonable and unfairTermination: generally terminates:● After a specified period of time,● On the death of either spouse, or● Automatically on remarriage or cohabitation

Question 173

Child support

Answer 173

Owed by both parents: custodial parent presumed to provide so order is entered against non-custodialTo calculate: most states use CS guidelines, mathematical formula based on income of parents.If court deviates from guidelines, must give a written explanation

Question 174

Modification of child support

Answer 174

Modification: only if party shows a substantial and continuing change in circumstances making the prior order unreasonableUniform 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.

Question 175

Parent Rights

Answer 175

1) Custody and Controlo 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 Obligationso obligation to support is terminated when child reaches majority (18 generally) or is legally emancipated

Question 176

UCCJEA

Answer 176

=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; or2) A child or both parents move out of the state

Question 177

governing law for corps

Answer 177

MBCA= Model Business Corporation Act (“Model Act”)

Question 178

If the corporation has cumulative voting and less than the entire board is to be removed, no director can be removed if:

Answer 178

…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

Question 179

duties of controlling SHs

Answer 179

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

Question 180

distribution of lottery earnings upon divorce

Answer 180

goes by whether the winning ticket was purchased during the marriage

Question 181

when does property received stop being marital property (majority/minority)

Answer 181

when the marriage effectively ends.Majority: upon entering of final divorce decreeMinority: date of permanent separation or of divorce filing

Question 182

Are contingent expectancies subject to equitable distribution?

Answer 182

yes, if they were acquired through spousal efforts during the marriage (i.e. future royalties will be apportioned)

Question 183

some factors courts consider in determining equitable distribution of marital property (4)

Answer 183

▪ 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

Question 184

Kap method

Answer 184

1. Read (interrogatory, facts, interogatory)2. Organize and Analyze (parties, transactions, theories of law; more precise analysis)3. Write and Weave in facts (IRAC, “The issue is… Here, … Therefore…,” answer the Q)

Question 185

Broad topics for Real Property (5)

Answer 185

1) Ownership (estates, cotenancy, LL/T)2) Property Rights (covenants, easements, profits, license, fixtures, zoning/variance)3) Real Estate Contracts (K law, marketability, equitable conversion, implied warranties, merger)4) Mortgages/Security devices (type/deed/note/installment/PMM, title/lien theory, transfers, foreclosure)5) Titles (AP, deeds, recording acts, etc)

Question 186

checkpoints for estates (3)

Answer 186

1) Does the deed language create a fee simple, defeasible fee, or life estate?2) Is a future interest retained or created? (reversion, remainders, executory interests, or reverter)3) Are there any rules or conduct that affect the estate or future interest? (class gifts, survivorship, waste, or cy pres, RAP, alienability, descendibility, or devisability)

Question 187

checkpoints for cotenancy (2)

Answer 187

1) Was a tenancy in common or joint tenancy created? (time, title, interest, possession with express right of survivorship?)2) Was the joint tenancy severed (sale, partition, or mortgage)? If yes, what resulting rights?

Question 188

checkpoints for Landlord-tenant (5)

Answer 188

1. What type of lease do LL and T have? What is the required notice?2. Any express agreements creating additional rights/duties?3. assignment or sublease? Who is liable for rent?4. Was a duty breached (express, implied, CL)?5. What remedies? (eviction, reduce rent, surrender, relet, sue)

Question 189

checkpoints for Restrictive covenant (3)

Answer 189

1. Does the burden and/or benefit run with the land?2. damages or injunction being sought?3. Can the covenant be enforced as an equitable servitude or implied reciprocalservitude?

Question 190

checkpoints for Easements

Answer 190

1. Is the non-possessory property interest an easement in gross or appurtenant?2. created by writing, implication, prescription, or estoppel?3. Was the scope exceeded? (surcharged)4. Was there a transfer or termination?

Question 191

Broad topics for civ pro (7)

Answer 191

1) Jurisdiction and Venue2) Law applied by fed courts3) Pretrial Procedures4) Jury Trials5) Motions6) Verdicts and Judgments7) Appealability and Review*think in terms of a timeline

Question 192

Jurisidiction and Venue issues (4)

Answer 192

1) Federal SMJ: diversity or FQ2) Personal Jurisdiction: presence, waiver, contacts/fairness3) Service and notice: proper, waiver4) Venue, Forum nc, transfer

Question 193

Law applied by fed courts issues

Answer 193

1) State law: Erie2) Fed CL: maritime, foreign relations, commercial/property rights/liabilities of fed govt

Question 194

Pretrial Procedures issues (7)

Answer 194

1) PI/TRO: status quo, irreparable harm, notice2) Pleadings, amended, supplemental: Twiqbal, right/permission3) Rule 11: signed, sanctions, safe harbor4) Joinder of parties/claims: compulsary, permissuve, crossclaim, impleader, class actions (CANT)5) Discovery: disclosure, sanctions, timing, privilege6) Adjudication w/o trial: dismissal, default7) Pretrial conference, scheduling

Question 195

Jury Trials issues (3)

Answer 195

1) Right: legal remedy, damages2) Selection: voir dire, strikes3) Jury instructions, objections

Question 196

Motions issues (3)

Answer 196

1) Pretrial: motion to dismiss, Summary Judgment, etc2) JMOL, renewed JMOL3) Post trial motions: relief from judgment, new trial, timing

Question 197

Verdicts and Judgments (4)

Answer 197

1) Defaults, dismissals2) Jury verdicts: unanimous, general/special3) Judicial findings4) Claim/Issue preclusion

Question 198

Appealability and Review

Answer 198

1) Interlocutory review2) Final judgment rule: on the merits3) Scope of review: objections, standard

Question 199

Crim law checklist (vi)

Answer 199

i) Crimes against the personii) Crimes against propertyiii) Crimes against habitationiv) Accomplice liablityv) Inchoate offensesvi) Defenses

Question 200

Crimes against the person (vi)

Answer 200

i) Murder: unlawful killing, malice aforethought (intent, injury, reckless, felony)ii) Voluntary manslaughter: adequate provocation, no time to cool off.iii) Involuntary manslaughter: criminal negligenceOR during misdemeanor/non BARRK felonyiv) Battery: bodily injury or offensive touching, gen intentv) Assault: attempted battery (spec intent) or threat (gen intent); merger if battery occurs.vi) Other Common law Crimes Against the Person: False Imprisonment, Kidnapping, Rape

Question 201

Crimes against property (viii)

Answer 201

i) Larceny: a wrongful taking and carrying away of the personal property of another by trespass (without consent), with intent (at time of taking) to deprive permanently.ii) Embezzlement: Requires fraudulent conversion (i.e. inconsistent w/arrangement by which D has possession) of personal property of another; (5) by a person in lawfulpossession of that property; (6) with intent to defraud.iii) Robbery (larceny + assault) requires: wrongful taking of personal property of another, from the other’s person or presence, by force or threat of immediate physical harm, w/intent to permanently deprive him of it.iv) False Pretenses: Obtaining title by intentional false statement of fact, w/intent to defraud.v) Larceny by trick: Obtaining possession (not title) through fraud, with intent to steal.vi) Extortion: (blackmail) Obtaining property of another by threat of future harm to the victim or property.vii) Receiving Stolen Property: known to be stolen, with intent to permanently deprive owner.viii) Forgery: Fraudulently making a false writing, with apparent legal significance, with intent to make wrongful use of doc.

