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149 Cards in this Set

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Agency - Subject Outline

Principals CORRAL Their agent's activities.
CREATION
OBLIGATIONS
RIGHTS
RATIFICATION
AUTHORITY
LIABILITY

TERMINATION
CREATION of agent/principal relationship

OBLIGATIONS – loyalty, obedience, stewardship

RIGHTS of parties

RATIFICATION by principal

AUTHORITY – express, implied, apparent

LIABILITY - primary & vicarious (respondeat superior)


TERMINATION of agent/principal relationship
Agency - Creation

Creating an agency relationship is as easy as ABCD.
ASSENT (usually requires mutuality)

BENEFIT conferred upon principal

CONTROL of agent by principal

DURING and within scope of agent's employment
Civil Procedure - Personal Jurisdiction acrostic

My Parents Frequently Forgot to Read Children's Stories
minimum contacts

purposeful availment

foreseeable defendant

fair play and substantial justice

relatedness of contact

convenience

state's interest
Civil Procedure - elements of Collateral Estoppel

if I PAWN something, I am precluded from taking issue if it gets sold.
IDENTICAL

PARTY
ACTUALLY
WAIVED
NECESSARY
IDENTICAL issue


PARTY to the first proceeding (BUT mutuality considered)

ACTUALLY litigated in first proceeding

WAIVED assertion rights by failing to litigate in prior proceeding (with full and fair opportunity)

NECESSARY to the outcome
Civil Procedure - Minimum Contacts, Fair Play & Substantial Justice

minimal contact with PELICANS does not make you Best Friends
PURPOSEFUL
EVIDENCE
LAW
INITIATION
CAUSE
ALTERNATIVE
NATURE
STATE'S

BURDEN
FORESEEABILITY
PURPOSEFUL availment - Hanson v. Denckla

EVIDENCE – location of witnesses and evidence

LAW - choice of law (forum shopping?)

INITIATION - did D initiate contact with forum state?

CAUSE of action - where did cause of action arise?

ALTERNATIVE forum available? fair & convenient?

NATURE & quality of activities - systematic vs. sporadic, direct vs. indirect, dangerous activity?

STATE's interest in providing a forum for its residents and protecting health & safety concerns


BURDEN of parties - economic cost, risk of multiplicity of suits, relative burden on defendant

FORESEEABILITY - WW Volkswagen (likely they'd be “haled into court”)
Civil Procedure - Challenging The Complaint

Defendant PICT VALID reasons to challenge the complaint.
PLEADINGS
INSUFFICIENCY
CLAIM
TRIABLE

VENUE
ALLEGATIONS
LACK
INDISPENSABLE
DEFINITE
motion for judgment on the PLEADINGS

INSUFFICIENCY of process (motion to dismiss)

failure to state a CLAIM (motion to dismiss)

no TRIABLE issue of material fact exists as a matter of law (motion for summary judgment)


improper VENUE (motion to transfer)

ALLEGATIONS that are irrelevant, impertinent, scandalous (motion to strike)

LACK of jurisdiction over subject matter or person (motion to dismiss)

failure to join INDISPENSABLE party (motion to dismiss)

motion for more DEFINITE statement of claim against defendant
Civil Procedure - Requirements for Certification of Class Action

DECANT vintage 23(b) before you pour it into a class.
DEFINABLE
ECONOMY
COMMONALITY
ADEQUACY
NUMEROSITY
TYPICALITY

23(b)
roughly DEFINABLE class of which P is a member

judicial ECONOMY served

claims have COMMON legal theory or arise out of same transaction or occurrence

named parties must ADEQUATELY represent class

potential Ps too NUMEROUS for joinder

claim of named P must be TYPICAL of the class

23 B - action must fall within one of three categories of FRCP 23 (b)
Civil Procedure - Discovery Devices

DADIES discover what you don't want them to know.
DEPOSITIONS
ADMISSIONS
DOCUMENTS
INTERROGATORIES
EXAMINATIONS
SUBPOENAS
depositions (written or oral)

admissions of facts

documents related to cause of action (if for good cause)

interrogatories

examination (mental or physical)

subpoena (duces tecum)
Civil Procedure - basic jurisdictional requirements

The due process clause requires you to MOP up before jurisdiction can be asserted
MINIMUM contacts
OPPORTUNITY
PROPER service
minimum contact with the state

opportunity for defendant to be heard

proper service of process upon defendant
Civil Procedure - jurisdiction over corporations

To obtain independent personal jurisdiction over defendant corporation, DIAL DC
DOMICILIARY
IN-STATE service
AGENT
LONG-ARM

DOING business
CONSENT
defendant is a domiciliary

in-state service on a non-domiciliary

agent of corporation served (must be designated)

long-arm jurisdiction over non-domiciliary

doing business in-state

consent to state's jurisdiction by defendant
Civil Procedure - long-arm jurisdiction over tortious conduct

long-arm jurisdiction extends to non-resident tortious DEER
DERIVES revenue
ENGAGES in conduct
EXPECTS consequences
REGULARLY solicits
derives substantial revenues from goods used/consumed or services rendered in-state

engages in persistent course of conduct in-state

expects (or reasonably should expect) that tortious acts would have consequences in-state AND defendant derives substantial revenues from interstate/int'l business

regularly solicits in-state business
Civil Procedure - jurisdiction over matrimonial action

When DADA doesn't live in-state, mama can still seek maintenance and child support
DOMICILE
ABANDONMENT
DECREE
separation AGREEMENT
state was most recent marital DOMICILE of parties

ABANDONMENT took place in-state

claim for support accrued under state DECREE or law

parties executed a separation AGREEMENT in-state
Civil Procedure - Consent To Jurisdiction

That lawyer SCAMS defendants into consenting to jurisdiction.
STIPULATE
CAUSE
ANSWER
MOTION
SUMMARY
STIPULATE in open court, pleading, contract or letter

assert unrelated CAUSE of action in answer

serve an ANSWER that fails to raise JX objection or claiming improper service while failing to move for summary judgment

MOTION to dismiss that fails to raise JX objection

motion for SUMMARY judgment on related cause of action (seeking affirmative relief in-state)
Civil Procedure - sufficiency of Service of Process

MIC is SAD because he was properly served with process.
MAILING
IN-HAND
COURT


SUITABLE
AGENT
DILIGENCe
MAILING process to defendant who must then consent to such service

IN-HAND personal delivery to the named defendant

COURT authorized method of service of process

delivered to person of SUITABLE age & discretion at last known address (then mail copy & file)

AGENT service

due DILIGENCE (nail, mail & file)
Civil Procedure - Service on Corporations

DOGMA dictates who to serve process on a corporation.
DIRECTOR

OFFICER

GENERAL Agent (e.g. cashier)

MANAGEMENT

AGENT authorized by corporation, whether expressly, impliedly or by estoppel
Civil Procedure - Motion To Vacate Default Judgement

It takes 1 REAM of paper to get a default judgment vacated.
1 year to file motion

REASONABLE EXCUSE for default

AFFIDAVIT of MERIT setting forth meritorious defense to plaintiff's claim that shows how plaintiff won't be unreasonably prejudiced by re-opening the case
Civil Procedure - Joinder of Parties on the basis of Vicarious Liability

A POPE is held liable for the acts of others.
AGENT


PRINCIPAL

OWNER of property

PARTNER

EMPLOYEE
Civil Procedure - claims not barred by tolling under Statute of Limitations

The claim WAS time-barred but plaintiff LOPED into court anyway.
WRITTEN
AMENDMENT
SOLDIER/SAILOR

LENGTHEN
OBTAINING
PAYMENT
EQUITABLE
DISABILITY/DEATH
WRITTEN acknowledgment by defendant of a time-barred valid debt

AMENDMENT of pleading to add a time-barred claim

SOLDIER and SAILOR relief act


parties agree to LENGTHEN the timeframe

OBTAINING personal jurisdiction over an out-of-state defendant who would not consent to service of process

partial PAYMENT by defendant of a time-barred valid debt

EQUITABLE estoppel

DISABILITY or DEATH of plaintiff
Civil Procedure - reasons to grant Motion to Dismiss

In SIDEBAR, Plaintiff Finally admitted the claim should be dismissed.
SoF
INFANCY/INCOMPETENCY
DISCHARGED
ESTOPPEL
BARRED
ARBITRATION
RELEASE

PAYMENT

FAILURE to state a claim
STATUTE of Frauds

INFANCY or incompetency

subject matter of claim DISCHARGED in bankruptcy proceeding

ESTOPPEL (collateral estoppel or res judicata)

claim BARRED by statute of limitations

ARBITRATION and award

RELEASE from claim by plaintiff

PAYMENT by defendant

FAILURE to state a claim upon which relief can be granted
Civil Procedure - Provisional Remedies

When a LIAR tells a LIE, the COP will FIND CJ because he's a SLOB.
LIAR - the four provisional remedies

LIE - reasons to grant preliminary injunction

COP - procedural requirements

FIND CJ - extraordinary circumstances needed to get order of attachment

SLOB - lis pendens requirements
LIAR:
LIS pendens
preliminary INJUNCTION
order of ATTACHMENT
appointment of RECEIVER (harsh, requires bond)

LIE:
LIKELIHOOD of plaintiff's success
IRREPARABLE injury ($ does not suffice)
EQUITABLE balance of hardships

COP:
CLEAR & CONVINCING evidence of extraordinary circumstances and that plaintiff will succeed
ORDER must be entered to be enforceable
POST-seizure hearing required immediately afterwards if order was entered ex-parte

FIND CJ:
FOREIGN corporation
INTENT to defraud creditors or frustrate enforcement of judgment
NON-DOMICILIARY defendant
DILIGENT efforts are not enough to serve domiciliary or resident
CRIME victims are entitled to order of attachment when suing felon (Son of Sam law)
cause of action is based upon default JUDGMENT from another jurisdiction that is entitled to full faith & credit

