ube_copy_20190711104541 Flashcards
how are intestate shares usually distributed?
per capita with representation
what inheritance rights do stepchildren have?
none
The decedent and her only child were involved in a plane crash. Neither was alive when the emergency team reached them. The child, who died without a will, is survived by a spouse. The decedent is survived by only a brother. The decedent left a sizeable intestate estate and a life insurance policy naming the child the sole beneficiary. Who will share in the decedent’s estate, and who will take the insurance proceeds?
decedent’s brother.Both parties were dead when help arrived; thus, there is no sufficient evidence that one survived the other. The decedent’s estate will be distributed as though she survived the child. If the child predeceased the decedent, the decedent’s brother is her only intestate heir and will take the estate. The USDA also applies to life insurance, so the insurance proceeds will be paid to the decedent’s estate and also pass to the brother.
Under the Uniform Simultaneous Death Act (“USDA”), when the title to property or its devolution depends on priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, how is property disposed?
The property of each person is disposed of as if he had survived.
Does the Uniform Simultaneous Death Act (“USDA”) apply to life insurance?
Yes.
If one of two joint tenants kills the other, how is title to the property held?
The killer and the victim’s estate each own one-half of the property as tenants in common.
To execute a valid attested will, the testator must sign the will in the presence of two attesting witnesses who must:
Sign in the presence of the testator.
When a specifically bequeathed item is not in the testator’s estate at his death, what will the court consider in determining whether the bequest is adeemed?
Whether the property was disposed of by a guardian. Intent is irrelevant!
When will a court consider extrinsic evidence to interpret a will?
When the language of the will is ambiguous.
special power of appointment
exercisable in favor of a limited class of appointees that does not include the donee, her estate, her creditors, or the creditors of her estate
general power of appointment
exercisable in favor of the donee herself, her estate, her creditors, or the creditors of her estate
presently exercisable general power of appointment
exercisable by the donee during her lifetime in favor of the donee, her estate, her creditors, or the creditors of her estate; also exercisable by the donee’s will unless the donor expressly limited its exercise to the donee’s lifetime
testamentary power of appointment
Exercisable only by the donee’s will. The fact that the power was created by a testator’s will does not make it a testamentary power. The key is when the power is exercisable.
Does marriage subsequent to a will’s execution revoke the will by operation of law?
No; the new spouse is protected by the elective share statute.
Does divorce revoke life insurance policies in favor of the former spouse?
No! Disposition of the proceeds is governed by the contract with the life insurance company. Thus, if the decedent fails to change the named beneficiary from his former spouse subsequent to their divorce but prior to his death, the former spouse takes the proceeds.
The testator’s son is married with one child. If the testator bequeaths property to his son’s wife, and the son and the wife subsequently divorce, who takes that property on the testator’s death?
The son’s former wife. (The only divorce potentially impacting the estate would be that of the testator.)
When does a beneficiary who unsuccessfully contests a will with a no-contest clause NOT forfeit her bequest?
when the challenge was brought in good faith and based on probable cause
When is extrinsic evidence admissible in interpreting a will?
to show that the testator was unaware of the nature of the instrument he signedto resolve ambiguity of intent in the will
Totten trust
deposit of money in the depositor’s own bank account in trust for another person
When does a presumption of undue influence arise?
(i) a confidential relationship existed between the testator and beneficiary, and (ii) the beneficiary participated in in a significant activity related to the execution of the will, such as procuring or drafting the will.
key essay phrases
The distribution of the estate will depend on the law followed by the jurisdiction.The will speaks at time of death.Valid disclaimers are treated as though the person predeceased.
ademption
Failure of a gift because the property is no longer in the testator’s estate at time of death.
probate
process by which a will is proved in court
cy pres
near as possible to the testator’s or donor’s intentions when these cannot be precisely followed (money left to IJM, IJM no longer exists, so it goes to Out of Darkness)
requirements to revoke by written instrument
present intent to revoke, instrument executed with same formalities as required to execute a will
acts sufficient to revoke a will
vary by state, but generally:burning, tearing, obliterating, canceling a material portion
quantum meruit
reasonable sum of money to be paid for services rendered when the amount due is not stipulated in the will (or any contract)
what prevails when the common law and UCC Article II differ on the sale of goods?