Question 202

Crimes against habitation

Answer 202

1) Burglary: a breaking an entry of the dwelling of another at night with the intent to commit a felony inside.2) Arson: malicious burning of the dwelling of another

Question 203

Accomplice liability

Answer 203

with intent, aids, counsels, or encourages

Question 204

Inchoate offenses (3)

Answer 204

1) Solicitation: Enticing, advising, inciting, inducing, urging or otherwise encouraging commit a target offense.2) Conspiracy: Two or more persons, intent to enter agreement, for unlawful purpose, act in furtherance3) Attempt: Specific intent to commit the crime, an overt act in furtherance.

Question 205

Defenses (7)

Answer 205

A) Insanity – 4 tests for Acquittal: M’Naghten Rule; Irresistible Impulse Test; Durham Test; MPCB. Intoxication (voluntary or involuntary)C. Infancy (under 7= no liability; under 14 = rebuttable presumption against liability)D. Duress (not a defense for homicide)E. Self-Defense (non-deadly v. deadly, retreat req)F. Defense of a Dwelling (only non-deadly force)G. Necessity: justifies commission

Question 206

Crim law essay tips/approaches

Answer 206

1. Be overinclusive in identifying crimes; classify as crimes against persons, property, or dwellings checklist2) Note language suggesting intent/mental state like: unknowingly, without knowledge, and unbeknownst.3) Remember to consider defenses, more than one.4) Multiple bad actors: think conspiracy, solicitation,accomplice liability.v) transferred intent will likely result in the ability to charge D with multiple crimes (ex: battery and attempted battery (assault)).

Question 207

Contacts essay checkpoints (6)

Answer 207

1. Formation2. Defenses to enforceability (reasons not to enforce)3. Contract content/meaning (dispute, writing, terms, default rules)4. Performance/Breach/Discharge (substantial/part performance, unforeseen events, anticipatory repudiation, warranties)5. Remedies (foreseeability, avoidability, detrimental reliance, law/equity, unjust enrichment)6. Third Party Rights (intended, incidental)

Question 208

Formation of contracts issues (6)

Answer 208

Mutual assent1. Offer inviting acceptance?2. issues w/offer? (lapse, revocation, option contract, Firm Offer, rejection/counteroffer, preexisting duty)3. Acceptance? (communication, performance, correspondence)4. Acceptance issues? (mailbox rule, silence, battle of the forms)5. Consideration, or some substitute?6. Was promise terminated in some way?

Question 209

Defenses to enforceability: reasons not to enforce (7)

Answer 209

A. Statute of Frauds (MYLEGS)B. Mistake (unilateral? knowledge?C. IllegalityD. Incapacity (mental, physical, substance)E. InfancyF. Unconscionability (subst/proc)G. Duress/Fraud

Question 210

Contacts essay tips/approach (4)

Answer 210

1) CL or UCC 2 sales: predominant purpose2) Writings vs spoken words, see both (note: SoF = defense, not formation issue!)3) Numbers: dates, money, ages4) Remedies: think broadly!

Question 211

three criteria that should be considered/discussed in evaluating whether a regulation is a taking:

Answer 211

(1) economic impact of the regulation on the claimant; (2) extent to which the regulation has interfered with investment-backed expectations; and(3) character of the governmental action.Private use is fine, as long as for public purpose

Question 212

Approach for exclusionary rule

Answer 212

A. Is Someone trying to exclude a particular piece of evidence?B. Was the evidence illegally obtained?C. Was there an independent source or was it inevitably going to be discovered?

Question 213

Approach for 4th Amd Search and Seizure

Answer 213

Step by step approach: start w/explanation of what the 4th Amend prohibits, then explain when it applies, and then move to the spec exception/requirement at issue.Issues:A. Does D have a 4th Amendment right?B. Did D have a reasonable expectation of privacy?C. Was there government action?D. If yes, did the government agent have a warrant?E. Was the warrant valid and properly executed?F. If the police did not have a warrant, did they make a valid warrantless search?

Question 214

Considerations/possibilities for a valid warrantless search? (five steps)

Answer 214

1. search incident to a lawful arrest (SITLA)?2. Was the search of an automobile? if yes, need probable cause?3. Was the search of a plain view area?4. Was consent given voluntarily and intelligently by someone with authority?5. Did a stop and frisk occur? If so, need either reasonable articulable suspicion, or done while in hot pursuit or related to evanescent evidence?

Question 215

Fifth Amd rights (3)

Answer 215

1) Privilege against self-incrimination2) Right to counsel: NOT offense specific, must STOP interrogation of ANY issue3) Double Jeopardy

Question 216

Privilege against self-incrimination approach (4 steps)

Answer 216

*Miranda: establish custody + interrogation (step by step)1. Was the defendant in custody?2. Was there an interrogation?3. Were Miranda warnings given?4. Did the defendant knowingly, voluntarily, and intelligently waive their rights?

Question 217

Double Jeopardy

Answer 217

Once jeopardy attaches, the D may not be retried for the same offense.Test:1) Same Offense: not same if crime requires proof of an additional element. Lesser included offenses usually = same offense. If separate Sovereigns ≠ same offense.2. Exceptions permitting re-trial: (1) Hung jury; (2) Mistrial for manifest necessity; (3) Re-trial after successful appeal; (4) Breach of an agreed upon plea bargain

Question 218

Sixth Amd right to counsel approach

Answer 218

A. Did D have a right to Counsel? Applies during a post charge line-up or other critical stageB. Was D’s right to a speedy trial violated?C. Was D’s right to a jury trial violated?D. Was D’ s right to confront witnesses violated?