SLOB:
SHERIFF is not involved
LIKELIHOOD of plaintiff's success not considered by court
ORDER by court not required
BOND does not need to be posted
Civil Procedure - considerations of court in assigning Joint & Several Liability

The judge uses WHIP And ROD to assign joint & several liability.
WORKER'S
HAZARDOUS
INTENTIONAL
PROPERTY

AUTOMOBILE

RECKLESS
OVER 50%
DEATH
WORKER'S compensation claims where employer is impleaded by defendant

release of HAZARDOUS substance that results in harm to plaintiff

INTENTIONAL tortfeasors remain 100% liable

PROPERTY damage

injuries caused by use, ownership or operation of AUTOMOBILE

RECKLESS (grossly negligent) conduct causing injury

OVER 50% responsible for plaintiff's injury

wrongful DEATH judgments involving economic injuries
Civil Procedure - Venue

Venue is chosen with TLC, but if WASP MEN are on your land, you have to file locally.
TLC - types of action that determine venue

WASP MEN - claims involving property rights generally must be filed locally
TLC:
TRANSITORY action
LOCAL action
action to recover CHATTEL (replevin)

WASP MEN:
action for tort of WASTE
ACTION involving leasehold
SPECIFIC performance sought in real estate contract
PARTITION of concurrent estates
MORTGAGE foreclosure
EJECTMENT action
NUISANCE action
Civil Procedure - Discovery Devices

the MAID must get PAID to discover evidence
MENTAL
ADMISSIONS
INTERROGATORIES
DEPOSITIONS

PHYSICAL
ADDRESSES
INSPECTION
DISCOVERY not held
MENTAL exam

request for ADMISSIONS

written INTERROGATORIES

DEPOSITIONS (aka "examination before trial")

PHYSICAL exam

demand for ADDRESSES

INSPECTION of evidence

DISCOVERY request for relevant evidence held by opposing party
Civil Procedure - Objections To Method of Inquisition

Poorly phrased questions set off the BAC door ALARM.
BROAD
AMBIGUOUS
COMPOUND

ARGUMENTATIVE
LEADING
ASSUMING
REDUNDANT
MISQUOTE
overly BROAD question

AMBIGUOUS question

COMPOUND question


ARGUMENTATIVE badgering of witness

LEADING question on direct exam

ASSUMING fact not in evidence as part of question

REDUNDANT question requiring cumulative response

MISQUOTING prior statement by witness
Civil Procedure - Sanctions during Discovery

This Judge DRIPS hot wax as a sanction for misbehavior.
JUDGMENT
DISMISSAL
RESOLUTION
IMPOSITION
PRECLUSION
STRIKE
order default JUDGMENT against defendant

DISMISS action in favor of defendant

force non-disclosing party to RESOLVE the issue causing non-disclosure

IMPOSE attorney fees, costs of suit and fines

PRECLUDE non-disclosing party from introducing related evidence

STRIKE non-disclosing party's pleadings related to issues of non-discovery
Civil Procedure
Reasons Why An Arbitration Award May Be Vacated

The arbitrator was BLAMED so his judgment was vacated.
BIAS
LACKED
ARTICLES
MISCONDUCT
EXCEEDED
DEMAND
BIAS of arbitrator

award LACKED rational basis

procedure violated ARTICLES of governing statute

MISCONDUCT, fraud or corruption

arbitrator EXCEEDED scope of authority or issued opinion contrary to public policy

DEMAND OF ARBITRATION was not properly served so losing party did not get to participate
Commercial Paper

Elements of Negotiability
Rights of Holder in Due Course

WOSSUPP! if WE FUC, you'll get DAFFIDILS.
WOSSUP - elements that make an instrument negotiable

WE FUC - an HDC takes instrument free of all claims and personal defenses

DAFFIDILS - an HDC takes instrument subject to real defenses
WOSSUP:
in WRITING (statute of frauds)
payable to ORDER of or to bearer (negotiable words)
SIGNED by the maker or drawer
SUM is certain (principal only - amount of interest flexible)
UNCONDITIONAL promise with no other promises attached
PAYABLE on demand or at a definite time
PAYABLE in sovereign currency only

WE FUC:
WAIVER
ESTOPPEL
FRAUD in inducement (impostor)
UNCONSCIONABILITY
CONSIDERATION lacking (for the note)

DAFFIDILS:
DURESS - threat of violence (not economic duress)
material ALTERATION of instrument
FORGERY
Fraud in the FACTUM (signor did not know it was a negotiable instrument)
ILLEGALITY
DISCHARGE in bankruptcy of maker or drawer
INFANCY of maker or drawer
LACK of mental capacity
STATUTE of limitations has expired on the debt
Constitutional Law - Limitations on Judicial Power

a federal judge cannot SMAC or RAPE.
STANDING

MOOTNESS

ABSTENTION for independent state grounds

Case in CONTROVERSY

RIPENESS

ADVISORY opinion

POLITICAL questions (republican form of government)

ELEVENTH Amendment
Constitutional Law - Limitations on Legislative Power

As your congressman, I SWAP CAPITAL for DEFICIT.
INSOLVENCY (Bankruptcy) - shared with states


SPENDING (for general welfare)

WAR declaration - raise/support military, legislate wartime economic/social conditions

AFFAIRS related to Foreign commerce

PROPERTY - rules & regulations on federal lands, including police power in DC


COMMERCE - interstate

ALIENS, naturalization, citizenship

POSTAL Service (limited by 1st & 4th Am.)

INVESTIGATION of facts related to subjects over which Congress may legislate

TAXING to Raise Revenue (general welfare)

ADMIRALTY - navigable waterways

LEGISLATE!!! (rather than execute or adjudicate the law)

(for)

DELEGATION of legislative authority (Chadha limitation on Pres veto power & bicameral structure)

ELECTIONS

FINANCE - necessary/proper to coin $; create banks, fed reserve, credit system

set INFERIOR federal court jurisdictional limits

CIVIL rights enforcement (13th, 14th, 15th Am.)

INTELLECTUAL Property - patent & copyright

TREATY ratification
Constitutional Law - Presidential Power

The president can eat at PF chang's with one CAVEAT.
PARDON
FOREIGN

COMMANDER
APPOINTMENT
VETO
EXECUTIVE
ADVISE
TREATY
PARDON convicted federal criminals

FOREIGN Affairs


COMMANDER in chief of the armed forces

APPOINTMENT of ambassadors, federal judges and superior officers

VETO power over acts of congress

EXECUTIVE agreements and privileges

ADVISE congress on state of the union in special session

TREATY power
Constitutional Law
Limits to Exercise of Power by Government


You must SPECIFICLE state how the government violated your constitutional rights.
SUBSTANTIVE DP
PROCEDURAL DP
EPC
CIVIL rights
IMMUNITIES
FIRST AMENDMENT
IRREBUTTABLE presumptions
CONTRACTS
retroactive LEGISLATION
ECONOMIC taking
Substantive due process

Procedural due process

Equal protection

Civil rights

Immunities granted to all citizens with regard to livelihood, employment, transfer of property, federally protected interests

First amendment

Irrebuttable presumptions of fact regarding constitutionally protected rights

Contracts clause

Legislation that is retroactive

Economic taking w/o just compensation
Constitutional Law
Due process - Fundamental Liberties

Courts strictly scrutinize government action involving a STAR VP CAMPER.
STAR VP - six fundamental freedoms

CAMPER - privacy rights
STAR VP:
freedom of SPEECH
right to TRAVEL
freedom of ASSOCIATION
freedom of RELIGION
right to VOTE
right to PRIVACY

CAMPER:
Contraception
Abortion ("undue influence" branches w/intermediate scrutiny)
Marriage (including dissolution)
Procreation
Education of children outside public schools
Related persons' right to live together
Constitutional Law - Takings
Valid Public Purpose
5th Am. - Fed / 14th Am. - State/Local

SHE validly took the SWAMP by eminent domain.
Safety

Health

Economic

Social

Welfare

Aesthetic

Moral ends

Political
Constitutional Law - Equal Protection
Strict Scrutiny Suspect Classes

The government RAN out of class when the judge strictly scrutinized its behavior.
RACE - purposeful discrimination required (facially or as applied)

ALIENAGE - state/local action only (except regulation of participation in government, e.g. teachers, police, jury duty subject to rational basis test); fed action gets rational basis test)

NATIONAL origin
Constitutional Law - Preemption by Federal Law

Federal law can PUSH around state law.
PERVASIVENESS

UNIFORMITY of federal regulatory scheme

SIMILARITY between laws

not HISTORICALLY left to State
Constitutional Law - Dormant Commerce Clause
(limitation on state action)

Nonresident Statutes Are Rude.
NONDISCRIMINATORY
SUBSTANTIAL nexus
APPORTIONED
RELATEDNESS
SUBSTANTIAL nexus between state interest and burden on non-resident

NONDISCRIMINATORY intent, construction and application

APPORTIONED between residents and non-residents that reflects fundamental fairness

RELATED to State services or resources
Constitutional Law - Obscenity

The porn on Miller's LAPTOP is not obscene in the privacy of his home unless it includes kiddie porn.
Miller v. California

LAPTOP
LACKS literary, artistic, political or scientific value

AVERAGE person, applying contemporary community standards

appeals to the PRURIENT interest in sex

TAKEN as a whole

patently OFFENSIVE depiction of sexual conduct

POSSESSION of obscenity in privacy of home OK but child pornography can be entirely prohibited
Constitutional Law
Unavailability of Privileges & Immunities claims

if U don't give a CRAP, you can't claim privileges & immunities.
UNITED STATES government


CORPORATIONS

RESIDENTS of the state whose law is being challenged

ALIENS

PARTNERSHIPS
Constitutional Law - Limitation on State Action
(14th & 15th Am.)

the State's PLEA fell on deaf ears
SHELLEY V. KRAMER

PUBLIC functions
LICENSING
ENCOURAGMENT
AID
SHELLEY v. Kramer - "The 14th Amendment erects no shield against merely private conduct, however discriminatory or wrongful."