UCC
“goods” for UCC Article II purposes
tangible things, but not real estate, services, intangibles (patent, etc.)
Article II “merchant”
one who regularly deals in goods of the kind or otherwise holds himself out as having special knowledge or skills relative to the practices/goods sold
why are quasi-constructed?
to avoid unjust enrichment
unilateral contracts recognized under UCC
clear and unambiguous understanding that completion of performance is the only manner of acceptanceoffer to the public, like a reward offer
void v. voidable contract
can’t be enforced v. party may elect to enforce
contract elements
mutual assent (offer and acceptance)consideration (bargained-for exchange or substitute)no defenses (mistake, illegality, statute of frauds, lack of capacity)
requisite specificity for subject in real estate contract
land and price terms
requisite specificity for subject in sale of goods contract
quantity
requisite specificity for subject in employment/services contract
duration for employment; nature of work for other services(if an accepted offer doesn’t specify duration for employment, considered terminable at the will of either party)
when is a contract missing terms still deemed formed?
parties intended to make a contractreasonably certain basis for remedy (court can supply reasonable terms, like price for goods or reasonable time for completion)
offer when a material term is ambiguous?
no; neither under common law nor UCC (different from missing term!)
how can uncertainty of a vague term by cured?
acceptance or full performance
when can an offer be indirectly revoked?
when offeree receives:correct infofrom a reliable sourceof offeror’s acts indicating to a RPP the offer is off the table(sold the car to someone else)
when is revocation effective?
when received by offeree (unless published; then it’s effective when published)
under UCC Art. II, how long is a merchant’s firm offer open (not revocable) without consideration
often stated; otherwise a reasonable time, up to three months(if the offer says the option will stay open for more than three months, it’s only valid for three months)
when does a unilateral offer become irrevocable?
once performance has begun
counteroffer: new offer or rejection?
both
test for mere inquiry or counteroffer
whether a reasonable person would believe the original offer was rejected
when is rejection effective?
when received by offeror
what operations of law terminate an offer?
death or insanity of either partydestruction of K’s subject mattersupervening illegality
can an offeree’s power of acceptance be assigned?
generally not
if A sends B an offer and B sends A the same offer, is a K formed? what if the offers contain the same terms?
never. offeree must be aware of the offer!
if A finds O’s watch and returns it to O without knowledge of O’s reward offer, does A have a contractual right to the reward?
no
is the offeree of a unilateral contact required to give the offeror notice that performance has begun?
no, but notice of completion is required within a reasonable time
when can silence constitute acceptance of a bilateral offer?
when, given prior dealings or trade practices, silence as acceptance is commercially reasonable
how does UCC Art. II construe shipment of nonconforming goods?
acceptance creating bilateral K and a breachUNLESS seller seasonably notifies buyer that a shipment of nonconforming goods is offered only as an accommodation
is a buyer required to accept an accommodation?
no
what happens if a buyer rejects an accommodation? wny?
shipper is not in breach; may reclaim the goods because her tender doesn’t constitute acceptance of the original offer
under UCC Art. II, how is an offer to buy goods for current or prompt shipment construed to invite acceptance?
by promise to ship, or by current/prompt shipment of conforming OR nonconforming (accommodation) goods
does the accommodation rule apply when shipment is not used as the form of acceptance?
no
does UCC Art. II adhere to the mirror image rule?
no (but recall, Art. II doesn’t apply to real estate, services, etc. – mirror image rule still applies there)
Under UCC Art. II, when an offer for purchase or sale of goods is accepted with additional terms, is the acceptance valid?
yes
Under UCC Art. II, when any party is a nonmerchant, what is the impact of additional or different terms?
mere proposals–terms of the offer govern
Under UCC Art. II, when both parties are merchants, are ADDITIONAL terms accepted?
usually, unless:-they materially offer original terms-offer expressly limits acceptance to its terms-offeror already objected to terms or does so within a reasonable time
Under UCC Art. II, when both parties are merchants, are DIFFERENT terms accepted?