Question 219

8th Amend approach

Answer 219

1) Was D inflicted with cruel and unusual punishment (proportionate to the offense?2) The Death Penalty: was D given a chance to present mitigating facts and circumstances?Mitigating/Aggravating facts: State may not by statute limit the mitigating factors; all relevant mitigatingevidence must be admissible or the statute is unconstitutional. Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.

Question 220

Crim proc approach for 14th Amd Due Process

Answer 220

1. Did the prosecution prove each element beyond a reasonable doubt?2. Was there an identification which was unnecessarily suggestive?

Question 221

Commonly connected MEE crim proc questions

Answer 221

● Search, Warrant, Miranda● Terry Stop, Miranda, Exclusionary Rule● Custody, Interrogation, Miranda, Line-up

Question 222

to be valid, Waiver of Miranda rights must be…

Answer 222

knowing, intelligent, and voluntary

Question 223

Evidence checklist

Answer 223

1) Presentation of Evidence2) Relevancy and Exclusion3) Privileges and other policy exclusions4) Writings, recordings, photos (original/exact copy, otherwise need authentication, BER issues)5) Hearsay admissibility: def, exceptions (availability), exemptions (nonhearsay)

Question 224

Presentation of Evidence issues

Answer 224

A. Introduction of evidence: personal knowledge, refreshing memory. objections and offers of proof (timely?), lay opinions, competency (disqualifying facts” age, insanity, etc), judicial noticeB. Presumptions: burden shifting, inferences, rebuttable presumptionsC. Impeachment on cross (prior inconsistent statements; biased/interested party; felony/crime of dishonesty, specific incidents, reputation for lies, etc) or Rehabilitation on redirect (clarification of facts, reputation for truth, Prior consistent statements)D. FRE applicable in Federal civil and criminal cases (not prelim determinations, grand juries, probation, sentencing, warrants, bail)

Question 225

Relevancy and Exclusion issues

Answer 225

A. Probative value: relevance (makes a fact more or less likely to be true), 403 (probative value outweighs prejudicial effect), no unfair prejudice, confusion, or waste timeB. AuthenticationC. Character etc: admissibility (civil v. criminal cases), reputation or opinion, Habit/routine, crimes or bad acts to show MIMIC (motive, intent, mistake, identity, or common plan or scheme), sexual misconductD. Expert testimony: qualified (specialized skill, knowledge, or training). will assist trier of fact and based on observation, facts presented at trial, or reliable information in field of expertise, Ultimate issue rule (opinion on issue is ok, but not on req mental state), reliable in the field, proper subject matter (specialized knowledge)E. Real, demonstrative, and experimental evidence: need authentication if admitted, risk of unfair prejudice?

Question 226

Privileges and other policy exclusions issues

Answer 226

A. Exclude based on privilege: Spousal immunity/marital communications; attorney-client; work product;physician/psychotherapist-patient; 5th Amend; otherB. Exclude based on policy: insurance; remedial measures; settlement; offer to pay medical expenses;plea negotiations; victim’s past sexual conduct

Question 227

Evidence tips

Answer 227

● Consider each piece/statement separately.● Think inclusively about admissibility, possible ways to admit, consider broad array of rules.● Ask: Civil or criminal? Relevant? More probative than prejudicial? Purpose (impeachment or substantive)?Exclusion?

Question 228

Confrontation clause

Answer 228

Always discuss this in evidence cases.Triggered if witness isn’t testifying. Applies to TESTIMONIAL statements.For statements to police/911 calls, ask: was primary purpose to resolve ongoing emergency or assist in investigation?

Question 229

Con law essay checklist

Answer 229

1) The Nature of Judicial Review: courts and jxn2) Separation of powers: congress, exec, interbranch3) Federalism issues: immunities and limits4) Individual rights: PDP, SDP, EqP, takings, 1st Amd, etc

Question 230

The Nature of Judicial Review issues

Answer 230

A. state and federal courts, source of federal judicial power (Art III, Section 1)B. Jurisdiction: Art III Section 2 limits the jurisdiction of federal courts, 11th amendment and sovereign immunity prohibits suits against the government without consentC. Judicial review in operation: Case or controversy (real and substantial dispute), issues that prohibit review based on standing, ripeness, mootness, abstention, political question, or advisory opinions; adequate andindependent state grounds

Question 231

Separation of powers issues

Answer 231

A. Powers of Congress: interstate commerce (channels, instrumentalities, or activities substantially affecting), taxing and spending (common defense and general welfare), war and armed forces, 13th-15th Amends, other powers (investigatory, property, eminent domain, maritime, bankruptcy, postal, and copyright/patent)B. Powers of the president: enforce laws, comman military, foreign relations, pardon, appointmentC. Interbranch relationships: checking powers on exec (impeachment, investigation, legislative veto, appropriations, agencies), exec checking congress (veto or not signing legislation), federal government immunity (suits, state tax, other state regulations)

Question 232

Federalism issues

Answer 232

A. Intergovernmental immunities: state regulating/taxing fed govt, fed commanding the state to act (10th Amend)B. Federalism-based limits on state authority: discriminating against out-of-state actors or substantiallyburdening interstate commerce (DCC), supremacy clause, preemption, congressional authorization

Question 233

Individual rights issues (6)

Answer 233

A. State action requirement: govt functionB. Due process: SDP (fundamental right infringed), PDP (life, liberty, or property; Matthews test)C. Equal protection: fundamental right, SSP treated differently, classification, scrutiny owedD. Takings: private property without just compensationE. Other protections: P&I (citizens of another state), Contracts Clause (impairs existing obligation), Bills of attainder (specific individuals or groups without trial), Ex Post Facto (retroactive criminal laws)F. First Amendment freedoms: relig, establishment, speech, press, association

Question 234

1st Amd issuses (4)

Answer 234

1) Freedom of religion, separation of church and state:a) Free exercise: punishment based on beliefsb) Establishment: preference of relig (SS applies), or neutral (Lemon test: secular purpose, does not advance or inhibit, no excessive government entanglement)2) Freedom of speech:a) content-specific (SS applies) vs content-neutral (public/privare forum)b) unprotected speech: hostile speech, fighting words, obscenity, incitement of violencec) Commercial speech: intermediate scrutinyd) Unconst’l b/c prior restraint, vague, or overbroad?3) Freedom of the press: Is the reporting truthful, a matter of public interest, lawfully obtained4) Freedom of association: govt targeting group membership

Question 235

con law essay tips

Answer 235

● For each Q, determine where issue falls within the maintopics: reviewability of a case? powers of the branches?Federalism? Individual rights?● Keep track of the who, what, when, where, and how: who’s acting (state, fed), what are they doing (reg, leg), order of the events, where, etc● if the government is telling you what you can or cannot say: content-specific and strict scrutiny applies.