PUBLIC functions - cities, counties, state institutions, officials acting in official capacity

LICENSING - granting monopolies and heavy regulation is NOT state action

ENCOURAGEMENT (or facilitation or authorization) of discrimination by citizens

AID - excessive state financial entanglement
Constitutional Law - Establishment Clause Violations

Church and state can't PEE in the same urinal.
PURPOSE. Law or conduct must have a primarily secular purpose

EFFECT. Primary or inevitable effect of law or conduct must neither advance nor inhibit nor endorse religion.

ENTANGLEMENT. Law or conduct can't foster excessive governmental administration or entanglement with religion
Contracts - Subject Acrostic

covers Common Law & UCC Sales

Forty Drunk Pirates Drank Beer Then Ran
Formation

Defenses to contract formation

Performance

Discharge of duty to perform

Breach - effects
material - recover foreseeable damages or rescind/mitigate;
minor - perform & recover damages for immaterial breach

Third Party Beneficiaries, Assignment & Delegation

Remedies for breach
Contracts - Common Law
Essential Contract Terms
Q-TIPS
Quantity

Time of performance

Identification of parties

Price

Subject matter
Contracts - Applicability of Statute of Frauds

a fake ORGASM violates the statute of frauds
ONE year
REAL estate
GOODS >$500
ADMINISTRATOR
SURETY
MARRIAGe
One year or longer

Real estate

Goods over $500 or intangibles over $5000

Administrator / executor of estate promising to cover costs

Surety agreements (guarantees on behalf of another, unless purpose is self-serving)

Marriage agreements (prenupitals)
Contracts
Exceptions to Statute of Frauds

No writing necessary if the deal is made in a SWAMP.
SPECIALLY Mfg
WAIVER
ADMISSION
MERCHANT MEMO
PARTIAL performance
SPECIALLY manufactured goods (production must have begun)

WAIVER

judicial ADMISSION that contract is valid

MERCHANT memo - UCC.
Add'l terms are part of deal unless
acceptance materially alters terms of offer
objected to in writing within 10 days from receipt
offer expressly restricted acceptance on terms

PART performance
goods already delivered
payment already received/accepted
Contracts - Elements of Legal Relationship

a TACO has all the ingredients to make a contract.
TERMS
ACCEPTANCE
CONSIDERATION
OFFER
definite TERMS, express or implied

ACCEPTANCE of terms

CONSIDERATION - bargained for legal detriment and/or benefit flowing

OFFER inviting acceptance
Contracts - Termination of Offer

Don't offer IDLE CIDER that's expired.
INCAPACITY
DEATH
LAPSE
EXPRESS rejection

COUNTEROFFER
ILLEGALITY
DESTRUCTION
EFFECTIVE mailbox
REVOCATION
Incapacity of offeror

Death of offeror

Lapse of time

Express or implied rejection

Counteroffer

Intervening illegality

Destruction of contract’s subject matter

Effective termination under mailbox rule

Revocation communicated to offeror before acceptance effective
Contracts - Termination of Options

three ways options can DIE
DESTRUCTION of subject matter of option

INTERVENING illegality

EXPIRATION of stated option time
Contracts - Defenses to Formation

IF (I) C SCUM, this contract never happened.
IF (I) C SCUM = equity of rescission

ILLEGALITY

FRAUD - in inducement or execution

(I) love contracts

COERCION - lack of consent or duress

STATUTE of frauds

CAPACITY - minors, mental

UNCONSCIONABLE k - gross disparity, against public policy

MISTAKE - generally only allowed with mutually grave error while contract is still executory
Contracts - Parol Evidence Rule

DECAF Includes parol evidence but a FOAM LID keeps the contract from forming.
DECAF I - elements of parol evidence rule

FOAM LID - parol evidence that will serve as a defense to formation
reveal DEFENSE to contract formation
EXISTENCE of a condition
CONTRADICTS, varies or adds to integrated writing
clarify ADDITIONAL terms (UCC)
FINAL writing intended but not accomplished

INTRODUCE consistent collateral subordinate agreement that would not normally be included in an integrated writing

FRAUD
ORAL condition precedent
AMBIGUITY
MISTAKE

LACK of consideration
ILLEGALITY
DURESS
Contracts - Discharge of Duty to Perform

IF A NIMROD is discharged of his duty to perform, so are you.
IMPRACTICABILITY
FRUSTRATION of purpose

ACCORD and satisfaction

NOVATION
IMPOSSIBILITY
MODIFICATION
RESCISSION (mutual)
OCCURRENCE of condition subsequent
DEFENSE to formation
Contracts
Excuse of Conditions &
Discharge of Duty to Perform

WIVES PAD their pockets with excuses to get out of contracts.
WIVES PAD

these conditions excuse performance
Waiver (knowingly accepted defective performance)

Impossibility (objective - nobody could perform)

Voluntary disablement (implied repudiation)

Estoppel (other party says don't perform)

Subsequent agreement of parties (mutual rescission, modification, novation, substitution)

Prevention of performance (intentional or negligent hindrance)

Anticipatory repudiation (present, absolute, unequivocal renunciation of obligation)

Divisibility of contract duties
Contracts - Formation by Quasi-Contract

I painted your CURB so you owe me.
CONTRACT implied in FACT or at LAW

UNJUST enrichment if defendant allowed to keep benefit without legal detriment

REASONABLE expectation of being compensated

BENEFIT conferred upon defendant by express request or implied permission
Contracts - UCC Article 2
Material Alteration of Offer

A merchant that WARPS my offer with his reply memo makes me Just Livid.
WARRANTY
ARBITRATION
RISK of loss
PAYMENT
SHORTENING SoL

JURISDICTION

LIABILITY waiver
WARRANTY negation such as merchantability or fitness

ARBITRATION requirement added (unless customary practice in trade)

RISK of loss shifted, adjusted or altered

PAYMENT terms and amount changed

SHORTENING Statute of Limitations to sue for non-conforming goods

JURISDICTION clause bestowing or changing laws covering K

LIABILITY waiver or limitation (in tort or contract)
Contracts - UCC Article 2
Implied Terms in Sales Contracts

I CITE the UCC to prove implied terms.
INSPECTION


CREDIT
INSURANCE
TENDER
EXCHANGE

UNIFORM COMMERCIAL CODE
INSPECTION. Buyer usually has a right to inspect tendered goods before acceptance.

CREDIT. Seller is not obligated to extend credit to buyer.

INSURANCE. Risk of loss falls on party in best position to bear loss (usually the one who protected goods by insuring them).

TENDER of delivery is implied at Seller's place of business.

EXCHANGE of performance is usually concurrent.


UNIFORM COMMERCIAL CODE
Contracts - UCC Article 2
Seller's Remedies for Buyer's Breach

When the buyer is a K LAPSER, seller has remedies.
KEEP deposit

LOST profit
ASSURANCES
PRICE
STOP goods
EXERCISE reclamation
RESELL
KEEP deposit if under $500

sue for LOST profit (if "unlimited supply" available)

demand ASSURANCES if insolvency/incapability is evident


sue for entire contract PRICE

STOP goods in transit.

EXERCISE right to reclaim goods delivered to insolvent buyer

RESELL goods to another buyer
Contracts - UCC Article 2
Buyers Remedies for Seller's Breach

a buyer Can Revoke Security or WAIT when seller breaches.
CANCEL

REVOKE

SECURITY

WITHHOLD $
ACCEPT & recover
$ INADEQUATE = demand
TENDER & claim
CANCEL the contract, purchase from another, recover damages.

REVOKE contract if substantial breach where acceptance induced by reasonable expectation of prompt cure or latent (undetectable) defect

withhold non-conforming goods as SECURITY for damages.

WITHHOLD amount equal to damages (notice to seller required)
ACCEPT non-conforming goods at k price, recover consequential & incidental damages
if money damages are INADEQUATE, buyer can demand goods.
TENDER balance due & claim goods if buyer has partially paid
Contracts - UCC Article 2
Warranties

warranties are Fully TEAMED with goods sold.
FITNESS

TITLE
ENCUMBRANCES
AFFIRMATIONS
MERCHANTABILITY
EXPRESS warranties
as DESCRIBED
FITNESS for a particular purpose


seller's warranty of TITLE

EXPRESS warranties written into contract

AFFIRMATION of fact or promise made by seller relating to goods (written or oral)

MERCHANTABILITY

warranty against ENCUMBRANCES

DESCRIPTION of goods in advertisement, brochure or catalog
Contracts - UCC Article 2
Defenses to Breach of Warranty

GRAMPA can't be liable for breach of warranty.
Government
Running SoL
Absence
Misuse
Preemption
Assumption
GOVERNMENT military & surplus contracts

RUNNING of statute of limitations

ABSENCE of privity of contract

unforeseen MISUSE of a product

federal PREEMPTION

ASSUMPTION of risk
Corporations - Piercing The Corporate Veil

TWIST the knife to pierce the corporate veil.
TEN sh
WORKER's comp
ILLEGALITY
SALES/corp tax unpaid
TORTIOUS acts
TEN largest shareholders of private company are personally liable for unpaid wages/benefits

WORKER's compensation insurance must be obtained. If not, officers are criminally, strictly liable to injured employee.

ILLEGAL conduct by shareholders.

SALES or corporate income tax not paid renders directors & officers (D&O) responsible to taxing authority.

TORTIOUS conduct of D&O, employees and shareholders cannot use corporate veil to hide from personal liability.
Corporations - Contents of Articles of Incorporation.