authorities split (some follow knockout rule, some treat different terms as additional terms)
how to construe acceptance made expressly conditional on the acceptance of new terms?
rejection
what if a contract is not formed by parties’ communications, but they begin to perform as if they formed a contract?
formation!
mailbox rule
acceptance by mail creates a contract at the moment of dispatch, provided the mail is properly addressed and stamped
mailbox rule exceptions
offer stipulates acceptance not effective until receivedoption contact involvedofferee sends rejection then acceptance (whichever ARRIVES first is effective)
does mailbox rule apply to rejection or revocation?
no; the rule applies only to acceptance
Per UCC, when is an auction sale complete?
When the auctioneer so announces by the fall of the hammer
consideration elements
bargained for exchangeof legal value (benefit to promisor/detriment to promisee)
does past or moral action as consideration constitute a bargain?
no
can a preexisting legal duty constitute consideration?
no, unless:-new or diff consideration is promised-promise is to ratify a voidable obligation-preexisting duty is owed to a third person-honest dispute per duty-unforeseen circumstances sufficient to discharge
may a promise to refrain from suing on a claim constitute consideration?
yes, if the claim is valid or the claimant believed in good faith that the claim was valid
when can a contract be voidable on grounds of mutual mistake?
BOTH parties mistaken about existing facts re:-a basic assumption-mistake has material effect on the exchange-party seeking avoidance did not assume the risk of the mistake
who can void a contract on grounds of mutual mistake?
the adversely affected party
fraud in the inducement and recourse
party induces another into K by fraudulent misrepresentation; K voidable by innocent party is she justifiably relied on the misrepresentation
material misrepresentation and recourse
innocent party justifiably relied on misrepresentation (fraudulent or not) and the point was material. Voidable.
must fraudulent misrepresentation by spoken or written?
no; can be inferred from conduct. (concealing a fact, frustrating investigation of a fact, etc.)
when can an innocent party take action against misrepresentation?
immediately–doesn’t need to sue on the K; can affirmatively act in equity to rescind the agreement and pursue all breach of K remedies
what if there’s no consideration?
there’s no K
are contracts induced by duress or undue influence void?
no, but voidable.
surety promise
promise to pay another’s debt
statute of frauds requires
certain agreements must be evidenced by a writing signed by the party sought to be bound
SoF writing requirement
one or more writings that reasonably identify:K subjectK between partiesessential terms(don’t forget signature!)
could a memo written on a napkin satisfy SoF?
yes
SoF signature requirement
any mark or symbol with intent to authenticate
Per SoF, can signature be printed or typed?
yes
Per UCC, bay party’s initials or letterhead suffice for SoF signature?
yes
Must both parties sign to satisfy SoF?
No, only the party to be suedIn a suit by the buyer against the seller, an otherwise sufficient writing signed by seller but not the buyer satisfies SoF.
Agreements covered by SoF
MYLEGSmarriage(within one) yearlandexecutor (or admin)goods (for $500 or more)surety
Per Sof, what is the impact of a party admitting in pleadings or testimony that there is an agreement?
Treated as though the party signed a writing.
Per Sof, goods valued at $500 or more for which contracts are enforceable without writing
specially-manufactured goodsadmissions in pleadings or courtpayment or delivery of goods (but K not enforceable beyond quantity of goods accepted/paid for!)
Mnemonic for signed writing by party to be charged not required for goods valued at $500 or more
SWAPspecially made goodswritten confirmation by merchantadmission in courtperformance
What remedies are available is a contract violates the SoF?
sue for reasonable value of service of part performance rendered, or the restitution of any other benefit conferred
Unconscionability is determined by circumstances as they existed ____.
at the time of contract formation
The concept of unconscionability permits a court to ___.
refuse to enforce a provision or an entire contract
When is a suretyship promise outside the SoF?
When made for the promisemaker’s own gain.(Homeowner promises to pay contractor’s debt to building supplier if contractor doesn’t pay, so contractor can obtain supplies to work on homeowner’s house).