Question 236

Torts essay checklist

Answer 236

1) Intentional torts: claims, defenses2) Negligence: duty, breach, cause, limits, damages, defenses3) Strict Liability (animals, abnormally dangerous activities, defenses) and Products liability (manufacturer/design defect, distribution chain liable, express or implied warranty, defenses)4) Other Torts: public/private nuisance, invasion of privacy (intrusion, appropriation, public disclosure, false light), defamation (libel or slander, public/private, malice, truth), Misrepresentation (intentional or negligent), Interference with contractual/business relations

Question 237

Intentional torts issues

Answer 237

A. Types: assault, battery, false imprisonment,intentional infliction of emotional distress, trespass to land and chattels, conversion?B. Defenses: Consent, necessity, privileges, defense of self and others, parental discipline, protection of property, or others.

Question 238

Negligence issues (8)

Answer 238

A. Duty: foreseeable P, special relationshipB. Standard of care/Breach: RPP standard, other standard (children, mentally/physically impaired, professionals), Breach (conduct falling below the standard owed), statute or custom defining the duty/standard (neg, custom)C. Problems relating to proof of fault: Res Ipsa (wouldn’t normally occur w/o neg)D. Problems relating to causation: Cause-in-fact (but-for test, substantial factor, J/S liability), Proximate cause (foreseeablePs, superseding or intervening causes)E. Limitations on liability and special rules:harm too remote/unforeseeable, superseding cause breaks chain of causation, owners/occupiers of land, NIED (zone of danger, bystander, pure economic loss)F. Liability for acts of others: employee vs contractor, nondelegable dutyG. Damages: actual damages, Eggshell skull plaintiff, personal injury (pain, suffering, medical, lost wages) or property damagesH. Defenses: reduced or barred under a contributory fault or comparative neg. assumption of risk (knowingly, voluntarily)

Question 239

Torts essay tips

Answer 239

● For broad Qs, keeptrack of: actors/potential Ds, D’sact(s) and/or intent, P’s harm.● Have an organizational strategy when dealing with multiple claims and or Ds● First, prima facie case, then any applicable defenses. Remember, defenses are not counter-arguments to establishing PF case.● Comparative and contributory negligence are defenses - NOT calculation of damages. Default is pure comparative negligence

Question 240

Agency essay checklist (5)

Answer 240

1) Was an agency r’ship created? (words, conduct)2) Agent’s power to bind principal (implied/express, scope, ratification)3) Contractual liability to 3rd parties (actual/apparent authority, un/disclosed principal)4) Liability to 3rd parties in tort (negligence, intentional, vicarious, frolic/furtherance, employee/contractor)5) Fiduciary duties: care, loyalty (self-dealing)

Question 241

Partnership essay checklist (6)

Answer 241

1) Creation: business for profit, type (formalities), agreement (provisions)2) Conducting business: rights of partners (general/limited, profits/loses, mgmt, info). disputes (resolving), transfers of interest3) Duties: care, loyalty, disclosure, breach/remedies4) Liability to 3rd parties: personal, general/limited, j/s5) Dissolution: wrongful, winding up, notice, creditors6) Limited Partnerships: control, agreement, formation

Question 242

Agency/Partnership essay tips

Answer 242

● Analyze each type of authority (express, implied, and apparent). Look for apparent authority (common)● If fact pattern discusses an unclear/imporperly formed corporation, analyze if a partnership was created.● Whether parties are calling it a partnership is NOT determinative (just mult people in business for profit)● A partner has the power to dissociate, but can be wrongful, may have liability for breaches of a partnership agreement● Agency often tested w/other subjects. e.g. partnership, torts

Question 243

Corporations essay checkpoints (9)

Answer 243

1) Formation: articles (filing), bylaws, de jure/ de facto2) Pre-organization transactions: promoter liablity, Ks to buy shares (subscriptions)3) Piercing the Veil: alter ego, capitalization, formalities, tort4) Financing: security equity, stock classes, dividends, repurchase5) Managment/control: SHs, directors, officers, members6) Fiduciary Duties: care, loyalty, breach, BJR7) Close corps, control devices: restrictions of share transfers (reasonable, conspicuous), resolution procedures, judicial dissolution, etc8) Organizational structure: amendments, fundamental changes (mergers, consolidations, SoSAA), notice, dissenters, dissolution, liquidation9) SH/member litigation: direct, derivative

Question 244

Management and Control issues (corps)

Answer 244

A. Shareholders: meetings (annual, notice, quorum), voting (proxy, voting agreement, straight/cumulative)B. Directors: regular/special meeting (notice, quorum), unanimous written consent, delegation to committees, objection (dissent, abstention)C. Officers: actual/apparent authority, liabilityD. Members and managers: LLCs (presumed to be member managed), operating agreement, other types(manager managed), majority approval/ratification

Question 245

Corps essay tips

Answer 245

● Piercing the corporate veil, often a closely held corp● Fundamental corporate change, often involves issues of procedure and interested director transactions.● valid incorporation does not need to be addressed when we are informed that a business entity has been properly formed.● A director’s presence at a director’s meeting does not be physical presence; unless the articles/bylaws require otherwise; only need presence via communication that allow all participants in meeting to hear each other.● Generally, shareholders do not owe a duty of care, except in closely held corporations b/c they have amanagement role

Question 246

Trusts essay checkpoints

Answer 246

1) Creation and Construction: type, creation, limits2) Powers and Duties of Trustees: fiduciary duties of Care, Loyalty (self dealing, personal benefit, conflict of interest), good faith, managing trust res (prudent business person), Accounting3) Modification and Termination: who is requesting?4) Future Interests: RAP, powers of appointment

Question 247

Creation and Construction issues (trusts)

Answer 247

A. Classification: express (inter vivos, testamentary, pour over, Totten, charitable, honorary, spendthrift, discretionary, implied (Resulting, constructive)B. Creation: settlor capacity/intent, delivery of trust res, ascertainable beneficiaries, valid purpose, active duties imposed, trusteeC. Alienability of trust interests: limitation on beneficiary transferD. Construction problems: issues involving survivorship or gifts to classes/heirs/issue, ascertaining beneficiaries, close closing