It's A PAIN to write the articles of incorporation.
AUTHORIZED shares

PURPOSE

AGENT authorized to receive service of process

INCORPORATORS

NAME and address of corporation
Corporations - Contents of Certificate of Incorporation

the corporation's certificate of incorporation lists PVT MCLAW
PREEMPTIVE rights
VALUE of par
TRANSFER restrictions

MAJORITY
CUMULATIVE voting
LESS than maj to dissolve
sh AGREEMENTS
at WILL
PREEMPTIVE rights

VALUE of par shares (if to be fixed by shareholders rather than directors)

stock TRANSFER restrictions

MAXI-MAJORITY, super-majority, quorum voting requirements

CUMULATIVE voting rights when electing directors

whether LESS than majority of shares can vote to voluntarily dissolve corporation

shareholder AGREEMENTS regarding actions authorized without SH meetings, restrictions on D&O powers, or if SH can directly manage company (no BoD)

corporate dissolution at WILL or upon specific event
Corporations
Actions Requiring Shareholder Approval

Shareholders deserve A DAMN SALAD if the corporation makes a big change.
AMENDMENT

DISSOLUTION
ASSET
MERGER
NAME

SURETY
AGENT
LOCATION
ABOLISHING liability
DIRECTOR loans
AMENDMENT of certificate of incorporation that changes quorum, maxi/super majority, preemptive or cumulative voting rights, and/or corporate purpose

DISSOLUTION (voluntary)

ASSET sale, lease or exchange (>75% of assets)

MERGER or consolidation

NAME change

SURETY interests in debt not acquired for corporate purposes

change of AGENT for service of process

change of LOCATION of corporate office

ABOLISHING or limiting directors’ liability for negligence

DIRECTOR loans
Corporations - Appraisal Rights of Shareholders

if PAM C dissents, she gets appraisal rights.
PREEMPTIVE
ASSET
MERGER

CUMULATIVE
PREEMPTIVE, redemptive or other share of ownership rights affected

ASSET sale, lease or exchange (>75% of corp assets)

MERGER or consolidation into another entity

CUMULATIVE voting rights affected
Corporations - Appraisal Right Valuation

The court will AIM for fair value in determining appraisal rights.
ASSET
INVESTMENT
MARKET
net ASSET value - where company holds substantial tangible assets (e.g. real estate investment holding co's, retail and wholesale co's)

INVESTMENT value - earning power of corporate stock

MARKET value of stock (court considers arms-length similar sales in same community or marketplace)
Corporations - Duties of Directors & Officers

Directors & Officers who get SUED For being OLD can fire a FLARE.
SUED - types of conflict of interest

FOLD - usurpation of corporate opportunity tests

FLARE - defenses to usurping corporate opportunity
SELF-dealing
USURPATION
EXECUTIVE compensation unreasonable
DIRECT conflict of interest

FITNESS & fairness of transaction
OPPORTUNITY was available to corporation
LINE of business was same as corporation's
DISCLOSURE was not proper

FINANCIAL incapacity of corporation to enter K
LEGAL incapacity of corporation to enter K
ABANDONED (purposeful failure to deal)
REJECTED (purposefully declining to transact)
EXPLICIT approval by uninterested BoD or SH
Corporations -
Actions of Directors that cannot be indemnified

Directors can't be indemnified for RIBALD Gains.
REDEMPTION
INTENTIONAL misconduct
BAD faith
ASSETS before creditors
improper LOAN
DIVIDEND

unjust GAIN
REDEMPTION of shares when not permitted (no surplus)

INTENTIONAL misconduct or knowing violation of law

BAD faith conduct

ASSETS distributed to shareholders before paying creditors

LOAN granted improperly to fellow director without dissent

declaration of improper DIVIDEND (no surplus)


GAINS personally derived due to misconduct
Corporations - Shares With No Preemptive Rights

If your shares have a STAMP, you don't have preemptive rights.
STOCK INCENTIVES
TREASURY
AUTHORIZED w/in 2 yrs
MERGER
PURCHASE w/o cash
STOCK incentives used to retain and attract corporate talent

TREASURY stock

AUTHORIZED in certificate of incorporation and sold within 1st 2 years (no preemptive rights for 2 years)

MERGER or consolidation caused shares to be created

PURCHASE of shares occurred without cash
Corporations - Irrevocable Proxy Voting Rights

You can't revoke a proxy for PEACE.
if PLEDGED
not ENTITLED
AGREEMENT by sh
CREDITOR
EMPLOYEE w/proxy
PLEDGED shares (for loan)

ENTITLEMENT to vote is not vested on record date (bought/sold too early/late)

AGREEMENT executed for specified period between shareholders

CREDITOR holding shares as collateral for extending credit

EMPLOYEE owned shares issued with specified proxy requirements
Corporations - Elements of 10b-5
Stock Transfer Liability

In the MIDST of the STORM, it feels like a category 10b-5.
MATERIAL fact
INTERSTATE
DAMAGES
STANDING
TIPPER/TIPPEE

SCIENTER
TARGETED sh
OMISSION
RELIANCE
MISSTATEMENT
MATERIAL fact – is the information important?

INSTRUMENTALITY of interstate commerce used in connection with transaction (mail)

DAMAGES – civil, regulatory, criminal
Civil: expectation damages or rescission
Regulatory: SEC can impose treble damages (triple profits) and order injunction
Criminal: Federal DOJ can impose criminal fines and imprisonment

STANDING – purchaser/seller who purchased/sold stock in connection with alleged fraud

TIP liability – inside tip given for improper purpose where tipper breached duty and tippee knew of the breach

SCIENTER – defendant had actual knowledge of material misrepresentation regarding material information

TARGETED persons who are already shareholders have standing to sue even if they didn’t buy/sell shares in conjunction with 10b-5 violation

OMISSION or failure to disclose material fact by fiduciary will be treated similarly by the court as material misrepresentation

RELIANCE on misrepresentation resulted in purchase or sale (exception: non-disclosure cases do not require reliance)

MISSTATEMENT of material fact will be treated similarly by the court as material misrepresentation
Corporations - Liability Under Sarbanes-Oxley

Get the BAD TIC out of your SOx.
BANNED loans
ATTORNEY liability
DISCLOSE ethics req.

TRADING limits
INDEPENDENT auditing
CERTIFICATION of internal controls

SARBANES

OXley
BAN on loans to offficers/directors of large public companies

ATTORNEY liability attaches if aware of illegal transactions

DISCLOSURE of ethics requirements must be made to all persons with authority to transact

TRADING limitations cannot be exceeded or circumvented

INDEPENDENT directors or firms must be appointed to audit records in question

CERTIFICATION of internal controls required, with CEO & BoD on the hook for failure to comply.

Sarbanes-OXley
Corporations
Valid Reasons For Judicial or Voluntary Dissolution

To dissolve a corporation, just I.D. the WOLF in the boardroom.
ILLEGAL conduct

DIVERSION of corporate assets to directors/officers

WASTE (including that which results from deadlock)

OPPRESSION of minority shareholders

LOOTING

FRAUD
Criminal Law - Crimes Requiring Specific Intent

It's a specific intent crime to Purposely FLAME CRABS.
false PRETENSES

Forgery
Larceny
Attempt
Murder, first degree
Embezzlement

Conspiracy
Robbery
Assault
Battery (aggravated)
Solicitation
Criminal Law - Crimes Requiring General Intent

It's a general intent crime for MARK to FIB.
Murder in the commission of a dangerous, statutorily enumerated felony
Arson
Rape
Kidnapping

False imprisonment
Involuntary manslaughter
Battery
Criminal Law - Defenses Available

the prosecutor PACED as his charges against defendant fell like DOMINOS
defense of PROPERTY

AGE (7 to 13 = rebuttable presumption that child doesn't understand)

prevention of CRIME constituting breach of peace (non-deadly) or risking human life (deadly)

ENTRAPMENT

DURESS (mitigates murder to manslaughter)


DRUNKENNESS

OTHER party consented to act

MISTAKE of fact

INSANITY

NECESSITY - avoid a greater evil

defense of OTHERS

SELF-DEFENSE
Criminal Law - When Omission To Act Is A Crime

You can't just watch them SCRAP when you've got a legal duty to break it up.
STATUTORY duty (filing taxes)

CONTRACT (nurse, lifeguard)

RELATIONSHIP (parent, spouse)

ASSUMPTION of duty voluntarily (rescuer liability)

PERIL (caused risk of harm)
Criminal Law - Defense To Felony Murder

the BUC stops at the co-felon
no reason to BELIEVE co-felon was armed or intended to engage in conduct likely to result in death

UNARMED; and

didn't COMMIT, command or request homicide;
Criminal Law - Strict Liability Crimes

If you pick a SCAB, you're strictly liable as a criminal.
STATUTORY
CONTRIBUTING
ABNORMALLY
BIGAMY
STATUTORY rape

CONTRIBUTING to the delinquency of a minor

ABNORMALLY dangerous activities

BIGAMY
Criminal Procedure
Exceptions to Search Warrant Requirement

SHAPE up WISEACRE or I'll search you without a warrant.
STOP (articulable, reasonable suspicion) & frisk (armed & dangerous) of outer clothing

HOT pursuit

AUTOMOBILE

PLAIN view

EVANESCENT evidence

(up)

WIRETAP w/ one party’s consent

INCIDENT to lawful arrest

SCHOOL property

EXIGENT circumstances

ADMINISTRATIVE searches (e.g. Border, Airport)

CONSENT to search expressly granted

ROUTINE, non-discriminatory checkpoint stops

EAVESDROPPING on conversation with no reasonable expectation of privacy
Criminal Procedure
Exceptions to the Exclusionary Rule

U SAID G was fruit of the poisonous tree but he's not.
USE for impeachment

independent SOURCE

ATTENUATED chain of causation between tainted evidence and illegal action

INTERVENING act of free will

inevitable DISCOVERY

GOOD faith of police & magistrate in issuing invalid warrant
Evidence - Subject Outline Mnemonic

Follow RECIP(e) H to decide if the evidence is admissible.
Relevance

Extrinsic policies

Character evidence

Impeachment

Privileges

(e)

HEARSAY
Evidence - Rule 403
Exclusion of Relevant Evidence

the UMP doesn't have to let the evidence IN
UNDUE delay

MISLEAD the jury

PREJUDICIAL effect on jury

confusion of ISSUES

NEEDLESS presentation of cumulative evidence
Evidence - Inadmissible Relevant Evidence