If contract provisions appear inconsistent, do written or typed provisions prevail?
written
Against whom are ambiguous provisions construed?
Against the party preparing the contract
Rank of weighting indicators when rules of construction conflict:
express termscourse of performancecourse of dealingtrade usage
basic contract duty at common law versus UCC Art. II
common law: substantial performanceUCC: perfect tender
noncarrier case
sale in which it appears parties did not intend that the goods be moved by carrier
when is payment due for carrier and noncarrier cases?
carrier: due when shippednoncarrier: due when delivered
implications of failure of promise v. failure of condition
failure of promise: breach (gives rise to liability)failure of condition: relieves party of obligation to perform
condition precedent
must occur before performance is due
condition concurrent
condition to occur at the same time
condition subsequent
condition cuts off already existing duty
Agreement to pay “$10,000 if house is sold by April 1.” What type of condition?
condition precedent
Agreement to pay “10,000 for Blackacre. Money and deed exchanged in same transaction.” What type of condition?
condition concurrent
Agreement to buy Blackacre for $100,000 unless zoning is changed. If zoning is changed, no duty to pay $100,000 or transfer deed. What type of condition?
condition subsequent
Does the reasonable person standard apply if the contract involves personal taste or personal judgment? (portraits, dental work, etc).
Not if the contract included a condition of satisfaction.
supervening illegality
subject of contract became illegal due to subsequently enacted law
may impossibility arise before a contract was formed?
no
if a contract is discharged for impossibility, how my parties recover goods already delivered, payment already made, etc.?
suit for recision
impact of temporary impossibility
suspends duties; does not discharge
is a contract discharged after death of the party who was to perform services?
not if the services can be delegated (UNLESS unique service like a famous artist, etc.)
elements for discharge by frustration
supervening actnot reasonably foreseencontract purpose completely/almost completely destroyedboth parties realized purpose at formation
may a contract be mutually rescinded if the rights of a third party have already vested?
no
impact of minor breach v. material breach
minor breach: aggrieved party may recover damages but must still performmaterial breach: aggrieved party need not perform
Does UCC Art. II follow common law of substantial performance?
no
UCC Art. II perfect tender rule
If goods or their delivery fail to conform to the contract in any way, buyer generally may reject all, accept all, or accept any portion fo the commercial units and reject the rest
exceptions to perfect tender rule
installment contracts (then substantial performance applies, even under UCC)seller’s right to cure
What if buyer rejects defective goods and seller, giving reasonable notice of intent to cure, makes new tender of conforming goods?
buyer must accept
What if buyer rejects defective goods that seller reasonably believed were acceptable?
On reasonable notice to buyer, seller may take reasonable time BEYOND contract deadline to produce conforming tender
Per UCC Art. II, can a defective shipment in an installment contract be rejected?
Not if the defect can be cured.
benefit of the bargain damages
sufficient money to purchase substitute performance
when are buyer and seller damages measured?
buyer’s: time she learns of breachseller’s: time for delivery
Standard UCC SoL
four years from breach (can be shortened, but no shorter than one year from breach)
Does the mailbox rule apply when an offer states that acceptance will not be effective until received?
No.
Does the mailbox rule apply when the offeree sends a rejection followed by acceptance?
No; whichever is received first controls.
Per UCC, does a merchant have to sell goods of the kind?
No. Almost anyone in business who has knowledge of certain business practices is considered a merchant in that business. For UCC purposes, a professional pianist is a merchant in the piano selling business.
When does an implied-in-fact contract arise?
When assent is manifested by conduct, as opposed to assent by oral or written language.
when may a condition imply a promise?
when the condition’s occurrence is w/in the benefactor’s control: that party impliedly promises a good-faith effort to make the condition happen
do courts prefer promise or condition?
promise, because it supports the contract (condition may release)
where common law and UCC Art. II differ on sale of goods, what prevails?
UCC Art. II
merchant’s firm offer
Per UCC Art. II: if a merchant makes a signed, written promise to keep an offer open, it will not fail for lack of consideration during the time stated, or a reasonable time if none stated (up to three months)
test for determining mere inquiry
whether a reasonable person would believe the original offer was rejected
when is rejection effective?
when received by the offeror
Does the mailbox rule apply when the offeree sends acceptance followed by rejection?