Question 248

Trusts essay tips

Answer 248

● Commonly issues: Creation and type, Beneficiaries/creditors interests, management and duties of trustee, Modification/termination of trust● Cy pres for charitable trusts, court chooses alternativecharity (close to original purpose) when the original purpose is impossible or impracticable.● Re termination of the trust, consider these cases: 1) trust purpose is accomplished, 2) the trust property is exhausted, 3) all beneficiaries consent, and 4) the settlor can revoke or modify

Question 249

Wills essay checklist

Answer 249

1) Intestate Succession: SS, kids, others, advance, 120 hours2) Wills: execution, codicils, revocation, revival, contracts, construction, constents3) Family protection: elective share, after-born/ pretermitted child4) Living wills and durable Healthcare power: signed, witnessed, eligibility, power

Question 250

Intestate succession issues

Answer 250

A. Share of surviving spouse: descendants or parents of decedent?B. Share of children: adopted and half-blood (same), nonmarital children (inherit from mother, or from father too if paternity adjudicated or proved or marriage)C. Share of ancestors and collaterals: if no surviving spouse/descendants, see if any other kinD. Advancements: writing and acknowledgement that the gift is advance on inheritance?E. Simultaneous death: Did heir survive by 120 hours?

Question 251

Wills issues

Answer 251

A. Execution requirements: UPC or state law (of T’s domicile), required formalities, Holographic will (signed, written in testator’s hand), interested witnessB. Codicils etc: amendment or modification to will, executed w/same formalities as the will, integration of other referenced docs, incorporation by reference (existed before will was executed, intent to incorporate), other facts of independent significanceC. Revocation: by operation of law, subsequent will, or physical actD: Revival: intent to revive the previous will? Is second will revoked?E. Contract to make, refrain from making or revoking a will?F. Construction problems: changes in property and/or beneficiaries affecting bequest? issues of lapse, ademption, accretions, satisfaction, Slayer Act,disclaimers, simultaneous death, abatement, legacies, class gifts, gifts to children and issue.G. Will contests: attack on validity, issues of age, capacity, undue influence, fraud, mistake, no-contest clauses, standing to contest.H. Nonprobate transfers: inter vivos gifts, joint tenancy, tentative trusts, pay-on-death accounts, or any other nonprobate transfersI. Powers and duties of personal representative: appropriate administration of estate

Question 252

often tested key sub-topics for agency (4)

Answer 252

(1) the agent’s power to bind the principal;(2) the principal’s power to ratify acts of a purported agent;(3) an employee’s scope of employment.(4) liability of P to third parties: vicarious (strict) liability, apparent authority

Question 253

Rights in land (non-ownership)

Answer 253

Right to dictate how the land is to be used.1) Covenant (PINT, damages)2) Equitable Servitude (PIN, injunction)Make affirmative use of the land.1) Easements 2) Profits 3) Licenses

Question 254

Checklist for easements (3)

Answer 254

a. Was the easement ever properly created? b. What is the scope of the easement? c. Has the easement ever been terminated?

Question 255

plaintiff seeking to pierce the corporate veil must prove:

Answer 255

(1) shareholder “control” that effectively renders the corporate form a façade,(2) use of the corporate form to obtain an improper or fraudulent purpose, and(3) injury or unjust loss resulting from this wrongful use of the corporate form.

Question 256

a “piercing the corporate veil” analysis is typically triggered by one of two fact patterns:

Answer 256

(1) a close corp (public corps are not pierced) in which corporate formalities are not observed and corporate and personal funds are commingled, and(2) a parent corp and its subsidiary when there is insufficient segregation of their respective businesses, records, and finances.

Question 257

family law essay tips

Answer 257

● difference between voidable and void. Voidable if: under age, impotent, intoxication, duress, fraud, and mental incompetence. Void if: Failure to meet legal requirements (no license or ceremony, close relations, polygamy, lack of capacity).● Review factors that the court will consider in applying the BIOC standard for issues involving child support, custody, or adoption.● The “substantial and material change in circumstances” standard is used for issues involving modification of support.● Be sure to review relevant statutes such as the UPAA, UPA, UCCJEA, PKPA, and UIFSA

Question 258

Family law checklist

Answer 258

1. Getting Married: gifts in anticipation, limitations (incest, age, bigamy), formalities, capacity, CL marriage, prenup2. Being Married: duty to support, privacy, consortium3. Separation, Support, Dissolution, Annulment4. Child Custody: BIOC, etc5. Rights of unmarried cohabitants: contract, legitimacy, paternity (presumption, establishing)6. Parent/Child/State: emancipation, immunities, custody and control, neglect, parental fitness7. Adoption, etc: Jxn, placements, consent, surrogacy

Question 259

issues re Separation, Support, Dissolution, Annulment

Answer 259

A. Fault-based/no-fault divorce: grounds, defenses,annulment for void/voidable marriageB. SMJ over divorce and personal jxn over propertyC. Has court issued preliminary, interlocutory, or final order?D. Division of property: separate or marital, valuation,community property or equitable distribution stateE. Alimony/spousal maintenance: type (temporary, periodic, rehabilitative, reimbursement, lump sum)?F. Child support: duty to support til 18 (generally), consideration of income, number children, spec needsG. Modification of maintenance and child support: “substantial change in circumstances”H. Enforcement of awards: attach wages, seize and sell property, and revoke licenses, UIFSA across state linesI. Mediation or dispute resolution: by court referalJ. Separation agreements: must be mutually agreed to, fair, and voluntary, can merge into the divorce decree

Question 260

Child custody issues

Answer 260

A. Standard for custody: BIOCB. Visitation: factors (parental wishes, child preferences, parent misconduct, family relationships), conditions on visitationC. Joint custody: BIOC, parental agreement, manageabilityD. Enforcement: usually thru contempt proceedings, UCCJEA, and PKPAE. Procedural issues: jxn (child’s home state), child’s preference (if 12 years or older), counsel for child (appointment of guardian ad litem)F. Modification requests: substantial change in circumstances, parent relocation, third party seeking visitation

Question 261

Approach for Secured Transactions

Answer 261

1) Is there a secured transaction (creating a security interest in collateral)? If so, what is the collateral?2) Was a SI properly created in the collateral?3) Was the SI properly perfected?4) If there’s more than one SI, which takes priority?

