VA MCQ Flashcards
Charitable Organizations & Cy Pres
Under Virginia Law, the doctrine of cy pres applies to trusts & wills.
If a charitable purpose becomes unlawful, impracticable, impossible, or wasteful: the trust does not fail in whole or in part; the trust property does not revert to settlor (or successors); and the court may modify in manner consistent with the settlor’s charitable purpose.
If there is a provision in the trust that would result in distrubution of the trust property to a non-charitable beneficiary this would prevail over the court’s cy pres power ONLY IF (1) it’s going to settlor & they are still alive; or (2) fewer than 21 years has passed since the trusts creation.
Rule Against Perpetuities: Common Law & Virginia
Common Law: If at the creation of any interest, there is a possibility it will not vest within a life in being plus 21 years, it is not valid
Virginia has adopted uniform statutory rule against perpetutities which contains a “wait and see” provision.
* Court must actually wait 90 years and see if the interest vests
Who bears the burden of proving testamentary capacity?
The proponent of the will bears the burden of proving testamentary capacity, and can create a presumption of capacity by showing that the testator complied with the formal requirements of execution.
This presumption shifts the burden of going forward with evidence (burden of production) to the contestant, but the burden of persuasion remains with the proponent.
What is the standard of proof with regard to testamentary capacity?
Preponderance of the Evidence
No-contest clause
A clause in a will that penalizes a beneficiary who contests the will; generally enforceable in Virginia.
How many days does a party have to appeal a final circuit court order?
30 days of the entry of the order
What must a financing statement include and to whom is it filed?
Must include: (1) debtor’s name; (2) name of the secured party or representative of the secured party; and (3) the collateral covered by the financing statement.
It must be filed with the Virginia State Corporation Commission.
When is property abandoned?
When the owner of that property has the intent to abandon that property and manifests that intent.
Once personal property has been abandoned, the person who takes possession of it by exercising dominion and control over it acquires ownership.
When does apparent authority exist?
The other party to the transaction reasonably believes that the dissociated entity/person is still authorized, does not have notice of their dissociation, and is deemed to not have knowledge of the dissociated party’s lack of authority.
Sovereign Immunity: Counties & Municipalities
Counties - enjoy sovereign immunity, cannot be sued in tort, even when acting in a proprietary capacity
Municipalties (Cities/Towns) - enjoy sovereign immunity, only when performing public, governmental functions, NOT when acting in a proprietary capacity
Governmental Functions
- Police & Fire Protection
- Operation of hospitals & public education facilities
- Garbage removal
Proprietary functions
- Routine road maintenance
- Provision of utilities
- Maintenance of recreational facilties (only liable for gross negligence
- Operation of housing authorities
Simultaneous Governmental Proprietary Functions
The action will be considered governmental and sovereign immunity will apply. Examples: snow removal, removal of trees on roadways, repair of traffic lights.
Liability of Government Officers & Employees
Sovereign immunity may extend to government officers and employees who are negligent (not wanton or gross) in performing a governmental function. Courts consider four factors:
(1) nature of the function;
(2) extent of the government’s interest and involvement in the function;
(3) degree of control government exercises over employees;
(4) whether act involved employees discretion.
Immunity does not apply to duties that do not involved judgment or discretion.
Corporations name must include:
- corporation
- company
- limited
- incorporated
- Co. Corp. Inc. Ltd.
Limited Liability Company name must include:
- limited company
- limited liability company
- LC LLC
Curative Statute - Process of Service
Except for actions involving divorce/annulment, process that is received by the person directed within the required time is sufficient.
A dispute concerning who has title to land
Ejectment Action
A dispute regarding possession (often landlord & tenant)
Unlawful entry or detainer
Covenant of seisin
warrants that grantor owns the land as described in the deed
* present
Covenant of right to convey
Grantor has the right to transfer title
* present
Covenant of the right against encumbrances
guarantees the deed includes no undisclosed encumbrances
* present
Quiet Possession
Guarantees that grantee’s possession will not be interfered with by a third party’s lawful claim for title.
* future
Covenant of warranty
guarantees that the grant will defend afainst a third party’s lawful claim for title
* future
Covenant for further assurance
guarantees that the grantor will do whatever is necessary to perfect title should it turn out to be defective
* future
What is the plaintiff’s burden of persuasion in a conversion action?
Preponderance of the evidence
What is the plaintiff’s burden of persuasion in a fraud, IIED, and punitive damages action?
Clear & convincing
What must be turned over to a client when representation is terminated if requested?
Papers produced as work product, even if fees not paid.
Apparent Authority
An unauthorized act is performed in the ordinary course of apparently carrying on the partnership’s business in the geographic area where the partnership typically acts
Implied Authority
When a partner takes action on a reasonable belief that it is required in order to carry out an express authority.
What type of character evidence is occasionally allowed in Virginia?
Reputation, but never opinion.
How long does a party have to refile after nonsuit?
