! ray essay intros Flashcards
Family law
-opener
In Pennsylvania, a marriage that is otherwise legal is void for certain reasons (bigamy, consanguinity, incapacity) or can be voidable. Voidable reasons for annulling a marriage would include a fraud or misrepresentation or impotence where the individual marrying the impotent person does not know of the impotence at the time of the marriage.
In this case, the fact that Jeff is impotent would be a ground for voiding the marriage via an annulment. An annulment is an action that makes it as though the marriage never occurred. In his situation, Jeff knew about his impotence, but did not tell Paige. The facts support that Paige, had she known would not have entered into the marriage with him. Jeff’s impotence would thus be grounds for annulling the marriage. The annulment action would be commence in family court by the filing of a complaint.
Crim Pro
- opener
The 4th Amendment to the United States Constitution, as well as article 1 section 8 of the Pennsylvania Constitution, prohibit the government from performing “unreasonable” searches and seizures of citizens. Generally, this means that police cannot search a person or place without a warrant from a neutral and detached arbiter based on probable cause. The warrant has to note the places to be searched and items to be seized with sufficient particularity. There are exceptions to the warrant requirement, however. One of these exceptions is for inventory searches as part of established booking procedures. In order to protect police and to allow smoothly functioning prisons and jails, people who have been arrested and brought to a police station or jail can be subjected to an inventory search. This entails searching the person’s body and clothes to check for contraband and other items.
Con Opener
Standing
Under the constitution, federal courts can only hear real cases and controversies – potential plaintiffs must have standing, the claim must be ripe, and the claim cannot be moot. To have standing, the plaintiff(s) must have an actual injury in fact, caused by the defendant, additionally, the claim must be ripe and not brought too early. Finally, the claim cannot be moot, meaning that the claim cannot be brought after the harm has already subsided or the threat of harm has been terminated.
Contracts PA Law opener
Under Pennsylvania common law, a valid contract requires valid offer, acceptance, and consideration in order to be formed. The party that makes an offer is the offeror, and the party that receives the offer is the offeree. An offer is the expression of a willingness to be bound, which creates the power of acceptance in the offeree, such that the offer merely requires the offeree to say something to the effect of “I accept” for a reasonable person to consider the agreement to be concluded. An acceptance is the expression of assent to an offer, such that the offeree intends to bind himself or herself to the terms contained in the offer. A counteroffer is a return of another offer, instead of an acceptance or express rejection, to a previous offer. At common law, normally counteroffers serve to destroy offers, such that the original offer can no longer be accepted by the offeree. However, there is an exception when the offeree clearly intends to keep the original offer open.
Enforceable Trust
It is unlikely that the court would find that Dan had set up a valid and enforceable trust.
Under Pennsylvania Probate, Estates, and Fiduciaries Code, a trust is valid if the settlor (the individual that creates the trust), creates a trust that is in writing and signed by the settlor, provides clear present intent to create a trust, and names an ascertained beneficiary or beneficiaries one of whom is not the trustee, and trustee.
Here, Dan had instructed to Angela, “Hold this in trust for me and if I die, give the painting to Beth.” While the statement may indicate a present intent to create a trust for himself and Beth if he died, named Angela as trustee, and had intent that it would be held in trust and distributed on his death, Dan made this statement orally, and did not put it in writing. Therefore, the court is unlikely to find a valid trust. Therefore, the painting will likely remain in Dan’s estate and will be probated accordingly.
Adeemed
Under the will, Wes will receive the value of Mainline Manor, Two Million ($2,000,000), Beth will receive nothing. There is a question of ademption in Dan’s will. The specific question is whether the sale of Mainline Manor by Beth will constitute an ademption of the devise of the property to Wes under the will.
Under Pennsylvania law, when a will is validly submitted to probate, any specific devises in the will of property that is no longer in the possession of the testator is adeemed, meaning the devisee does not receive the property or any value recovered for the property. A specific devise is defined as a transfer of property that is sufficient described in the will and in the possession of the testator when the will is executed. However, Pennsylvania has an exception that arises when the testator is declared incompetent or incapacitated and a guardian or conserver then sells property that is the subject of a specific devise in the will. Pennsylvania generally holds that when this occurs, the devisee of the property can receive the net sales price of the specific property, as long as the testator is adjudicated to no longer be incapacitated and survives thereafter for one year.
