Fl Bar Essay Flash Cards

Front 1

Requirements for a Negotiable Instrument

Back 1

1. Writing
2. Signed by Maker of Drawer
3. Unconditional
4. Promise to Pay or Order to Pay
5. Fixed Amount
6. In Money
7. No other undertaking or instruction
8. On Demand or at a Definite Time
9. To Order or To Bearer

Front 2

Indorsements

Back 2

Special Indorsement: Specifies the person to whom the instrument is papyable

Blank indorsement: Does not specify the person to whom the instrument is payable; generally consists of a mere signature

Front 3

Order Paper And Bearer Paper

Back 3

Bearer Paper: can be negotiated by transfer of possession alone; voluntary or involuntary

Order Paper: can be negotiated only by transfer of possession plus an indorsement by the holder.

Front 4

What is a Holder

Back 4

A holder is in possession of bearer paper or in possession of order paper that has bene issued or properly indorsed to him

Front 5

What is a Holder in Due Course

Back 5

A holder in due course is a holder who gives value in good faith without a notice who is free from most defenses.

Front 6

What is a Holder in Due Course

Back 6

Infancy
Duress
Illegality
Material alteration
surerityship

Front 7

Fraud in the inducement vs. Fraud in the factum

Back 7

FITI - Personal Defense: person is aware of the character of the writing and its essential terms - induced by deception some other matter

FITF - Real Defense: induced to sign by description with respect to the writing character or terms- dont know what their signing have to show excusable interest.

Front 8

Makers Contract Liability

Back 8

obligation to pay to the instrument according to its terms at the time it was issued if there is more than one maker, the makers are jointly and severally liable on the instrument

Front 9

Indorsers ocntract liability

Back 9

obligated to pay according to the terms of the instrument at the time of the indorsement. Those signing later in time can get complete reimbursement from those signing prior in time

Indorse is secondarily liable, only comes liable after the instrument has been presented to the maker or the drawee that party has dishonored the instrument and notice of dishonor has been given to the indorse.

Liability - with a check is 30 days

Front 10

Qualified indorsement

Back 10

Without recourse if the check is dishonored and appropriate notice is given payee is not liable as an indorser.

Front 11

Drawer Contract Liability

Back 11

obligated to pay according to the terms of the instrument at the time of the indorsement. Those signing later in time can get complete reimbursement from those signing prior in time

Indorse is secondarily liable, only comes liable after the instrument has been presented to the maker or the drawee that party has dishonored the instrument and notice of dishonor has been given to the indorse.

Liability - with a check is 30 days

Front 12

Properly Payable Rule

Back 12

The bank may pay out the customers money only if it follows the customers order exactly. If it does not do so, it must re-credit the account.

Front 13

Presentment Warranties

Back 13

The party obtaining payment and previous transferors warrant that
1. they are entitled to enforce the instrument
2. the instrument is not altered
3. they have no knowledge that the drawers signature is unauthorized

A drawee can recover for breach of presentment warranties even from a HDC or one who detrimentally relied on payment

Front 14

Transfer Warranties

Back 14

Each party that transfers an instrument and receives consideration warrants that
1. they are entitled to enforce the instrument
2. that all signatures on the instrument are authentic and authorized
3. the instrument has not been altered
4. that no defense or claim of any party is good against the warrantor
5. that the warrantor has no knowledge of any insolvency proceeding that has been instituted against the maker acceptor or in the case of an unaccepted draft. the drawer

Front 15

What is the definition of a Security Interest?

Back 15

- One party (creditor),

loans or extends credit to another party (debtor),

and the creditor obtains an interest in the property (collateral) of the debtor.

Front 16

Collateral: Three (3) types of Collateral?

Back 16

1. Goods

2. Quasi-Tangible Property

3. Intangible Property

Front 17

Collateral: Four (4) types of "goods" property used as collateral?

[F.I.C.E.]

Back 17

F = Farm Products -

I = Inventory - materials used or consumed in business

C = Consumer Goods - used or bought for use primarily for personal family or household purposes

E = Equipment - used or bought for use primarily in business

Front 18

Collateral: Four (4) types of "quasi-tangible" property used as collateral?