Question 262

Checkpoints for Secured Transactions

Answer 262

1. Applicability: UCC Art. 9 applies to SIs in personal prop, agricultural liens, sale of accounts receivable, chattel paper, negotiable instruments, promissory notes, payment intangibles, consignments, and certain lease purchase agreements2. Categorization of Collateral: goods (consumer, inventory, farm products, equipment), Tangible intangibles (instruments, bills of lading, chattel paper), Intangible intangibles (accounts), Investment property (securities accounts), Proceeds3. Attachment of SI: debtor has rights in collateral, SP gives value, security agreement (description, authentication, etc)4. Perfection: provides notice of SI, nec for priority5. Priority: unperfected (attachment), perfected (file or perfect, PMSI, BIOCOB), lien creditors6. Default: repossession (breach of the peace), foreclosure (notice, priority, etc), Judgment, redemption

Question 263

Perfection issues

Answer 263

Was the security interest perfected?1. Filing2. Possession3. Control4. Automatic (temporary or permanent?)Any special considerations for perfection?1. After-acquired property or a future advances clause2. Disposition of the collateral by the debtor (proceeds)3. PMSI4. Fixtures5. Accessions or commingled goods

Question 264

Secured Transactions essay tips

Answer 264

● Steps: (1) categorize collateral, (2) attachment, (3) perfection, (4) priority, (5) default.● If both PSs are unperfected, first to attach has priority.● PMSI in consumer goods are automatically perfected.● A security interest in a motor vehicle can only be perfected if the security interest is noted on the vehicles certificate of title.● A battle of priority between secured parties is commonly tested.

Question 265

Summary for discovery (4)

Answer 265

mandatory disclosure (initial disclosure, expert, pre trial), scope (relevance, work product, privilege, proportionality, experts), ways to get discovery (interrogatories, depositions), getting parties to comply

Question 266

Formation of a corporation requires

Answer 266

(1) people - incorporators(2) paper - articles of incorporation(3) act - delivery of notarized articles to Secretary of State

Question 267

An incorporator forms a corporation by

Answer 267

executing the articles and delivers them to the Secretary of State.

Question 268

An incorporator can be a person or an ________.

Answer 268

entity. Like another corporation.

Question 269

Articles of incorporation are a contract between the corporation and _________ and the corporation and the ___________.

Answer 269

shareholders; state.

Question 270

The information that the articles of incorporation are required to have is

Answer 270

(1) the corporate name, including one of the words corporation, company, incorporation, or limited(2) name and address of each incorporator(3) name and address of each INITIAL director(4) name of registered AGENT and registered OFFICE

Question 271

If there is no statement of duration in the articles of incorporation, then the corporation has a _________ duration.

Answer 271

perpetual.

Question 272

A corporation generally must have a statement of ___________.

Answer 272

purpose.

Question 273

A general purpose is okay and in some states a general purpose is even __________.

Answer 273

presumed and requires no statement at all. An example of a general purpose statement is “engage in all lawful activity after first obtaining necessary state agency approval.

Question 274

A corporation performing an activity outside its statement of purpose is called

Answer 274

ultra vires.

Question 275

At common law, any ultra vires contract could be _______, but today

Answer 275

voided; ultra vires contracts are valid.

Question 276

Shareholders can seek an ______ for ultra vires activity.

Answer 276

injunction.

Question 277

Managers responsible for ultra vires activity are _____ to the corporation for ___________.

Answer 277

liable; ultra vires losses.

Question 278

Authorized stock is

Answer 278

the maximum number of shares the corporation can sell.

Question 279

Issued stock is the

Answer 279

number of shares the corporation actually sells.

Question 280

Outstanding stock is the

Answer 280

shares that have been issued and not reacquired.

Question 281

With respect to stock, the articles must include

Answer 281

(1) authorized stock(2) number of shares per class(3) information on voting rights and preferences of each class

Question 282

When incorporators deliver notarized articles to the Secretary of State, pay fees, and the Sec. State ______ the articles for filing, this gives rise to a _________ corporation.

Answer 282

accepts; de jure.

Question 283

After forming the corporation, the board of directors holds an ________ meeting where it selects _______ and adopts __________________.

Answer 283

organizational; officers; bylaws and conducts any other appropriate business.

Question 284

The law of the state of incorporation governs the __________ of the corporation.

Answer 284

internal affairs.

Question 285

_-corps do not pay income tax at the corporate level.

Answer 285

S (as opposed to C-corps, which pay income tax on profits and shareholders are taxed on distributions: “double taxation”)

Question 286

To be an S-corp, a corporation must

Answer 286

(1) have no more than 100 shareholders(2) all of whom are human and U.S. Citizens or residents(3) and have only one class of stock that is NOT publicly traded

Question 287

Directors, officers, and shareholders ______ generally liable for the conduct of the corporation.

Answer 287

are not.

Question 288

A “de facto” corporation arises when

Answer 288

(1) there is a relevant incorporation statute (this is ALWAYS true)(2) the parties made a good faith, colorable attempt to comply with said statute(3) the parties make some exercise of corporate privileges (i.e. they act like they are a corporation)

Question 289

If the doctrine of “de facto” corporation applies, the entity is treated like a corporation for _______ except in an action ________.

Answer 289

all purposes; by the state.

Question 290

A corporation by estoppel exists if

Answer 290

you treat a business like a corporation then you may be estopped from denying that it is a corporation.**This goes both ways, i.e. you can’t get out of contracts you formed with an entity you treated as a corporation, nor can an improperly-formed corporation get out of liability by saying it was not properly formed.

Question 291

Corporation by estoppel only applies in ________ cases.

Answer 291

contract.

Question 292

De facto corporation and corporation by estoppel have been _______ in many states.

Answer 292

abolished. Throw that in the essay answer.

Question 293

Bylaws ______ required to form a corporation.

Answer 293

are not.

Question 294

By laws _______ filed with the state.

Answer 294

are not.

Question 295

The initial bylaws are adopted by the _________ at the _______ meeting.

Answer 295

board of directors; organizational (first meeting).

Question 296

_______ can amend or repeal the bylaws of a corporation.

Answer 296

Shareholders (and the BoD in some states).

Question 297

If bylaws conflict with the articles, the ______ control.

Answer 297

articles. The articles are a formal contract with the state, so we give them priority.

Question 298

A _____ is a person acting on behalf of a not-yet-formed corporation.

Answer 298

promoter.

Question 299

A corporation is liable on pre-incorporation contracts when it

Answer 299

adopts the contract (expressly or impliedly if the corporation accepts a benefit under the K). The promoter is still liable.