Fed Income Tax
Dan will likely have income in the amount of 1.5 million dollars on his federal income tax for the sale of his primary residence.
Income under the federal tax system includes moneys earned, debts discharged, the value of services one earns in return for business, the sale of assets, among other categories. Generally speaking the proceeds of the sale of one’s primary residence are included in gross income for income tax purposes. An individual may exclude from gross income up to $250,000 if they resided there for 2 of the last 5 years. The basis of a property is generally the amount at which it was purchased (here $250,000), and this amount is excluded from gross income.
Here Mainline Manor was purchased in 1979 for $250,000 and has since been Dan’s primary residence. Thus, he is eligible to exclude the $250,000 of his basis in the property and $250,000 under the primary residence exemption from his gross income for the year. Therefore, Dan will recognize 1.5 million dollars of income from the sale of Mainline Manor.
PROFESSIONAL RULES OF CONDUCT
Angela did not violate any Pennsylvania Rules of Professional Conduct by preparing Dan’s will.
Under PRPC, a lawyer has a duty to represent a client with competency, due diligence, skill, and knowledge. If a lawyer is not experienced in a field of law, he or she may associate with another lawyer or they may learn the law on their own. An attorney should advise the client to seek another counsel if the lawyer lacks the expertise to handle a matter. A lawyer, however, can handle the matter to the best of his or her knowledge under emergency situations.
partnership
No, Because Ben Had Apparent Authority to Conduct the Contracting with TI.
A partner is bound by the partnership agreement and cannot conduct business as an agent of the partnership outside of the express or implied authority granted to the partner through the partnership agreement. A third party contracting with a partner will be able to enforce a contract that is outside of the scope of the partnership agreement where the partner has apparent authority to enter into the contract. A third party may rely on a partners apparent authority to enforce a contract where in the course of dealings with the partner, the third party reasonably believes that the partner has the authority to enter into the contract and does not have notice that the partner did not have authority to enter into the contract. The contract must be for carrying on the ordinary course of the partnership business.
Intestate
David died intestate, and according the Pennsylvania’s rules of intestate distribution, Jane will be
eligible to take the first $30,000 and one-half of the remaining estate. The rest of the estate will be
distributed in equal shares among Jane and David’s three adult children. Under Pennsylvania intestate
law, the share that a spouse may take is dependent upon whether there are issue and whether those issue
are also issue of the decedent. If there are issue and the issue are of the decedent and the surviving
spouse, the surviving spouse is entitled to take the first $30,000 and one-half of the balance of the estate
Interstate law
Rule
Pursuant to the applicable Pennsylvania’s law of intestate distribution, (since d died intestate) Jane will be eligible to take the first $30,000 and one-half of the remaining estate. The rest of the estate will be distributed in equal shares among Jane and David’s three adult children.
Under Pennsylvania intestate law, the share that a spouse may take is dependent upon whether there are issue and whether those issue are also issue of the decedent. If there are issue and the issue are of the decedent and the surviving spouse, the surviving spouse is entitled to take the first $30,000 and one-half of the balance of the estate
Here, David died intestate in late December 2015. David and Jane were married at the time of his death. Jane is considered a surviving spouse. David and Jane have three adult children. Because the three adult children are issue of both David and Jane, Jane will be entitled to receive the first $30,000 of the estate, and one half of the remaining estate. The other half of the estate will be distributed in equal shares to each of David and Jane’s three adult children. Jane will receive $30,000, plus one half of the estate, and Jane and David’s three adult children will each receive an equal share of the other half of the estate.
RPC rule
ate.
3. Larry violated the Pennsylvania Rules of Professional Conduct (RPC) which prohibits unrelated attorneys from accepting substantial gifts from clients.