Back 18

1. Instruments

2. Documents - treated as evidencing that the person in possession of it is entitled to receive hold and dispose of the document and the goods it covers

3. Chattel Paper - a record or records which evidence both a monetary obligation and a security interest in or a lease of a specific goods.

4. Investment Property - stocks bonds mutual funds and brokerage accounts containing such items

Front 19

Collateral: Three (3) types of "Intangible" property used as collateral?

Back 19

1. Accounts Receivable - a right to payment for goods for services a contractual obligation arising from a loan of money is not an account

2. Deposit Accounts - a demand time saving passbook or similar account maintained with a bank.

3. General Intangibles (catch-all).

Front 20

Attachment: What are the Four (4) Elements of Attachment?

Back 20

1. Writing

2. AGREEMENT

3. Secured Party gives VALUE.

4. Debtor must have RIGHTS IN THE COLLATERAL.

Front 21

Attachment: "Content of the Agreement" - What three (3) things must the agreement contain?

Back 21

1. Intent to create a security interest,

2. Authentication (signature),

3. A description of the collateral.

Front 22

Collateral: Four (4) types of "quasi-tangible" property used as collateral?

Back 22

It may.

- parties should have a clause

Exception: consumer goods - only if purchased 10 days after value is given by the secured party.

Front 23

Collateral: What is the "Proceeds Doctrine"?

Back 23

- Unless otherwise agreed, secured party always has a right to proceeds of the named collateral.

Proceeds includes whatever is received upon the sale exchange collection or other disposition of collateral or proceeds

Front 24

Perfection: What are the Five (4) Methods of Perfection?

[P.-F.A.C.T

Back 24

1. Possession

2. Filing

3. Automatic

4. Control

Front 25

Perfection: What is the most common type of "automatic perfection"?

Back 25

- PMSI for the purchase of consumer goods.

Front 26

What is Purchase money security interest

Back 26

when the loan is issued to purchase a good and a secured interest is taken in that good

Front 27

Perfection: What is the most common method of perfection?

Back 27

It may.

- parties should have a clause

Exception: consumer goods - only if purchased 10 days after value is given by the secured party.

Front 28

Perfection: What three (3) things must the filing statement contain?

Back 28

1. Debtor's Name

2. Description of the Collateral

3. Secured Party's name

Front 29

Perfection: Where do you file a filing statement?

What if it is land-related collateral?

Back 29

- In the state where the debtor is located.

- also file in the county recorder's office where the land is located.

Front 30

Perfection: As a practical matter, what three (3) other things need to be on a financing statement (besides the main three).

Back 30

1. Secured Party's address

2. Debtor's address

3. Type of Organization of the debtor.

Front 31

Priority: [Secured Party vs. Secured Party] - What is the General Rule in this situation?

Back 31

- The first to FILE OR PERFECT, whichever occurs first, has priority.

Front 32

Priority: [Secured Party vs. Secured Party] - Business Equipment: What does a PMSI have to do to have priority?

Back 32

- Needs to be perfected at the time the debtor receives possession or 20 days thereafter.

Front 33

Priority: [Secured Party vs. Buyer of Collateral] - "Authorized Sales", Who has priority?

Back 33

- If the sale is authorized by the secured party, the buyer takes free of the security interest.

Front 34

Priority: [Secured Party vs. Buyer of Collateral] - "Unauthorized Sales", What is the General Rule?

Back 34

- Security interests continue even if the collateral is sold.

- The secured party can get the collateral back from whoever has it.

Front 35

Priority: [Secured Party vs. Buyer of Collateral] - "Unauthorized Sales", What is the exception to the general rule?

Back 35

- A buyer in the "ordinary course of business" doens't have to give the property back.

Front 36

Priority: [Secured Party vs. Lien Creditors] - When does the secured party have priority?

Back 36

If they have "perfected" prior to the lien creditor.

Front 37

PMSI vs. Lien Creditor - Who has priority?

Back 37

If the PMSI files within 20 days from when the debtor receives the property.

Front 38

Priority: [Secured Party vs. Secured Party] - What is the General Rule in this situation?

Back 38

Statutory Lien Holders

Front 39

Resale of Collateral: Five (5) main points on resale.