I like PORN but it's still inadmissible.
INSURANCE proving fault

PRIVILEGED communication
OFFERS of compromise
REMEDIAL measures
NEGOTIATION during plea
INSURANCE introduced to prove fault or deep pockets

PRIVILEGED evidence

OFFERS of compromise or settlement (except in conjunction with offer to pay medical expenses)

subsequent REMEDIAL repairs

NEGOTIATED admissions made by criminal defendant during unsuccessful plea bargaining
Evidence - Self-Authenticating Documents

OIL CANS are self-authenticating.
OFFICIAL
INSTRUMENTS
LABEL

CERTIFIED
ACKNOWLEDGED
NEWSPAPERS
SEALED
OFFICIAL publications issued by public authority

INSTRUMENTS - negotiable and commercial paper

LABEL, tag or trademark affixed on item in regular course of business

CERTIFIED public documents (by clerk of agency or court that had custody)

ACKNOWLEDGED documents signed before notary, swore to truth, content and execution (except wills)

NEWSPAPERS and periodicals with reasonably wide circulation

SEALED documents (government certified)
Evidence - Non-Hearsay Requiring Testimony

The "4 Priors" aren't hearsay provided the declarant testifies.
1. prior recorded recollection

2. prior out of court identification

3. prior consistent statement

4. prior inconsistent statement given under oath and subject to perjury
Evidence - Non-Hearsay Regardless of Testimony

SANE evidence is not hearsay so it's admissible.
STATE of mind

ADMISSION by party opponent

NONASSERTIVE conduct

EFFECT on listener
Evidence - Introduction of Character Evidence at
Civil Trials

Character evidence can be introduced in a civil trial after Chopping WEEDS.
CHILD custody cases

WRONGFUL death
ENTRAPMENT
negligent ENTRUSTMENT
DEFAMATION
SELF-DEFENSE
Evidence - Introduction of Character Evidence at
Criminal Trials

MIMIC the criminal before introducing character evidence.
MOTIVE

IDENTITY

MODUS operandi or preparation of plan

INTENT or knowledge, absence of mistake or accident

COMMON scheme or plan
Evidence - Hearsay Exceptions
Admissibility of Business Records

Business records feature the sound of DRUMS.
DURING
ROUTINE
UNTRUSTWORTHY
MADE
SOURCE
written statement made DURING or near time of matter in issue

ROUTINE, systematic practice
of maintaining/storing this type of record

UNTRUSTWORTHY. admissible unless circumstances indicate lack of trustworthiness

MADE in ordinary course of business

SOURCE of business record has personal knowledge of matter recorded
Family Law - Requirements of Prenuptial Agreements

Prenups are enforceable if the spouses SPIED on each other.
SUPPORT - must be fair at time of enforcement

PROPERTY - must be fair at time of execution

IN WRITING - court does not bind on issues involving children

ENTERED voluntarily into by both parties with knowing consent

DISCLOSURE - full and fair
Family Law - Right to Late Spouse's Benefits

A widow can drink all the VINOS she wants.
VETERAN's pensions

INDEMNITY compensation for service-connected deaths

NURSING home and medical care

OTHER survivor benefits (i.e. contractual rights, insurance benefits)

SOCIAL security pension - supplemental security income
Family Law - Validity Requirements of Marriage

To validate his marriage, the groom must CROWN his lovely bride's ASS.
CONSANGUINITY
RECOGNIZED c/l
OBTAIN license
WITNESSES
NO spouse

AGE
SOLEMNIZED
SIGNED
CONSANGUINITY - parties cannot be closer kin than second cousins

if RECOGNIZED as valid where contracted under common law, then valid in most non CL states

OBTAIN license from county auditor (must be used at least 3 days later, expires after 60 days)

WITNESSES - two physically present

NO other living spouse at time of marriage

AGE of majority

SOLEMNIZED by officer authorized by state to perform marriage ceremonies

SIGNED marriage certificate (witnesses and person solemnizing marriage)
Family Law - Marriage
Grounds for Declaration of Invalidity

The FACTOID about the Resident APE getting married was declared invalid.
FRAUD
AGE
CONSANGUINITY
TIMELINESS
OUT-OF-STATE void
INCAPACITY
DURESS

RESIDENT

ANNULMENT
PRIOR MARRIAGE
EFFECT on children
FRAUD - essentials of marital agreement based on fraud

AGE - under 18 without parental or court approval

CONSANGUINITY - parties are closer than second cousins

TIMELINESS - either party may petition for declaration of invalidity at any time

OUT of state marriage was void or voidable in contracting state

INCAPACITY - mental, physical, 5-year incurable insanity

DURESS - party induced to enter marriage by force

neither party was a RESIDENT of the court's state

ANNULMENT is the term describing the "symbolic" dissolution of a marriage that "never took place." However, if a marriage is legally declared invalid, the court will enter a Decree of Dissolution.

PRIOR marriage undissolved at time of marriage sought to be declared invalid.

no EFFECT on legitimacy of children despite declaration of invalidity.
Family Law - Typical Provisions of a Parenting Plan

Divorcing parents throw DARTS at a board to decide who gets the kids.
DESIGNATION of primary residential parent

ALLOCATION of decision-making authority

RESTRICTIONS on contact, where appropriate

TRANSPORTATION arrangements

SCHEDULE for residential contact with child
Family Law - reasons to grant Temporary Restraining Order

a family in DIRE need may request a temporary restraining order
prevent DISPOSAL or concealment of property

prevent INTERFERENCE or molestation with peace of opposing party or child

prevent REMOVAL of a child from jurisdiction of court

prevent ENTRY into family home of either party
Family Law - Grounds for Dissolution

IF you hit your spouse like a PIÑATA, the court will probably grant their petition for divorce.
IRRETRIEVABLY BROKEN
FILE in proper venue

PERSONAL jx
INCARCERATION or INCAPACITY
ÑO FAULT CONVERSION
ADULTERY
TREATMENT (cruel/inhumane)
ABANDONMENT
IRRETRIEVABLY BROKEN marriage - "no-fault dissolution" requires no further allegations to be granted

FILE in proper venue (any county where parties or children reside)

PERSONAL JURISDICTION needed for court to impose financial obligation upon a party

INCARCERATION or INCAPACITY of spouse for statutory period

NO FAULT CONVERSION divorce after statutory period with valid separation agreement

ADULTERY (defenses are condonation, recrimination, barred by SOL, procurement by petitioner)

TREATMENT that is cruel & inhumane

ABANDONMENT (requires intent to leave without consent/unjustified, lasting more than one year)
Family Law - Factors Affecting "Just and Equitable" Distribution

Your lifestyle might GET CRAMPED when marital assets are equitably distributed.
GOODWILL
EXTENT of property
TENANCY IN COMMON

COMPENSATION
right of REIMBURSEMENT
ALL property subject to division
MARITAL standard of living
PENSIONS
EARNING capacity
DURATION
GOODWILL of spouse's professional services practice (value intrinsically tied to personal work)

EXTENT and nature of separate and joint property

TENANCY IN COMMON results if joint property is discovered after decree of dissolution, to be held jointly with 50/50 split


COMPENSATION - all income and earnings are subject to division

RIGHT OF REIMBURSEMENT for joint property contributions to separate property assets

ALL property, both joint and separate, is to be divided in a just and equitable distribution (some states even permit division of pseudo-joint property acquired during non-formalized meretricious relationships)

MARITAL standard of living

PENSIONS - railroad, military and government pensions are governed by ERISA (federal law)

EARNING CAPACITY at time of separation - "rehabilitative" maintenance may be granted to less fortunate spouse to acquire of sufficient education or training for a limited period of time

DURATION of marriage: <5 yrs (division by restitution); 5 to 30 yrs (court discretion, case-by-case); >30 yrs (equalization of assets/income through time of retirement)
Family Law - Specific Obligations Included In
Child Support Orders

Support HAS TILTeD in favor of the children.
HEALTH CARE
ACTIVITIES
STATE SUPPORT SCHEDULE

TRANSPORTATION
INCOME recalculation
LIFE insurance
TAX eXEMPTION
downward DEVIATIONS
HEALTH CARE costs that are extraordinary

ACTIVITIES - day care, athletics, team sports, lessons, camp fees, etc (dovetails with decision-making authority)

STATE SUPPORT SCHEDULE - standard calculation

TRANSPORTATION for long-distance commuting to accomplish visitation

INCOME RECALCULATION due to fluctuations that reasonably affect ability to fulfill support obligations (based upon current pay stubs and tax returns; no retroactive changes)

LIFE INSURANCE - court may order parent to obtain life insurance to ensure fulfillment of prospective support obligations

TAX EXEMPTION allocations

DOWNWARD DEVIATIONS on the basis of support payments required for other children or time spent with paying parent
Professional Responsibility - Duties To Client

When playing 5-Card STUD with a client's money, I must be a responsible professional.
CCCCC (5-Card)

STUD
COMMUNICATE with client
act COMPETENTLY
do not reveal CONFIDENCES
avoid CONFLICTS of interest
render CANDID advice

SAFEGUARD client's money & property
TERMINATE atty/client relationship fairly and properly
UNREASONABLE fees should not be charged
act with reasonable DILIGENCE
Professional Responsibility
Withdrawing from Attorney/Client relationship

WE attorneys suffer from MANICURE withdrawal.
attorney is a WITNESS in the case, resulting in unfair prejudice to client

ETHICAL violation will occur if client is represented


MALICIOUS harassment will be brought upon opposing party with no good faith that claim/defense is warranted under law

ATTORNEY is being employed to commit past crime/fraud

*proper NOTICE of withdrawal must be given to client

INCOMPETENCY of attorney to handle matter

CRIMINAL or fraudulent conduct required

UNREASONABLE financial burden on attorney

*REFUND all papers/property of client, along with unearned fees, upon withdrawal

EXPENSES or fees promised by client are not paid



*these are procedural requirements of withdrawal
Real Property - Covenants of Title under Warranty Deed