Question 300

A promoter is personally liable on pre-incorporation contracts until there has been

Answer 300

a novation (between the promoter, now-formed corporation, and the other party to the contract).

Question 301

A “foreign” corporation is any corporation formed

Answer 301

in another state.

Question 302

Foreign corporations that transact business in a state must

Answer 302

(1) qualify; and(2) pay prescribed fees.

Question 303

“Transacting business” means the _______ course of ______ business, it does not mean ___________.

Answer 303

regular; INTRAstate; occasional or sporadic activity or simply owning property there.

Question 304

A foreign corporation “qualifies” by getting a certificate of ______ from the Sec. State by providing its

Answer 304

(1) articles; and(2) proving good standing in its home state.

Question 305

If a foreign corporation transacts business without qualifying it

Answer 305

(1) faces a civil fine; and(2) cannot sue in the state (but it can be sued and defend)

Question 306

An “issuance” occurs when

Answer 306

a corporation sells its own stock.

Question 307

A “subscription” is a

Answer 307

written offer to buy stock from a corporation.

Question 308

Pre-incorporation subscriptions are _____ for ______ months unless ______.

Answer 308

irrevocable; six; the subscription says otherwise or all “subscribers” allow you to revoke.

Question 309

Post-incorporation subscriptions are _______ until ________.

Answer 309

revocable; accepted by the corporation (i.e. the BoD accepts the offer).

Question 310

Voting rights: The general rule is that the right to vote lies in the ______ shareholder as of the _____ date.

Answer 310

record; record.

Question 311

The record shareholder is the person shown as the ______ in the corporate _______.

Answer 311

owner; records.

Question 312

The record date is a voter eligibility _________.

Answer 312

cutoff.E.g. Meeting for August 7, record date of July 8. S sells B her stock on July 25. Who votes? S votes.

Question 313

The three exceptions to the general shareholder voting rule are

Answer 313

(1) corporation re-acquires stock before the record date(2) death of a shareholder(3) proxies

Question 314

If the corporation reacquires share of stock before the record date, then _____ votes the shares.

Answer 314

nobody (this is treasury stock).

Question 315

If a shareholder dies after the record date, ______ votes the shares.

Answer 315

S’s executor.

Question 316

A “proxy” is a _______ signed by the ______ shareholder to the _______ of the corporation authorizing __________.

Answer 316

writing (fax or email is okay); record; secretary; another to vote the shares.

Question 317

Proxies are valid for ______ months unless it says otherwise.

Answer 317

eleven.

Question 318

A proxy can be revoked by ________ or by __________.

Answer 318

a writing; attending and voting.

Question 319

A proxy ________ be revoked even if it says it is ________.

Answer 319

can always be; irrevocable.

Question 320

A proxy is only irrevocable if a proxy both says it is ________ and it is couple with ________.

Answer 320

irrevocable; an interest.E.g. S gives B an option and gives B a proxy to vote the shares.

Question 321

The requirements of voting trusts are

Answer 321

(1) written trust agreement, controlling how the shares will be voted(2) copy to the corporation(3) transfer legal title to the voting trustee(4) original shareholders device trust certificates and retain all shareholder rights except for voting

Question 322

The requirements for the voting or pooling agreement are

Answer 322

(1) shareholders can enter into voting agreements(2) signed writing(3) split of authority: are voting agreements enforceable?

Question 323

Shareholders vote either in a _________ or _______ written consent by holders of _____ voting shares.

Answer 323

meeting; unanimous; all.

Question 324

_____ meetings are required where ______ are elected.

Answer 324

Annual; directors.

Question 325

Special meetings can be called by

Answer 325

(1) the president(2) the board(3) the holders of at least 10 percent of the voting share(4) anyone else authorized in the bylaws

Question 326

Shareholders cannot call a meeting to remove _______.

Answer 326

officers. SHs can’t remove officers.

Question 327

_______ must be given to every shareholder entitled to vote between ____ and ____ days before the meeting

Answer 327

Written notice; 10; 60.

Question 328

A notice of a shareholder meeting is required to contain

Answer 328

(1) time and place of the meeting(2) the purpose of the meeting

Question 329

If proper notice is not given to all shareholders, then any action taken at the meeting is ____ unless those not sent notice __________.

Answer 329

void; waive the notice defect either expressly or impliedly (attend the meeting w/o objecting)

Question 330

Shareholders generally vote on these things

Answer 330

(1) elect directors(2) remove directors(3) fundamental corporate changes(4) anything else that the board asks for a SH vote on

Question 331

Every time shareholders vote, there must be a _____ represented at the meeting.

Answer 331

quorum.

Question 332

Determining a quorum at the shareholder meeting focuses on the number of _______ represented, not the number of ______ and generally requires a ______ of outstanding ________.

Answer 332

shares; shareholders; majority; shares.

Question 333

A shareholder quorum _____ be lost of people leave the meeting.

Answer 333

cannot (contrast a director’s quorum which CAN be lost).

Question 334

To elect a director, a ______ of the vote is required.

Answer 334

plurality.

Question 335

To remove a director, traditionally a ______ of the shares ________ is required.

Answer 335

majority; entitled to vote

Question 336

Cumulative voting arises when voting on ____________.

Answer 336

elections of directors.

Question 337

Under cumulative voting, the total number of votes is the number of ______ times the number of ________.

Answer 337

shares; directors to be elected.**This replaces three separate elections in which you’d only get the same number of votes, but with cumulative voting there is one big at large election and your multiplied votes can be spent on one person.

Question 338

Generally, in most states if the articles are silent, cumulative voting is

Answer 338

not allowed.

Question 339

Stock transfer restrictions are valid if they are

Answer 339

reasonable.

Question 340

Stock transfer restrictions are “reasonable” if they are

Answer 340

not an undue restrain on alienation.

Question 341

If a stock transfer restriction is valid, it can be enforced against the transferee (buyer) if

Answer 341

(1) the restriction is conspicuously noted on the stock certificate; or(2) the transferee had actual knowledge of the restriction

Question 342

_________ can demand access to inspect the books and records of the corporation on _________ notice.

Answer 342

Any shareholder; 5-days written.*Directors have unfettered access to records.**If corp refuses, SH can sue for a court order and if she wins get attorneys’ fees.

Question 343

In order to properly demand access to the corporate records, a shareholder must state a proper ______.

Answer 343

purpose related to the interest as a SH.