Back 39

1. Must give Reasonable Notification,

2. Commercially Reasonable Sale

3. Secured Party can buy collateral,

4. Right to Deficiency Judgment,

5. Debtor has Right to Redeem.

Front 40

Fl Con Law:
What is the Lemon Test

Back 40

A law passed for free exercise of religion

1. secular purpose
2. primary effect neither advance or inhibit religion
3. does not produce excess government entanglement

Front 41

Under the FL Constitution, Public Employees are NOT permitted to ______, although they have the Right to right to bargain ________.

Back 41

Strike; Collectively (including through a Union).

Front 42

When determining if the FL Government has Violated the Equal Protection Clause of Florida Constitution, the Courts use a the ________ , unlike the U.S. Constitution EP Clause, which reviews under _________.

Back 42

Rational Basis Test (Rational Relationship to the Attainment of a Legitimate State Interest); Strict Scrutiny.

Front 43

Florida Due Process

Back 43

- A buyer in the "ordinary course of business" doens't have to give the property back.

Front 44

Access to Courts - Kulger v. White Test

Back 44

The courts shall be open to every person for redress of any injury and justice shall be administered without sale, denial or delay

Test
If the legislature abolishes a cause of action a reasonable alternative must be provided unless

1. The legislature can demonstrate compelling public necessity
2. No alternative method of meeting the necessity can be established

Front 45

Under the Separation of Powers, a Member of any One branch of the FL government cannot _________ the Powers of Another, unless _________ in the Constitution.

Back 45

Encroach; Expressly Provided.

Front 46

A Homestead is defined as:

Back 46

the Primary Residence of the Owner (or the owner's family).

Front 47

Under the Homestead Exemption, property located Outside a Municipality may be as large as _______ Acres of _______ land.

Back 47

160; Contiguous

Front 48

Under the Homestead Exemption, property located Within a Municipality may be as large as _______ Acres of _______ land.

Back 48

1/2; Contiguous

Front 49

The Assessed Value of a Homestead may be changed annually by _____ percent, or the percent change in the _______, whichever is lower.

Back 49

3; Consumer Price Index.

Front 50

The Homestead Cap is _________ from one home to another, but Not to another _______.

Back 50

Portable; Buyer.

Front 51

The Homestead Exemption Cap does not apply to _____, ______, or ________ to a Property.

Back 51

changes, additions and improvements

Front 52

The FL Constitution provides that No Tax upon the Income of Residents and Citizens in excess of ______ Percent of Net Income (even if rate as is authorized by a 3/5’s vote of the membership of each House).

Back 52

Five

Front 53

In FL, Courts must Defer to Agency findings unless the findings are not __________ to the Agency's _________.

Back 53

Reasonably Related; Enabling Legislation.

Front 54

Access to Courts - Kulger v. White Test

Back 54

1) The Legislature has determined that it fulfills an Important state interest
2) Enough Funds have been Appropriated to fund the expense
3) The Legislature has authorized the local entity to Use a New Funding Source;
4) The law is Approved by a 2/3's Majority in both houses; and
5) It includes the Requirement that it be Applied Equally to all persons

Front 55

Excess State Revenues Collected shall be transferred to the _________ until it reaches the Maximum Balance specified, and thereafter shall be Returned to the Taxpayers as Provided by ________.

Back 55

budget stabilization fund; general law.

Front 56

Under the FL Constitution, a Homestead cannot be Devised (will) if...

Back 56

the owner is Survived by a Spouse or Minor Child.

Front 57

The FL Constitution provides "no person shall be Deprived of any Right because of _____, ______, ______, or _______.

Back 57

race, religion, national origin, or physical disability.

Front 58

Under the FL Constitution, a law can contain only a ________, however any challenges must be filed between the date ______ and date of _________.

Back 58

Single Subject; Legislation, Codification.

Front 59

Granting more Powers to the Executive Branch would be an _________ by the Fl Legislature.

Back 59

1/2; Contiguous

Front 60

Under the Separation of Powers, a Member of any One branch of the FL government cannot _________ the Powers of Another, unless _________ in the Constitution.

Back 60

Encroach; Expressly Provided.

Front 61

Under the FL Constitution, any restriction/qualification on how an Appropriation may be used must be ________ Related to the _______ of the Appropriation.

Back 61

Directly and Rationally; Purpose

Front 62

Regarding Florida Homestead Law, the Surviving Spouse gets a _________, and any , Minor Children take a _______.