The buyer CEASED worrying when seller delivered a warranty deed.
CONVEY
ENCUMBRANCES
ASSURANCES
SEISIN
ENJOYMENT
DEFENSE
right to CONVEY

ENCUMBRANCEs have been disclosed

further ASSURANCES that seller will provide cooperation and assistance to the other party in executing their duties under the contract

SEISIN (immediate possession)

quiet ENJOYMENT

warrant to DEFEND title against DEFECTS
Real Property - Requirements for obtaining title by
Adverse Possession

An adverse possessor's voice must ECHO long enough to get title to the property.
EXCLUSIVE and actual

CONTINUOUS for the statutory period

HOSTILE (without permission)

OPEN and notorious
Real Property - Non-Possessory Interests In Land

Let me C NIPPLES and I'll let you use my land.
COVENANT

NECESSITY
IMPLICATION
PROFIT
PRESCRIPTION
LICENSE
EXPRESS
SERVITUDE
COVENANT running with the land (writing, intent, touch & concern, privity of estate)


easement by NECESSITY (landlocked)

easement by IMPLICATION (conveyance with retention by owner of part of property; must be reasonably necessary)

PROFIT that complies with SoF to extract something therefrom

easement by PRESCRIPTION (adverse, open/notorious, continuous for statutory period - does not need to be exclusive)

revocable LICENSE that grants permission to enter without being a trespasser

EXPRESS easement by deed or will

SERVITUDE equitably enforceable by another lot owner
Real Property
Termination or Expiration of Non-Possessory Interests In Land

REMAND use of that ACRE back to its rightful owner!
RELEASE
EMINENT DOMAIN
MERGER
ABANDONMENT
NECESSITY
DESTRUCTION

ABUSE
CHANGED
REVOCATION (licenses)
ESTOPPEL
RELEASE by party with non-possessory interest (written)

EMINENT DOMAIN (condemnation / taking by regulation or physical possession)

MERGER - common ownership of dominant and servient tenement

ABANDONMENT (non-use is NOT sufficient)

end of NECESSITY

DESTRUCTION of servient tenement


ABUSE - servient landowner may receive injunction & damages

CHANGED neighborhood conditions (equitable servitudes only)

REVOCATION (applies to revocable LICENSES only)

ESTOPPEL - where holder represents intent to abandon & servient tenement so relies
Real Propert - Ways to Sever a Joint Tenancy

to sever a joint tenancy's TTIP, RIP'M apart
TTIP - 4 Unities

RIP'M - ways to sever a JT
TIME
TITLE
INTEREST
POSSESSION

RIGHT of survivorship upon death
INTER VIVOS conveyance resulting in tenancy in common
PARTITION
by MORTGAGING interest in title theory state
Real Property - Permissible Zoning Practices

The zoning board won't let me plant my FICUS in that GAP.
FLOATING zone
ISSUE permits
CONTRACT zoning
planned UNIT development
SEGREGATE incompatible use

GRANT variances
AMEND ordinance
PLANNING
FLOATING zones - specified circumstances that allow landowners to circumvent zoning restrictions

ISSUE conditional use permits (provided specified conditions exist)

CONTRACT with developers to rezone land if developed in a certain way

planned UNIT development that permits developers to vary use and space of tract to appropriately balance residential, commercial and business use

SEGREGATE land into districts to divide incompatible uses and protect established uses from economic loss


GRANT variances if:
unnecessary hardship is shown,
zoning precludes reasonable use, and
public will not suffer substantial detriment

AMEND zoning ordinances by local legislative action

comprehensive PLANNING
Real Property - Deed Requirements

You can't transfer property unless the deed IS WILD.
IDENTIFIES
SIGNED

WRITING
INTENT
LAND
DELIVERED
IDENTIFIES parties

SIGNED by grantor

in WRITING

must show INTENT to transfer an interest

LAND conveyed is described

must be DELIVERED
Real Property - Tenant's Remedies for Breach by Landlord

If landlord breaches, tenant can hit the ROAD.
RESCIND the lease agreement

OFFSET rent payment after repair

ABATE rent until landlord fixes problem (must place in escrow)

DAMAGES ordered by court
Real Property - Landlord's Obligations to Tenant

A landlord's day is MIRED with responsibilities to his tenants.
MAINTAIN

IMPLIED warranty of habitability

REPAIR

warrant quiet ENJOYMENT

DELIVER possession
Real Property - Tenant's Duties to Landlord

WE R UP to date with rent payments.
abstain from committing WASTE
refrain from interfering with quiet ENJOYMENT of other tenants

pay RENT



USE premises for legal activities only
fulfill PROMISES made to repair
Real Property - Landlord's Remedies for Breach by Tenant

Pay the rent or you're DEAD.
withhold DEPOSIT

EVICTION

ACCELERATION clause

DAMAGES for holdover
UCC Article 9 Secured Transactions
Classes of Tangible & Intangible Goods

a FAN is a SPECIFIC type of goods covered under UCC Article 9.
FARMING products

ACCOUNT proceeds received upon sale of collateral

NOTES (promissory & drafts)


STOCKS, bonds & mutual funds

PERSONALTY - chattels / movable goods generally

EQUIPMENT

CONSENSUAL security interests only (not statutory or mechanic liens)

INVENTORY

FIXTURES annexed to real estate (lighting fixtures, sprinkler systems, furnaces, etc.)

INTELLECTUAL properties

CONSUMER goods
UCC Article 9 Secured Transactions

VCR
The 3 Requirements for Attachment
VALUE must be given by creditor

CONTRACT - the security agreement serves as evidence of the secured transaction unless the secured party has taken possession of the collateral.

debtor must have RIGHTS in the collateral.
UCC Article 9 Secured Transactions
Priority of Creditors

Article 9 dictates which creditor gets to keep the O-PA-L NUG(get).
buyer in ORDINARY course
PERFECTED ATTACHED creditor
LIEN creditor


NON-ordinary course buyer
attached UNPERFECTED creditor (including bankruptcy trustee)
GENERAL unsecured creditor
UCC Article 9 Secured Transactions
Advantages to Purchase Money Security Interest (PMSI) Status

HATS off to PMSI creditors because they get top priority.
HOUSEHOLD goods
mere ATTACHMENT
TWENTY day grace
SUPER priority on inventory
a PMSI in HOUSEHOLD goods is effective unlike every other security interest

mere ATTACHMENT perfection

TWENTY day grace period to perfect interest in non-inventory goods through filing

SUPER priority on inventory if creditor provides advance notice to other creditors who have a security interest (e.g. after acquired interest clause) in that same collateral
UCC Article 9 Secured Transactions - Assignees
&
UCC Article 3 Commercial Paper - Holder in Due Course

three requirements to avoid being subject to personal defenses
FOR value
IN good faith
without NOTICE
UCC Article 9 Secured Transactions
Methods of Perfection

Perfection Calls For Many Things (5)
Possession

Control

Filing the financing statement in debtor's state

Mere attachment (consumer goods and PMSI)

Title certificate
UCC Article 9 Secured Transactions
Permitted Contents of Security Agreements

The FOCAL Point of a security agreement is the collateral.
FUTURE cash advances
OTHER duties/rights
describe COLLATERAL
AFTER-ACQUIRED clauses
floating LIEN on fast-turning inventory

PROCEEDS upon disposition
FUTURE advances clause - allows further cash advances to be secured by collateral covered in earlier security agreement

OTHER provisions, such as set-off or recoupment rights, debtor duties, circumstances constituting default, remedies, entitlement to costs & attorneys fees, and good faith requirement

COLLATERAL description in reasonable detail - specify collateral's primary use in debtor's hands

AFTER-ACQUIRED property clauses require that future collateral acquired or manufactured by the debtor later (including unmatured commercial tort claims) be covered by the present security agreement

floating LIEN - type of security agreement on retail inventory that turns over frequently (executing new agreements each time not practical)


PROCEEDS include whatever is received by the debtor upon the sale, exchange or other disposition of the primary collateral.
UCC Article 9 Secured Transactions
Repossession Right of Creditor upon Default by Debtor

The repo man SCAR'D the debtor but that's his right.
STRICT foreclosure
get CONSENT to take
judicial ACTION
REPOSSESSION
DISPOSITION sale
STRICT foreclosure, where creditor legally retains the collateral and outstanding debt is cancelled

CONSENT, voluntary and contemporaneous, from debtor to enter and take collateral from home or other private property

ACTION by judicial writ authorizing Sheriff to repossess

self-help REPOSSESSION unless it causes breach of peace

DISPOSITION sale. Non-judicial liquidation by creditor (after notifying debtor and other perfected parties). Creditor can obtain deficiency judgment against debtor if collateral brings less than the debt.
Torts - Transferred Intent Doctrine
Five Relevant Torts

you Can't BAIL if you intended one tort but did something else
trespass to CHATTELS

BATTERY
ASSAULT
false IMPRISONMENT
trespass to LAND
Torts - Negligence
Elements to make out a Prima Facie case

Any band that puts out a DRAB CD is guilty of negligence to its fans.
DUTY to exercise
REASONABLE care
to ANYONE in plaintiff's position
a BREACH of the duty to prevent the foreseeable risk of harm

CAUSATION (actual/"but for" and proximate/legal)
resulting DAMAGES caused by the breach
Torts - Negligence
Alternative Standards of Care beyond "the reasonable person"

SKIDMART didn't HELP that COUPLE so they'll be held to a different standard of care.
SCHOOL and pupils (special relationship)

K duty (contractual special relationship)

INNKEEPER and guests ("highest" duty)

DRAMSHOP laws impose liability upon drinking establishments

MALPRACTICE standards for professionals

liability to AUTOMOTIVE non-paying guests for reckless driving

RES ipsa loquitur

TRAVELERS aboard a common carrier ("highest" duty)


HOSPITAL and patients (special relationship)

EMPLOYER and employees (special relationship)

LANDLORD and tenants (special relationship)

PRISONERS held by law enforcement (special relationship)


CREATION of harm - duty to alleviate consequences of defendant's act when it creates risk of harm to others, even if act was not negligent