Yes (though if offeror receives rejection first and relies on it to his detriment, promissory estoppel can block contract enforcement)
Statute of Frauds exceptions
judicial admission (party admits to K in pleadings or testimony)part performance (2 of pay/possess/improve)estoppel
What is the UCC’s time limit on the irrevocability of a merchant’s firm offer?
three months
Can a promise not to sue over a conflict be valid consideration, even if ultimately the premise of the threatened suit turns out to be untrue?
Yes. The person threatened with suit had the right to investigate before agreeing.
Must the modification of a contract for services be supported by consideration?
Yes.
Per the UCC, what happens if a firm offer is specified for beyond three months?
Rather than invalidate, the firm offer will stand; but it will only last for the three-month maximum.
Under the UCC, what if there is no consideration for an offer by a merchant to buy or sell goods in a signed writing, by its terms, gives assurances that it will be held open?
The offer is not revocable for lack of consideration during the time stated (not to exceed three months).
Under the UCC, if an offer by a merchant to buy or sell goods includes a term assuring that the offer will be held open via a form supplied by the offeree, what else must occur for the option to be valid?
The form supplied by the offeree must be separately signed by the offeror.
Can an option contract be prematurely ended by the offer?
No.
If a promisor fails to perform under a contract, a donee third-party beneficiary whose rights have vested can sue whom, and on what grounds?
The promisor, to enforce the contract. Absent detrimental reliance, a donee beneficiary cannot sue the promisee because generally there is no right to sue for nondelivery of a gift.
Per the UCC, regardless an FOB agreement for passing title, when may a seller refuse to deliver except for cash?
When the buyer becomes insolvent.
UCC remedies when buyer refuses to accept conforming goods:
Seller may recover incidental damages PLUS:-diff in market price and contract price-diff in contract price and resale price-lost profits (diff in contract price and at-cost value, if merchant could’ve made additional sales – a la car dealers)
When a builder in construction breaches and doesn’t complete, what may the builder recover?
Costs of substantial performance less whatever the customer had to pay to have someone else complete the work.
When will a penalty provision be enforced?
When it’s construed as a liquidated damages provision.
When can a builder who breaches a construction contract part of the way through construction recover the FULL performance price less the cost of substitute completion?
When substitute builders were readily available to the customer.
May a party seek specific performance when a legal remedy is adequate?
No
May a partial integration be contradicted?
No; only supplemented by evidence of additional consistent terms.
Per UCC, in a deal between merchants, when does it not matter that the party to be bound didn’t sign something?
If the other party confirms the deal in writing and the party to be bound doesn’t object within 10 days.
Can minors be held liable for restitution regarding benefits they received from contracts they made for necessities?
Yes.
If a 17-year old begins an installment contract and continues making payments after turning 18, has he affirmed the contract such that it is enforceable against him?
Yes.
cumulative zoning
creates hierarchy; then land can be used for named use or any higher-ranking use
variance
departure from zoning restriction
amortization
gradual elimination of nonconforming use within land zoning
is the right to airspace above a parcel exclusive?
no, but owner is entitled to freedom from excess noise
doctrines of watercourse rights
riparian (water belongs to those whose land borders the water course; only to be used on riparian parcel)prior appropriation (rights acquired by actual use, determined by priority of beneficial use)
liability for an owner of land in its natural state if excavation causes subsiding (slipping or caving in?)
strict liability
liability for an owner of land ADJACENT to buildings if his excavation causes trouble?
strict liability if est. that land would’ve collapsed in natural stateotherwise only liable if excavation was conducted negligently
can redemption in equity be waived in a mortgage?
no
redemption in equity
prior to foreclosure sale, mortgagor may redeem property by paying the amount due.if the note/mortgage contains an acceleration clause, mortgagor must pay full balance (including any interest)
which interest does foreclosure destroy?
the interest being foreclosed and any junior interests(if a junior interest holder is inadvertently excluded from a foreclosure matter, that holder’s interest remains)
purchase money mortgage
takes priority over prior claimsmaybe given to the seller as part of the purchase price, or to a third party
priority of foreclosure proceeds
expenses/attorneys’ fees/court costsforeclosed loanjunior loans
what if foreclosure proceeds are insufficient to satisfy the mortgage debt?
mortgagee retains a personal cause of action against the mortgagor (deficiency judgment)
lien theory
Mortgagee holds a security interest only; mortgagor is landowner until foreclosure.Mortgagee can’t take possession of land before foreclosure!