Back 62

Life Estate; Vested Remainder

Front 63

The FL Constitution grants the Governor the authority to __________ in order to Balance the State Budget in each Fiscal Period.

Back 63

Establish Reductions in the Budget

Front 64

what are general laws

Back 64

General laws apply uniformly statewide to all persons or circumstances

Front 65

What are special laws?

Back 65

Special laws relate to or are designed to operate on known specific persons or things in a specifically indicated part of the state

requires: notice or approval by that county

Front 66

General law of local application

Back 66

a law that uses a classification scheme based upon population or some other criterion so its application is restricted to particular locations.

does not require notice or referendum - minum pop 50k max pop 100k

Front 67

Fl Crim Pro

Felony vs. Misdemeanors

Back 67

Felony: potential incarceration - more than a year

Misdemeanor - Potential incarceration up to a year
`

Front 68

Fl Crim Pro
Right to Counsel

Back 68

A right to counsel exists in most prosecutions
1. felonies
2. misdemeanors or ordinance violations punishable by incarceration
3. Juvenilia
4. the first direct appeal

Front 69

Fl Crim Pro
Waivers of Right to counsel

Back 69

Waiver must be done knowingly, intelligently, and voluntarily. D must also mentally competent to conduct trial proceedings,

Counsel must be offered again at each subsequent stage of the proceedings

Front 70

The FL Constitution provides "no person shall be Deprived of any Right because of _____, ______, ______, or _______.

Back 70

An arrested person who is not released must be taken before a judicial officer within 24 hours

Failure to comply with the 24 hour requirement entitles defendant to release but does not bar prosecution.

Its where must of the rights are spelled out for the D

Front 71

Fl Crim Pro
Pretrial Release

Back 71

A D may be released on recognizance, on monetary bond, into custody of a supervisory person, under restrictions to travel, or on conditions necessary to ensure appearance.

Front 72

Fl Crim Pro
A court may order pretail detention in most cases if the defendant

Back 72

1. has previously violated conditions of release
2. has threatened intimidated or injured any victim, potential witness, or judicial officer
3. is charged with trafficking in a controlled substance
4. Poses a threat to the community
5 .is charged with a DUI manslaughter or it is probable defendant committed the crime and poses a threat of harm to community
6. was on probation parole or other release
7. has violated one or more conditions of pretrial release or bond

Front 73

Fl Crim Pro
when may offenses be joined?

Back 73

OFFENSES MAY BE JOINED IN ONE INDICTMENT OR INFORMATION IF BASED ON THE SAME ACT OR TRANSACTION

Front 74

Fl Crim Pro
When may Defendants be Joined

Back 74

If each defendant is charged in each count; and if not there must be at least be a common count of conspiracy or an allegation that the various offenses are part of a common plan

Front 75

Fl Crim Pro
When may there be severance of offenses

Back 75

Directly and Rationally; Purpose

Front 76

Fl Crim Pro
When may there be severance of Defendants

Back 76

D or the state may move for severance of defendants if proper to fairly determine guilt or to ensure a speedy trail.

Front 77

What is the Florida's codification of Bruton law

Back 77

in situations where one defendants admissible statement implicates a co-def the state must choose beforehand among not using the statement at a joint trial, removing reference to the co-defendant and severing the trials.

Front 78

What is an Arraignment

Back 78

it is when the Defendants formal response in open court to the formal charges may be waived by entering a written plea of not guilty.

Front 79

What are the Grounds to disqualify a judge

Back 79

1. prejudice for or against a party
2. related within the third degree to a defendant or layer in the case
3. a material witness

if the motion is legally sufficient on **** face the first judge disqualifies herself automatically.

Front 80

When must a trail commence

Back 80

A trail must normally commence within 50 days of defendants demand for a speedy trial.

Where no demand is made - Misdemeanor 90 days Felony 175 days, retrials within 90 days of the mistrial.

Front 81

What is a demand for a speedy trail?

Back 81

an accused may file a demand for trial within 60 days at any times after formal charges are filed.
Defendants demand imports that she is available and will be prepared for trial within 5 days.