OWNER/OCCUPIER of land - varying duties to invitees, licensees and trespassors

UNDERTAKING to act - may not abandon an attempted rescue if defendant leaves plaintiff in worse condition

negligence PER SE - statute conclusively establishes standard for liability (reasonableness of defendant's actions irrelevant)

LOCAL ordinance violation by defendant is "evidence of negligence" by defendant - helps plaintiff establish prima facie case

EMERGENCY situation will lower defendant's standard of care unless defendant's negligence caused the emergency
Torts - Causes of action related to Products Liability

You are liable for harm done if you use your PENIS as a product.
PUBLIC misrepresentation
EXPRESS warranty
NEGLIGENCE
IMPLIED warranty
STRICT products liability
PUBLIC MISREPRESENTATION under restatement 402(B)

EXPRESS warranty under UCC 2-313

NEGLIGENCE

IMPLIED warranty under UCC 2-314 to 2-318
merchantability
fitness for a particular purpose
remote purchasers covered

STRICT products liability - known as "Absolute Liability in Tort" under Restatement 402(A)
Torts - Bases of Strict Liability for Injury to Persons or Property

You will be strictly liable for missing the day if you are not UP at DAWN.
ULTRA-HAZARDOUS, abnormally dangerous activities
defective PRODUCTS

(at)

DOMESTIC animals with known dangerous propensities
ALL injuries caused by wild ANIMALS
WORKER's compensation (statutory strict liability)
NO-FAULT automobile insurance (statutory strict liability)
Torts - Causes of Action for Economic Injury

causing FAMINE is an economic tort.
FRAUD
ABUSE of process
MALICIOUS prosecution
INJURIOUS falsehood
NEGLIGENT misrepresentation
interference with prospective ECONOMIC advantage
FRAUD - misrepresentation of a past or present material fact

ABUSE of process - initiation of civil or criminal proceedings against plaintiff with malicious intent (prior action NEED NOT have terminated in favor of present plaintiff)

MALICIOUS prosecution - initiation of civil or ciminal proceeding against plaintiff with no probable cause that plaintiff is liable or guilty, malicious intent (prior action MUST have terminated in favor of present plaintiff)

INJURIOUS falsehood (disparagement) - recklessly or intentionally published false assertion of fact leading to pecuniary injury caused by 3rd party's response

NEGLIGENT misrepresentation - negligent misstatement of material fact in business of supplying information to others justifiably relied upon by plaintiff

interference with prospective ECONOMIC advantage, including contractual relations
Torts - Theories of Vicarious Liability

i DARE Plaintiff to Join vicariously liable tortfeasors.
DELEGATION of danger
AUTOMOBILE ownership
RESPONDEAT superior
Negligent ENTRUSTMENT

known PROPENSITIES
JOINT enterprise
DELEGATION of non-delegable duties (inherently dangerous work, like excavation)

AUTOMOBILE ownership
negligent entrustment (knew of unsafe driving habits)
use by family members for a family purpose
statutory liability for consenting to another's use of the vehicle

RESPONDEAT superior - "master" liable for acts of "servant" if committed within scope of employment

negligent ENTRUSTMENT of dangerous instrumentalities to a child


failure to control child's known dangerous PROPENSITIES

JOINT enterprises - when two or more persons act in concert
Torts - Attractive Nuisance
Test To Determine Liability

An attractive nuisance is a REAL threat to the safety of children.
RECOGNITION of danger
EXPENSE
ARTIFICIAL
LIKELY trespassors
children cannot RECOGNIZE danger

EXPENSE of making condition is slight compared to danger

dangerous condition on property is ARTIFICIAL

children are LIKELY to trespass on property (and possessor knows or should know)
Torts - Defenses to Defamation
Privileges

It's bad P.R. to defend FOGIES in defamation cases.
PROCEEDINGS
REPORTS

FIRST amendment
OPINIONS
GOVERNMENT officials
INTEREST of
EQUAL time broadcasts
SPOUSES
statement occurred during PROCEEDINGS of legislative or judicial branch

REPORTS of public proceedings


FIRST amendment qualified privileges - non-malicious statements about public figures and public controversies, non-negligent statements about a private person

fair comment OPINIONS

official statements of GOVERNMENT officials

statements made in the INTEREST of self, third persons or the public

EQUAL time broadcasts

communication between SPOUSES
Torts - Statements that Constitute Slander Per Se

It's slander per se to call someone SLIM.
SEXUAL misconduct (lack of chastity of a woman)
LOATHSOME, communicable disease
INCOMPETENCE in trade or profession
conduct/crime involving MORAL turpitude
Torts - Defenses to Intentional Torts

Hell hath no fury like A SCORN'D tort victim.
ARREST

SHOPKEEPER's privilege
CONSENT
defense of OTHERS
RECAPTURE of property
NECESSITY
DEFENSE under protective privilege (self, land, chattels)
use of reasonable force to effect an ARREST



SHOPKEEPER's privilege to detain suspect for reasonable time using non-deadly force

CONSENT

defense of OTHERS if protected party was entitled to use same amount of force

RECAPTURE of property if entitled to immediate possession

NECESSITY for public purpose or to abate nuisance

DEFENSE of self, land and chattels under protective privilege
Torts - Available Remedies
Damages, Restitution, Equity

Get back at a tortfeasor by Playing CLARINET.
PUNITIVE damages

COMPENSATORY damages
equitable LIEN
ASSUMPSIT
REPLEVIN
INJUNCTION
NOMINAL damages
EJECTMENT
constructive TRUST
PUNITIVE damages for willful, wanton or malicious conduct normally associated with intentional torts


COMPENSATORY damages for past, present and foreseeable future loss or injury (unforeseeable special damages must be specifically pleaded)

equitable LIEN on defendant's property to secure payment of debt owed to plaintiff

ASSUMPSIT (quasi-contract) suit to recover reasonable value of a benefit unjustly retained by defendant (plaintiff must waive tort liability)

REPLEVIN to recover possession of specific personal property wrongfully taken

INJUNCTION if there is inadequate remedy at law, threat of multiplicity of suits, damages are speculative or too small, and plaintiff will suffer from irreparable injury

NOMINAL damages recoverable where no injury sustained

EJECTMENT to restore possession of real property from which plaintiff was wrongfully ousted, PLUS mesne damages (rental value during that period)

constructive TRUST - equitable creation of a "trust" to compel defendant to reconvey title to property unjustly retained
Torts - Limitations on Awarding of Damages

tort damages are measured by how well you FUCC.
FORESEEABLE - damage/injury must be foreseeable at the time duty is breached (proximate cause)

UNAVOIDABLE - no recovery for losses which reasonably could have been avoided or mitigated

damages must be CAUSED by defendant's breach ("but for" causation)

sufficiently CERTAIN - damages cannot be speculative
Torts - Defenses to Claims Brought in Equity

Rights in equity LAPSE if U assert a proper defense.
LACHES
freedom of ASSOCIATION
injunction against PROSECUTION
freedom of SPEECH
injunction to ENJOIN crime

UNCLEAN hands
LACHES - equity aids the vigilant, not those who knowingly sit on rights waiting for a defendant to detrimentally change position

freedom of ASSOCIATION - equity will not interfere with the internal management of an ASSOCIATION (exception: where property right is embedded in association membership)

injunction sought against PROSECUTION of a crime - equity will not enjoin PROSECUTION of a crime (exception: where criminal statute has been declared unconstitutional)

freedom of SPEECH - equity will not enjoin SPEECH (exception: national security at stake, sometimes trade libel)

injunction sought against criminal act - equity will not ENJOIN crime (exception: public nuisance if criminal prosecution is an inadequate remedy)


UNCLEAN hands - he who seeks equity must do equity (where plaintiff's unclean conduct is related to subject matter of suit and defendant is injured by it)
Trusts - Elements of a Valid Trust

I know the PARTS of a valid trust.
INTENT to create

valid PURPOSE
ASCERTAINABLE beneficiaries
RES
named TRUSTEE
SETTLOR
INTENT to create a trust is manifest by conduct

valid PURPOSE (not contrary to public policy or illegal)

ASCERTAINABLE beneficiaries (directly capable of taking and holding title for their benefit)

RES must be a presently existing, identifiable property interest

named TRUSTEE with active duties who is capable of acquiring, holding and administering the trust res; legal & equitable titles merge if beneficiary and trustee are same person

SETTLOR with capacity to understand extent of property, natural objects of bounty and nature of disposition
Trusts - Ways a Trust can be Created

it's WICKED smart to create a trust.
by WILL
INTER VIVOS
CONSTRUCTIVE/resulting
by K (contract)
EXERCISING power of appt.
DECLARATION
created by WILL (testamentary trust)

INTER VIVOS trust created by transfer of property

CONSTRUCTIVE or resulting trust created as a matter of law

creation of trust by K (contract)

creation of trust by EXERCISING the power of appointment

DECLARATION of trust by property owner
Trusts - Duties of Trustee

The trustee had a duty to make sure the beneficiary wasn't drinking SPOILED CAB.
SELF-DEALING
PROTECT corpus
not usurp OPPORTUNITIES
INFORM on big transactions
LITIGATE
EXERCISE care, skill, prudence
not DELEGATE authority

COMPLY with terms
ACCOUNTING
refrain from BORROWING
refrain from SELF-DEALING (duty of loyalty)

PROTECT the corpus of the trust by preserving principal and diversifying the trust portfolio

refrain from usurping OPPORTUNITIES available to trust (duty of loyalty)

INFORM settlor and beneficiaries of transactions involving more than 25% of trust assets and wait for objections prior to executing the transaction

LITIGATE on behalf of the trust when necessary

EXERCISE degree of care, skill and prudence which would be exercised by a reasonably prudent person in managing his/her own property

avoid DELEGATION of duties involving judgment, discretion or power of appointment (proper administration)


COMPLY with terms & duties under trust

detailed ACCOUNTING, including earmarking and segregating trust assets separately from personal assets

refrain from BORROWING funds from the trust (duty of loyalty)
Trusts - Trustee's Defenses for Breach of Duty

A trustee can KIL a suit against him for breach of duty.
KNOWING
INSTRUMENT
LACHES
KNOWING consent (or waiver) to breach of trustee's duties by beneficiary (implicitly applied to beneficiaries who benefited from wrongful act)

INSTRUMENT contains exculpatory or "hold harmless" provisions. These are enforceable ONLY if breach was merely negligent and trustee lacked bad faith.