Question 344

A shareholder only has a right to a dividend or other distribution only when the _______ declares it.

Answer 344

board.**SH has to show abuse of discretion, super hard, like, the corp would have to make lots of money and board would have to pay themselves lots of bonuses.

Question 345

Dividend math:

Answer 345

(1) take total dividend amount(2) subtract the number of preferred shares times the $ preference and if the preferred shares are CUMULATIVE, then times number of years since dividend(3) divide remaining amount evenly across common stockE.g. $400k dividend, 100k common stock, 20k cumulative $2 preferred stock, no dividend in 4 years:

Question 346

An earned surplus is all _____ minus all _______ mins _______ previously paid.

Answer 346

earnings; losses; distributions.

Question 347

Stated capital _____ be used for distributions.

Answer 347

cannot.

Question 348

Stated capital arises when a corporation _____ stock and is the _____ value of the stock issuance if there is one.

Answer 348

issues; par. If no “par”, then the board allocates between par and capital surplus at its discretion.E.g. A 10k shares of $2 par stock for $50k, the stated capital is the par value of $20k, the capital surplus is the remaining $30k.

Question 349

Capital surplus ____ be used for distributions if _________.

Answer 349

can; the shareholders are informed.

Question 350

Under the modern view, a corporation cannot make a distribution if

Answer 350

(1) it is insolvent; or(2) the distribution would render the corporation insolvent.

Question 351

Insolvent means either:

Answer 351

(1) the corporation is unable to pay its debts as they come due; or(2) totally assets are less than total liabilities.

Question 352

Directors are jointly and severally liable for _____ distributions, but remember the directors’ ______.

Answer 352

improper; good faith defense.

Question 353

Shareholders are personally liable for improper distributions only if

Answer 353

they knew the distribution was improper when they received it.

Question 354

Under ______ liability, a creditor can sue the ______ of a merger or consolidation.

Answer 354

successor; survivor.

Question 355

A transfer of substantially all of the assets not in the ordinary course of business or share exchange ______ a fundamental corporate change for the _______ corporation only.

Answer 355

is; selling. Right of appraisal only for the selling company’s shareholders. No delivery of docs to Sec. State.**Rule of thumb is at least 75% of assets.

Question 356

There is no ______ liability for a transfer of substantially all assets because the ________ still exists

Answer 356

successor; selling company.**Exception if the buyer is a “mere continuation” of the seller.

Question 357

A shareholder can petition a court for involuntary dissolution of a corporation because of

Answer 357

(1) director abuse (waste, misconduct)(2) director deadlock that harms the corp(3) SHs have failed at consecutive annual meetings to fill a board vacancy.

Question 358

If a court does not grant dissolution, it can still order a _______ of the objecting shareholder, which is likely in a _______.

Answer 358

buyout; close corp.

Question 359

Dissolution of a corp starts the liquidation process which consists of

Answer 359

(1) gathering all assets(2) converting to cash(3) paying creditors(4) distributing remainder to SHs, pro-rata by share unless there is a liquidation preference**Must be stated in the articles, otherwise no preference exists.

Question 360

What forms of consideration may the corporation receive when it issues stock

Answer 360

1. Money (cash or check)2. tangible of intangible property, and3. services already performed for the corporation (yes, even though that’s past consideration)*property and past services valued by BoD, which is conclusive as long as they acted in good faith

Question 361

These two forms of consideration for a stock purchase are permitted in some states but not allowed in others

Answer 361

1. promissory notes2. future services*in states where banned, using these results in “unpaid stock” so it’s all treated as water

Question 362

C Corp is issuing 10,000 shares of $3 par stock. It must receive at least

Answer 362

$30,000.(can get more but not less than par value)

Question 363

If stock is “no par” the minimum issue price is set by the ____________

Answer 363

Board of Directors

Question 364

Treasury stock is stock that that the company issued and then

Answer 364

reacquired. It can then sell for whatever issuance price it wants

Question 365

C Corp issues 10,000 shares of $3 par to X for $22,000. The $8,000 gap is known as

Answer 365

water

Question 366

The corporation can recover “water” from

Answer 366

directors IF they knowingly authorized issuance, and the buyer (buyer has no defense; he is charged with notice for the par value).(note: Third parties aren’t liable if they didn’t know about the water)

Question 367

Pre-emptive right is the right of an existing SH of common stock to

Answer 367

maintain her ownership percentage by buying stock whenever there is a new issuance of stock FOR MONEY (cash or check)

Question 368

S owns 1,000 shares of C Corp. There are 5,000 shares outstanding. C Corp is planning to issue an additional 3,000 shares. If S has preemptive rights, S has the right to

Answer 368

buy 600 shares.

Question 369

If the articles are silent, do shareholders have preeemptive rights?

Answer 369

Split of authority.

Question 370

Initial directors are usually named in the articles, and successive Ds are elected by ________ at _________

Answer 370

shareholders at the annual meeting

Question 371

Shareholders can remove a director on the basis of

Answer 371

cause or no cause (unless staggered board, which can be removed only for cause)

Question 372

Typically, a vacant BoD position is selected by the _______, but if the SHs created the vacancy by removing a D, the replacement must be chosen by the _________

Answer 372

BoD or SHs; the SHs

Question 373

Board of Directors can only act in these two ways

Answer 373

1. unanimous agreement in writing2. At a meeting (conference call counts)

Question 374

For the purpose of pre-emptive rights, an issuance of treasury stock (is/is not) a “new issuance”

Answer 374

Split of authority! Depends on the state.

Question 375

If the BoD act in any way other than unanimous agreement in writing or at a meeting, the act is

Answer 375

VOID unless ratified by a valid act.

Question 376

An individual director (is/is not) an agent of the corporation

Answer 376

is not

Question 377

Officers (are/are not) agents of the corporation

Answer 377

are

Question 378

Although regular meetings don’t require notice to be given, special meetings require

Answer 378

notice of the time and place. Failure to give notice VOIDS what happened at meeting, unless Ds not notified waive the notice defect.

Question 379

Directors (can/cannot) give proxies or enter voting agreements

Answer 379

cannot. Each owes non-delegable duties to the corporation

Question 380

If a quorum is present at a board meeting, passing a resolution requires this many votes

Answer 380

a majority vote of those present (also note that a quorum can be lost if people leave)

Question 381

The board can delegate to a committee of one or more directors, but a committee cannot

Answer 381

1. Declare dividends2. Set D compensation3. Fill Board vacancy