Failure to by the state to bring the defendant to trial within 50 days entitled defendant to file expiration of speedy trail time

Front 82

What is Expiration of speedy trial time

Back 82

If speedy trail rights are violated; upon D notice;

1. Court holds a hearing within 5 days
2. it may order defendant to be tried within 10 days if no excuse is shown
3. If D is not tried upon motion D will forever discharged unless the delay was through D fault.

Front 83

What is a the Victims right to speedy trial

Back 83

State may demand a speedy trail if
1. meet discovery obligations
2. court has granted three continuances on D
3. in Felony case it is not resolved within 125 days after the date of that formal charged were filed,

Front 84

When Entering a Death Sentence, the judge must:

Back 84

1) Make specific written findings of fact, which are reviewable on appeal
2) The jury's Recommendation to the judge (determined by majority vote) is Advisory only, and
3) Evidence may be admitted that would not be admissible at trial.

Front 85

In a Criminal Case, Failure to make Specific Objection to Jury Instructions (based on a faulty instruction or failure to give a certain instruction at the time)...

Back 85

Waives the Error.

Front 86

In Florida, Insanity is an Affirmative Defense which ______ must be proven by ____________.

Back 86

the Defendant; Clear and Convincing Evidence,

Front 87

When is Bail Not Available?

Back 87

1) Capital cases,
2) Defendant was been Previously Convicted of a Felony and her Civil Rights have Not been restored.
3) Defendant has a pending Felony Charge and there is Probable Cause that she Committed the Felony.

Front 88

Under the Melbourne Test, if a party making the Peremptory Challenge can show a ________ for the Strike, challenge will be upheld.

Back 88

Sex and Race-Neutral Reason

Front 89

What is Always the Order of Trial?

Back 89

1) State's Opening
2) Defendant's Opening
3) State's Case,
4) Defendant's Case,
5) State's Rebuttal,
6) State's Closing,
7) Defendant' Closing,
8) State's closing Rebuttal.

Front 90

A Defendant cannot Waive her Right to Counsel until:

Back 90

(1) The court has Advised of the Dangers of Self-representation;
(2) The court has determined that the she Understands, but has still Knowingly and Intelligently Refused; and
(3) It is done on Record (unless in writing before two witnesses, who will attest to the defendant's voluntary waiver)

Front 91

A Defendant May Withdraw his Guilty or No Contest Plea for only these reasons:

Back 91

(1) The Court lacks SMJ
(2) The Plea agreement was Violated
(3) The plea was Involuntary
(4) The Court committed a Sentencing error
(5) As otherwise provided by law.

Front 92

When determining Voluntariness of a Plea, the Judge must explain:

Back 92

1) The Nature of the Charge
2) The Maximum Possible Penalty, 3) The Mandatory Minimum Penalty

Front 93

What are the Requirements an Indictment or Information?

Back 93

(1) The Essential facts constituting the Offense charged, and a citation of the law;
(2) the Name of the accused, if known, or if not known, by description; and
(3) The Time and Place of the offense.

Front 94

every person charged with a felony is entitled to?

Back 94

No valid search warrant - post arrest probable cause determination. Entitled to a non-adversary probable cause determination with 48 hours with two additional 24 hour continuances for good cause by the state if in custody; if not 21 days.

A felony Def who has not been formally charged within 21 days of arrest is entitled to an adversary hearing to determine probable cause on all felony charges

Front 95

when is a defendant on pretrial release entitled to a probable cause hearing?

Back 95

if he files the motion within 21 days of his arrest and he can establish that his release conditions are significant restraint on his liberty

Front 96

What happens when a misdemeanor and felony are consolidated for timing purposes?

Back 96

the misdemeanor charge is governed by the same time period as the felony

Front 97

What happens if a D on bail fails to attend trial?

Back 97

A Def release on bail who does not voluntary attend trail does not prevent the court from continuing the trial

Front 98

When is a notice to appear available

Back 98

only in misdemeanors or county or municipal ordinances violations

Front 99

When must a Motion for new trial be filed?

Back 99

must be filed within 10 days after verdict

Front 100

What are the grounds for annulment?

Back 100

lack of consent
lack of capacity
no intent to be bound
bigamy or polygamy
incest
nonage
incurable physical impotence

Front 101

Is there alimony after an annulment?