When, prior to foreclosure, may mortgagee take possession?
when mortgagor consents or abandons
When property is damaged or destroyed before the testator’s death buy the casualty insurance proceeds are not paid until after the death, does ademption apply?
No. The beneficiary of the specific bequest takes the insurance proceeds.
Do anti-lapse statutes pass gifts to a predeceasing beneficiary’s spouse?
Never. The predeceasing beneficiary’s descendants are substituted.
What is an installment land contract and what is its common forfeiture clause?
Dictates installment purchaser obtains legal title only when the full contract price is paid.Common forfeiture clause: on default, vendor cancels the contract, retakes possession, and retains all money paid.
How are recording acts protective?
They protect bona fide purchasers from the detriment of prior secret interests.
Is recordgin essential to the validity of a deed between grantor and grantee?
Not in itself; but can be essential to protecting the deed from subsequent BFPs.
notice statute
Land conveyances/mortgages, if not recorded, not valid against subsequent BFPs(“notice is everything”)
subsequent BFP
paid valueno actual or constructive notice of prior sale
race-notice statute
subsequent BFP must take without notice and record before the prior granteelack of notice means first in time doesn’t take priority, but the race to record still trumps all
race statute
notice is irrelevant; whomever records first winsrare statute
are donees, heirs, and devisees protected any recording acts?
no: they didn’t pay anything, so that. can’t be BFPs
shelter rule
anyone who takes from a BFP steps into the BFP’s shoes and is likewise protected by recording acts(unless transferee held prior title and is trying to beat the system moving through a BFP)
Is a BFP’s statues impacted by learning of a prior recording between conveyance and recording?
No; only notice at time of conveyance matters.
Does a BFP have a legal duty to perform a title search?
No, but subsequent purchasers are held to whatever notice such a search would have provided
wild deed
not connected to any chain of titleO conveys Blackacre to A. A doesn’t record. A contest to B and B records.O then conveys Blackacre to C. C does NOT have notice of B’s claim.
covenant of seisin
grantor possesses and passes both title and possession at time of grant
covenant for quiet enjoyment
grantor covenants that the grantee’s possession will not be disturbed by a lawful third party claim of title
quitclaim deed
releases whatever interest the grantor has; covenants of title neither included nor implied
three covenants which can only be breached at time of conveyance
seisinright to conveyagainst encumbrances
what if a grantor purports to convey a property she does not own, then she subsequently acquires it?
the property automatically goes to the grantee (unless the grantor only ever conveyed a quitclaim deed)
impact of deed to a dead person
void, even if grantor was unaware of the death. title remains with grantor
impact of grantee returning deed to grantor
none: grantee must draw up and deliver a new deed to return title
Valid delivery when a grantor transfers to grantee via third party WITHOUT CONDITION?
Valid is grantor gave such instructions.Without instructions, validity depends on how the third party is construed. If grantor’s attorney, delivery valid. If considered grantor’s mere agent, delivery invalid because grantor did not pass power.
Valid delivery when a grantor transfers to grantee via third party WITH CONDITION?
Commercial transaction. Valid, and parol evidence is admissible to show condition.
When a grantor transfers to donee via third party WITH CONDITION, may grantor revoke?
Yes, so long as condition is not grantor’s death and there is no enforceable contract to convey.
necessary inclusions for a valid deed
in writingsigned by grantorreasonably identify parties and land
deed valid if name of grantee or land description blank?
generally valid without grantee’s nameland description blank, deed void unless grantee was expressly given authority to fill it in
how precise must a deed’s land description be?
must provide a GOOD LEAD “all my land in Auburn”