Six months from the date of entry or within the original period of limitations whichever is later/
gift causa mortis
A gift in contemplation of death
* gift is revoked if the donee dies before the donor
Voluntary intoxication is not a defense in Virginia unless…
a person is so greatly intoxicated that he is incapable of deliberation and premeditation, two essential elements to prove first-degree murder (previously capital murder)
Before authorizing the issuance of bonds a local gov’t must:
- majority vote of members of governing body.
- hold a public hearing or if no public hearing, must have received voter approval prior.
- A county must receive voter approval to elect to be treated as a city for the purpose of issuing bonds (does not apply to a city)
Municipality debt limit:
10 percent of the assessed valuation of real estate in the municipality subject to taxation.
Gratuitous Bailee:
- The bailee is not compensated for serving as bailee.
- Required to act with slight diligence, only liable if acts with gross negligence
A virginia court has subject matter jurisdiction over a custody hearing to either enter or modify an order if Virginia:
(i) is the child’s home state and has been the child’s home state for a period of 6 months;
or (ii) was the child’s home state in the past 6 months and the child is absent from the state, but one of the parents continues to live in the state.
A writ of Fieri Facias
writ of execution that directs the sheriff and commands him to sell the goods of the person against whom judgment has been rendered to pay the creditors.
* Money, bank notes, goods, chattel
* not intangible personal property
A circuit court judgment dated on or after July 1, 2021, is enforceable for ____ from the date of the judgment, but a circuit court judgment dated before July 1, 2021, is enforceable for ____ from the date of the judgment.
- 10 years
- 20 years
Enforcement of a GDC judgment is available for how long?
10 years from the date of judgment
When may a creditor retain the collateral for satisfaction of a debtor’s obligation?
- Has not paid at least 60% of the cash price in the case of a purchase money security interest.
Creditor must send consumer notice of retaining & consumer has 20 days to respond or the creditor may retain the collateral.
What happens when a settlor places excess money in a trust for an animal?
Not invalidated, excess is distributed in terms with the trust, or if trust is silent, in accord with statute.
Does Virginia recognize the validity of a trust to care for an animal?
Yes, but the animal(s) must be alive during settlor’s lifetime.
How does a person become a member of a manager-managed LLC?
If the majority of the managers of the LLC consent.
What is quantum meruit?
A claim for quantum meruit arises in Virginia when a party requests a service by another but does not provide adequate details of the express terms to create a contract.
When a quroum is present how many votes do you need to pass a resolution?
A majority of those present
How many do you need to constitute quorum?
A majority
In Virginia, a non-constitutional erroneous evidentiary ruling is harmless when …
the parties have had a fair trial on the merits and substantial justice has been reached.
For a breach of warranty action regardin the sale of goods, when does the SOL being to run?
The breach occurs when delivery is made, not when breach discovered.
Can a committee created by the board fix the terms of a distribution?
Yes, but they cant authorize a distribution.
In impeaching a witness who is a criminal defendant or a party in a civil case, Virginia generally allows …
only the fact of a felony conviction or a misdemeanor involving moral turpitude and the number of convictions, not the name and nature of the crime.
The trustee of a testamentary trust must qualify with the clerk of the circuit court or the court in order to serve as trustee. TRUE OR FALSE?
TRUE
What can you do if someone isn’t providing stuff for discovery?
Party seeking discovery may enter an order compelling discover
Must include certification party has conferred in good faith with other party in an attempt to resolve
Name three sanctions that a court may impose for failure to comply with a discovery order
(i) Treat an evasive answer as a failure to respond; (ii) deem matters admitted; (iii) bar the disobeying party from contesting the issue(s); (iv) strike pleadings; (v) hold the disobeying party in contempt (except for failure to submit to a mental or physical exam); (vi) dismiss an action and grant a default judgment; or (vii) order a disobeying party to pay the other party’s attorney’s fees and costs for litigating the motion to compel.
For which three equitable claims is there a right to a jury?
(1) Suits to establish, impeach, or probate a will
(2) Suits to quiet title to real estate
(3) A plea in equity (i.e., a plea in bar)
What are commissioners in chancery, and what is their role with respect to the circuit courts?
Circuit courts may appoint and refer equitable matters to a commissioner in chancery.
The commissioner is directed to hold evidentiary hearings, research the law involving the case, and report back to the court with recommended fact conclusions and advice as to the law.
The court is not bound by the commissioner’s findings, but the commissioner’s report on questions of fact is deemed prima facie correct and entitled to great weight.
Can a defendant appeal an order granting a nonsuit?
Yes, because it is a final order.
What are two bases for a court to grant a motion for judgment notwithstanding the verdict (JNOV)?
(1) A finding as to liability that is contrary to the evidence or the law
(2) A finding as to damages that is contrary to the evidence or the law
In General District Court, when must the initial suit papers for an unlawful detainer action be served?
At least 10 days before the first date that the case is on the docket
If a trust does not specify it is irrevocable, it is presumed to be…
revocable. While revocable, trustee may follow instructions of settlor even if they conflict with instructions.