Back 101

No, but during the pendecy of the proceedings temporarily alimony may be granted and equitable damages awarded

Front 102

How to establish jurisdiction for divorce

Back 102

one party must have been a resident of FL for 6 moths prior to filling.

Front 103

Where is the proper venue for Divorce proceedings?

Back 103

in the country in which the breach occurred the marriage last existed or one spouse lives

Front 104

What is the equitable distribution plan for divorce

Back 104

1. His Stuff - prior to marriage
2. Her Stuff prior to Marriage
3. Marital Assists - anything gained during the marriage

Front 105

what is bridge the gap alimony?

Back 105

to assist in the transition from being married to being single may not exceed two years may not be modified and terminates upon the death of either party or remarriage of the recipient

Front 106

what is rehabilitative alimony?

Back 106

awarded to assist a party in becoming self-supporting. Limited in amount and has a termination date May be modified or terminated if there is a substantial change in circumstances

Front 107

what is durational alimony?

Back 107

economic assistance for a set period of time, awarded when permanent alimony is inappropriate because the marriage was short or moderate duration. Terminates on death or remarriage.

Amount - substantial change
length - exceptional circumstances - cant exceeded the length of marriage

Front 108

What is permanet alimony

Back 108

provides for the needs of a party who lacks the financial ability to meet his or her own needs following dissolution. Court must show no other form of alimony is fair and reasonable

Front 109

What are the tiers of Marriage length

Back 109

Short - less than 7
Med- 7 to 17
Long 17+

Front 110

Home State Jurisdiction - Custody Enforcement

Back 110

A court has jurisdiction to intitally enter or modify a child custody or visitation order if the state
1. is the child's home state
or
2. was the child's home state within the past 6 months, and a parents still lives there

Front 111

what are the factors for the best interest of the child standard?

Back 111

1. encourage a close and continuing parent child relationship
2. division of parental responsibilities and tasks
3. desirability of maintaining continuity
4. geographic viability
5. moral fitness of the parents
6. mental and physical health of the parents
7. reasonable preference of the child
8. provide a consistent routine
9. abuse
10. protect the child from the ongoing litigation

Front 112

Statutory Requirements for a valid Will)

Back 112

(1) T of sound mind, and 18+ or emancipated
(2) will must be in writing
(3) T must sign will (liberal rule)
(4) at the end of the will (in time)
(5) in the presence of two witnesses (conscious presence)
(7) who sign in T's presence
(8) and in the presence of each other

Front 113

What is a holographic will and how are they handled?

Back 113

handwritten wills
SOME: holographic wills are allowed and would be entitled to probate IF in T's own handwriting and signed by T (requirement relaxed when will isn't typed)
FLORIDA and MOST:
do NOT recognize/give no "break" to handwritten wills (still need 2 witnesses to be valid)

Front 114

Does the order of signing matter?

Back 114

order of signing is immaterial if attestation ceremony is all part of one continuous, contemporaneous transaction

(although, normally T signs and then the witnesses)

Front 115

Discuss the presence requirement as applied to witnesses

Back 115

MINORITY:
"scope of vision" test = in presence = could see eachother sign if they were to look
MAJORITY:
"conscious presence" test - in presence = conscious of where eachother are and what eachother is doing
FLORIDA:
no case saying which view to adopt (to know both sides)

Front 116

Proof of Wills - Generally

Back 116

oath of any one attesting witness taken before circuit judge or court clerk

it witnesses cannot be located or are incompeten, oath of PR that he believes the writing to be the decedent's last will

Front 117

Self-Proved Wills - Generally

Back 117

at time will is signed by T and attesting witnesses (or some time thereafter, in T's lifetime), T and witnesses sign self-proving affidavit under oath before notary public

Affidavit recites all elements of due execution

Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) CONCLUSIVELY PRESUMED

Note: other issues are still open, but nobody can contest for want of formalities of execution

Note: witness' signature on the self-proving affidavit can be used to satisfy the "signed by two witnesses" requirement

Front 118

Revocation - Physical Act

Back 118

revocation by physical act requires:
(1) intent to revoke AND
(2) physical act

Physical Act: refers to "burned, torn, canceled, obliterated, or destroyed"

Front 119

Revocation - Sufficiency of Physical Act

Back 119

an act of revocation on on executed copy revokes all executed copies (cancelled)

Front 120

Revocation - Presumption if...

will in T's possession from tine of execution until death and found in mutilated condition after T's death

Back 120

Presumption --- T did mutilating with intent to revoke (will is presumptively revoked)

Front 121

Revocation - Presumption if...