The issue here is the gift from Angela of $10,000 to her attorney, Larry, in Angela’s will that Larry drafted. Under the PA RPC an attorney shall not solicit substantial gifts from clients in the form of property or cash or in the form of a future bequest in a will. Further, an attorney is not permitted to create an instrument to devise property that contains a substantial gift to the attorney or the attorneys close family members. There are exceptions, of course, allowing attorneys to draft wills for his or her family members when these individuals want to include in that will a substantial gift to the attorney. Additionally, attorneys are able to accept small items of appreciation, such as gifts at holidays.
4
Here, Larry drafted Angela’s will giving himself a substantial gift, $10,000. Larry was not related to Angela. Therefore, he violated this Rule of Professional Conduct.
Additionally, Angela’s housekeeper overheard Larry inform Angela that if he was to do future legal work for her it “would have to be worth his while and that she could leave anything to anyone in a will.” By his statement, Larry was obviously insinuating to Angela that if she left him something in her will, he would be willing to do other legal work for her. Consequently, Angela told Larry to add a bequest to himself in her will.
Larry’s statement to Angela and act of bequesting himself a sum of $10,000 in her will violates the rule against soliciting gifts from clients. This is arguably a second violation of PA RPC. Also, Larry did not complete any further legal work for Angela so the willed amount cannot be considered payment for services, as she had previously paid a “reasonable fee” for the will.
Fed tax income
David and Jane must include $125,000 from insurance proceeds as income from the involuntary conversion of their home on their 2015 federal income tax return.
The Internal Revenue Code (“IRC”) governs the characterization of income for federal income tax purposes. Under the IRC, income is defined as a realized economic benefit or accession to wealth. Income comes from “whatever source derived.” A cash-basis taxpayer realizes income in the year it is received and also takes deductions for expenses paid in that year. The IRC permits the cost basis of an asset to be deducted from the money received.
Here, David and Jane file jointly (and are again filing jointly for the last time in 2015, the year of David’s death), and lost a home to fire, which was worth $75,000 as the value of the structure when built; the home was totally destroyed. In December 2015, they received a check for $200,000 as insurance proceeds which they deposited into their joint account. When a property is destroyed by fire, the rules of involuntary conversion apply, which allow taxpayers to purchase another home within 2 years of the loss and if they do so, any increase in proceeds realized over and above the value of the structure at the time of involuntary conversion, are not realized and roll into the new property.
However, for this to apply, the taxpayers must purchase a new home within two years. Here, David and Jane’s home was valued at $75,000 when purchased, and they received a check for $200,000 (received in December 2015 – as a cash-basis taxpayer they realize that income in 2015). We are told Jane decided not to rebuild or replace the home. Therefore, after deducting the cost basis of $75,000 from the $200,000 received, $125,000 is income for their 2015 tax return.
One final note, taxpayers are permitted to exclude the income they receive from the sale of a primary residence up to $250,000 ($500,000 if filing jointly). However, the residence must have been the primary residence for any 2 of the preceding 5 years. David and Jane did use the home for the first three years after they bought the house in 2005, but have not done so since, and so the $125,000 is not excludable on that basis.
Prop
Generally, when property is conveyed to another with no restrictions on its use, it is granted in fee simple absolute and the original grantor no longer retains any rights in the property. However, if a conveyance of property limits the conveyance using durational language, such as “so long as,” the property is only conveyed for as long as the attached condition is met. This creates a fee simple determinable in the grantee. When a fee simple determinable is created, there is a possibility of reverter that, unless it is specifically given to another individual, is retained by the grantor and his heirs. A possibility of reverter means that upon the happening of the event that ends the duration of the fee simple, ownership in the property automatically reverts back to the grantor.
PR keep contact with client
Under the Pennsylvania Rules of Professional Conduct (hereinafter PRPC), an attorney, in the course of actively representing a client shall remain in contact with said client. “Remaining in contact” includes, but is not limited to, returning the client’s phone calls, communicating any and all progress or lack thereof on the client’s case to the client, and answering any questions or concerns the client may have. “In the course of actively representing” should be taken to include, but not be limited to, any up-coming court dates, any required filings with a state agency, and any legal steps being taken that may affect the client or
February 2005 Sample Answers 2 3/15/05 ss
his interests. Additionally, under PRPC, an attorney must discuss any and all possible outcomes, defenses, or legal options with a client that are reasonable and feasible to the client’s interests.