LACHES or statute of limitations - failure by beneficiary to timely assert claims
Trusts - When a "Charging Order" to
Invade a Spendthrift, Support or Discretionary is Permitted

Certain ANTICS let creditors invade the principal of protective trusts.
ALIMONY
NECESSITIES
TAXES
INTENTIONAL hindrance of creditor
CHILD SUPPORT
SELF-SETTLED trust assets
ALIMONY obligations due a former spouse

NECESSITIES - debts incurred for food, shelter, medical expenses, etc.

TAXES - income necessary to satisfy beneficiary's tax responsibility can usually be attached

INTENTIONAL hindrance, delay or defrauding of creditor's claims by transfering assets into a trust

CHILD support owed to minor children

SELF-settled asset protection trusts where settlor is also the beneficiary (minority rule: permitted if irrevocable and not created to defraud creditors)
Future Interests - Applicability of Rule Against Perpetuities

RAP music is ECO-friendly.
RULE AGAINST PERPETUITIES

EXECUTORY interests

CONTINGENT remainders

OPEN class remainders
Future Interests - Allowed Restraints on Alienation

U F See fighters are good at restraining aliens.
USE restrictions
right of FIRST refusal
"wait and SEE"
USE restrictions (with reversionary interest) - "To A but if not used for church purposes, the land shall revert to me."

right of FIRST REFUSAL - allows holder to match a third party's offer (if accepted) to buy the property within a reasonable time

"wait and SEE" doctrine - imposed by statute where operation of trust continues until last possible relevant time under the RAP (or 90 years) to see if the trust will survive.
Trusts - Ways a Trust can be Terminated

When a trust wants to be terminated, it yells "Pour some ACID on ME!!!"
PETITION to court

ACCOMPLISHED purpose
CONSOLIDATION of trusts
INCOME interest terminates
DONOR termination

MERGER of title
EXPIRATION of trust term
PETITION to court by beneficiary, spendthrift provision or settlor (if beneficiary is in agreement)

purpose ACCOMPLISHED, illegal or impossible (such as if the sole beneficiary dies without heirs)

CONSOLIDATION by the court where multiple trusts have same purpose, trustees, settlors and beneficiaries

INCOME interest terminates - corpus is distributed to remainder beneficiaries if all income beneficiaries die (doctrine of acceleration)

unilateral DONOR termination permitted if this right is specified in the instrument. This right is called a "grantor trust," so assets are included in grantor's estate for tax purposes.


MERGER of legal and equitable title when beneficiary and trustee are the same person

EXPIRATION of term specified in the trust instrument
Wills - Elements of a Valid Will

I CAST a valid will into the stream of probate court.
INTENT to devise contents upon death at time of execution

CAPACITY to understand the property, people involved and the effect of executing the instrument.

ATTESTED to by two competent, non-interested witnesses

SIGNED by testator or person directed who is within "line-of-sight"

TESTAMENTARY age of legal capacity
Wills - Eight Frequently Tested
Problematic "Takers" Under the Will

An executor looks to the LIAR DOCS to decide who takes under the will.
LATER spouse
IRREVOCABLE living trusts
ADOPTED children
REFUSAL by beneficiary

subsequent DIVORCE
OMITTED surviving children
beneficiaries included in CLASS
SATISFACTION by inter vivos transfer
LATER spouse not named in existing valid will usually takes all jointly-owned property and the greater of $50k or 1/2 of the separate property under UPC intestacy succession rules

IRREVOCABLE living trusts where the beneficiary is kin (lineal descendants of testator's grandparent) are covered by antilapse statute, but not devises where survivorship is required--all other lapsed devises are added to the residue of the estate.

ADOPTED, half-blood, acknowledged and paternity suit children are treated as natural issues for inheritance purposes under the UPC and most states (exception: children take by right of representation if intestacy rules apply)

a named beneficiary may REFUSE or disclaim to accept a devise under the will; property is added to residue


subsequent DIVORCE causes all provisions favoring ex-spouse to be revoked unless stated otherwise in the will or if listed as beneficiary of insurance policy or ERISA benefit

OMITTED surviving children usually qualify for a forced share as if decedent died intestate (unless disinheritance can be proved)

CLASS beneficiaries must be sufficiently identifiable; courts refer to statute, testator's intent and applicable rules of construction to determine when class closes

SATISFACTION of testamentary devise cannot be made by including inter vivos transfers of gifts given to beneficiary unless that intent stated in writing (i.e., executor can't deduct $20k gift to beneficiary received while testator was living from a $50k will devise)
Wills - Will Challenges
Grounds To Contest

a Dependable, Constructive UMPIRE decides whether a will can be contested.
DEPENDANT relative revocation may apply if subsequent will or codicil is invalid AND prior valid will is substantially identical & consistent with testator's intent

CONSTRUCTIVE trust may be necessarily imposed to prevent unjust enrichment or injustice to omitted beneficiary (wrongdoer serves as trustee, ha ha ha)


indicia of UNDUE influence (only a CAD ROBS a rich testator)

MISTAKE in the execution (wrong document signed with no intent to make a will--will invalid, parol evidence inadmissible)

fraudulent PREVENTION of a will being written

fraud in the INDUCEMENT

failure to REVOKE

fraud in the EXECUTION
Wills - Undue Influence
Factors to Consider

only a CAD ROBS a rich testator.
CONFIDENTIAL (or fiduciary) relationship exists

ACTIVE participation in will preparation or execution

DISPOSITION to exercise undue influence


unnatural RESULT

OPPORTUNITY to exercise undue influence

undue BENEFIT to alleged wrongdoer

SUSCEPTIBLE testator
Wills - Classification of Legacies and Devises
Acrostic

Some Grantors Die Really Intestate
Some - Specific devise or bequest

Grantors - General legacy

Die - Demonstrative legacy

Really - Residuary gift

Intestate - Intestate property
SPECIFIC devise or bequest - particular items specified in the will

GENERAL legacy - a sum of money to be paid out of any assets of the estate

DEMONSTRATIVE legacy - a sum of money to be paid from a particular account or upon sale of a particular asset

RESIDUARY gift - everything else not mentioned under a will with a residuary clause, distributed to the primary beneficiaries

INTESTATE property - where there is no will, a lapse, disclaimer, no residuary clause, or the only will was successfully challenged

(NOTE: most states disfavor intestacy--the court will interpret parol evidence to save any document that exists and adequately expresses the decedent's intent)
Wills - Ways to Revoke the provisions of a Will

DIVORCE will AMBUSH beneficiaries.
DIVORCE
post-will ISSUE
VARIANCE
OBLITERATION
slayer RESTRICTION
CY PRES
EXPRESS revocation

ADEMPTION
post-will MARRIAGE
BEQUEST advancement
UNIFORM Simultaneous Death Act
SIGNATURE defaced
HOLOGRAPHIC codicil
DIVORCE / annulment (property passes as if the former spouse predeceased testator)

post-will ISSUE (revoked as to that child)

VARIANCE of provisions that increases a non-residuary gift or changes a beneficiary

OBLITERATION by cancellation or physical act (burning or tearing)

by RESTRICTION under slayer statute

CY PRES modification of testator's bequest by the court to continue charitable purpose when impossible, impractical or wasteful to carry out as stated in the will

EXPRESS revocation by subsequent properly executed instrument (including holographic will)


ADEMPTION of property devised but not owned at death

post-will MARRIAGE (as to surviving spouse's intestate share)

BEQUEST advancement paid to beneficiary inter vivos (if gift exceeds intestate share, heir gets nothing)

UNIFORM Simultaneous Death Act

SIGNATURE of testator intentionally defaced

HOLOGRAPHIC codicil modifying a holographic will
Wills - Surviving Spouse's Right to Elective Share

A surviving spouse won't get the SHAFT Provided she takes her elective share.
SOCIAL SECURITY
HOMESTEAD
ALLOWANCE
FRACTIONAL
TANGIBLE

PRIVATE PENSION PLANS
SOCIAL SECURITY

HOMESTEAD laws secure the family home free of claims of creditors

family ALLOWANCE awarded by probate court (statutory authorized maintenance and support during administration of will)

FRACTIONAL share of decedent's estate (3% per year of marriage up to 50% under UPC; some states flat 1/3)

TANGIBLE personal property set-aside as enumerated by statute


PRIVATE PENSION PLANS paid as joint and survivor annuity to worker and spouse
Wills - Ways for Surviving Spouse to Maximize Elective Share

United Artists changed the SCRIPT. Now the surviving spouse gets a bigger elective share.
US Savings Bonds

APPOINTMENT to self

SHAREHOLDER agreements
gifts CAUSA mortis
RETIREMENT benefits
INTER VIVOS gifts w/in 1 yr
POST-MARRIAGE jointly held property
TOTTEN trust assets
UNITED STATES savings bonds (jointly held)

APPOINTMENT (to self) of trust res over which decedent had a general Power of Appointment (to give to anybody)


SHAREHOLDER agreements entered into after the marriage restricting sale or testamentary disposition of testator's jointly held common stock

revoking gifts CAUSA mortis not made in contemplation of death

submit claims for decedent's RETIREMENT benefits

INTER-VIVOS gifts, even to charity, if made within 1 year of testator's death for more than $10k

POST-marriage jointly held property (real or personal) and bank accounts to the extent that spouse furnished consideration

collect assets in TOTTEN trust accounts (payable-on-death)
Wills - Slayer Statute Exceptions

A killer may still take if he acted without SIN.
perfect SELF-DEFENSE

INSANITY

NEGLIGENT homicide