Will last seen in T's possession and control, but not found after T's death.

Back 121

Reason it can't be found is that T destroyed with intent to revoke. (will is presumptively revoked)

Front 122

Revocation by a Physical Act of a Third Party (by proxy)

Back 122

revocation by another person must be:
(1) done at T's direction AND
(2) in T's presence

Front 123

How can you probate a will that has been destroyed?

Back 123

by satisfying "lost wills" statute:

(1) due execution must be proved by testimony of attesting witnesses
(2) contents must be clearly and distinctly proved by the testimony of at least 2 disinterested witnesses, a correct copy being the equivalent of one witness

Note: it doesnt have to be the same witnesses that signed the will

Front 124

Revocation by Inconsistency (with a codicil)

Back 124

where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together

BUT, to the extent of any inconsistent provisions, the later documents controls and thereby revokes by inconsistency the prior will

Front 125

Requirements of a Codicil

Back 125

must be executed in the same manner as the will in order to be valid

Front 126

Impact of Divorce on Will

Back 126

divorce or annulment following a will revokes ALL provisions in favor of the ex-spouse

construe the will as if the ex-spouse were dead

Front 127

Once a will is typed, can T strike through a portion and handwrite something else before signing?

Back 127

the change will NOT be given effect UNLESS:
(1) after the change, T re-executes the will (sign it with 2 witnesses) OR
(2) T re-publishes the will be codicil (change on will, write out intent on separate paper stating intent to change, sign that with 2 witnesses)

original will - not revoked --- FL: no partial revocation by physical act (only in its entirity...if intent is for partial revocation, then not revoked unless expressly done)

BOTTOM LINE:
line with change next to it shows partial revocation intent, but nothing is revoked

Front 128

Depedent Relative Revocation - Generally

Back 128

allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation

DRR will give you the next best thing to what T really wanted

STEPS:
(1) disregard a revoation (the destruction of 2nd will)
(2) because it was based on a mistake of law (that 1st one would be revived)
(3) provided the court thinks T would not have revoked 2nd will but for mistake

Front 129

Incorporation by Reference of an extrinsic document-
► Requirements

Back 129

(1) extrinsic document MUST BE IN EXISTENCE at time will was executed
(2) will must MANIFEST INTENT to incorporate the document
(3) will must "describe the writing sufficiently to permit its identification"

Front 130

Acts of Independent Significance Doctrine

4 Situations

Back 130

will may dispose of property by reference to acts and events having an independent significance apart from impact on property disposition.

► ID of Beneficiaries - "my employees at time of death"
► ID of property - "my house and its contents"
► Pour over of probate assets into Inter Vivos trust amended after will is executed
► Acts of another person - "remainder to charity indicated in my brother's will (OK even if not yet written)"

Front 131

Basic Lapse Rule

Back 131

(1) when a beneficiary named in the will or trust dies before the testator, the gift lapses and becomes PART OF RESIDUE, UNLESS SUBSTITUTE TAKERS ARE PROVIDED by state's anti-lapse statute.

Front 132

Anti-lapse statute:
► requirements
► When not applicable?

Back 132

►FL anti-lapse applies when the dead (or dead by law) beneficiary is T's grandparent OR LINEAL DESCENDENT OF THE GRANDPARENT
► Property goes to substitute taker under statute, NOT to predecedent's estate


► Anti-Lapse Statute does not apply if contrary to a provision in the will
► provision that says "$$$ to PD IF he survives me" --- is an explicit requirement: anti-lapse statute no longer applies, gift fails the will's terms, and is added to the residue

Front 133

Class Gift Rule

Back 133

when there is a gift by will to a class of persons generically described (the children of my friend X), and some class member predeceases the testator, and the lapse statute does not apply, the surviving class members take

Front 134

SPECIFIC DEVICE/BEQUEST

Back 134

gift of a specific asset and that asset only

Example:
(1) I devise Blackacre to my son John.

(2) how about my car or all of my bank accounts? specific too --- will speaks as of death

Front 135

DEMONSTRATIVE LEGACY

and example

Back 135

hybrid -- gift of pecuniary amount with instructions on where it shoudl come from

Example:
(1) I give the sum of $5,000, TO BE PAID OUT OF the proceeds of sale of my Acme stock, to my sister Sarah.

Front 136

GENERAL LEGACY

Back 136

gift of pecuniary amount

Example:
I give the sum of $10,000 to my daughter Donna

Front 137

RESIDUARY BEQUEST

Back 137

I give all the rest, residue, and remainder of my property to my wife, Agnes

Front 138

Order/Priority for Abatement - Generally

Back 138

when T's estate is partially insolvent, gifts are sacrificed to satisfy funeral expenses, expenses of administration, and creditors claims in this order:
(1) instestate property
(2) residuary bequest
(3) general legacy
(4) demonstrative legacy
(5) specific devise or bequest

Note: abatement rules also apply in satisfaction of elective and pretermitted shares

Front 139

ADEMPTION- Generally

Exemptions?

Back 139

if a specific device in a will is not a part of the estate during T's lifetime --- the gift is adeemed (and the person gets nothing). Partial ademptions exist too.

► if the specific device is for sale proceeds of item, gift is not adeemed if proceeds are traceable & part of the estate

► Interest in property as opposed to property itself -- e.g.: if device is of "my interest in Blackacre" then if Blackacre is sold in installments, Bene gets installments

Front 140

Ademption:
What is the special rule regarding bequests of securities?

Two examples?

Back 140

Courts will construe a bequest of securities as a general legacy if possible to avoid ademption

- a gift of 200 shares -- general, not adeemed
- a gift of my 200 shares -- specific, ADEEMED!

Front 141

Ademption -
Application to General Legacies
Application to Demonstrative Legacies

Back 141

► Ademption does NOT apply to general legacies (bequest of a specific dollar amount) If necessary, something must be sold to find the cash)

►does not apply to demonstrative legacies specify a general amount that identifies a particular asset as the primary source of payment; (it will be funded from other estate property instead)

Front 142

Latent Ambiguity

Back 142

extrinsic evidence IS admissible to clear up ambiguities, in the absence of clarifying evidence, the gift fails and passes with residuary estate

Front 143

Ambiguities and Mistakes - Plain Meaning Rule

Back 143

you cannot disturb the plain meaning of a will with extrinsic evidence

Front 144

Intestacy Rules

►Decedent Survived by Spouse

Back 144

►Decedent Survived by Spouse

(1) if survived by spouse but NO issue (lineal descendants) - spouse takes 100%
(2) if survived by spouse and issue all of whom are issue of the surviving spouse, spouse takes the first 60,000 plus 50% of any balance, issue take the rest
(3) if survived by spouse and issue at least one of whom ►is not an issue of surviving spouse, spouse takes 50% and isue take the rest (equally)

Note: as long as decedent survived by spouse OR lineal descendent, parents and collaterals NEVER take

Front 145

Intestacy Rules:

►Decedent NOT Survived by Spouse

Back 145

(1) all to issue, if any (equally)
(2) if no issue, to parents or survivor
(3) if no issue or parents, to parents' issue (siblings)
(4) if no issue, parents or issue of parents, 1/2 to paternal grandparents and their issue and 1/2 to maternal grandparents and their issue
(5) no inheritance beyond grandparents or issue of grandparents...instead, it escheats (no inheritence to anyone else, goes to state)

Front 146

Disclaimer of Inheritance

Back 146

not required to take the inheritence, if you are solvent, you can disclaim

a solvent heir or will beneficiary can disclaim his or her interest in a decedent's estate

disclaimer, which can be total or partial, results in property passing as though disclaimant predeceased decedent

disclaimer can be made by guardian of minor or incompetent, or by PR of a deceased person

NOTE: under the FL disclaimer statute, a disclaimer may occur at any time prior to acceptance of the interest...BUT, to be effective for tax purposes, the disclaimer must occur within 9 months after decedent's death (for minor beneficiaries, the disclaimer must be made within 9 months of attaining 21)

Front 147

Simultaneous Death Act - Rules (4)

Back 147

(1) WILLS - as though testator survived, as though beneficiary predeceased (generates lapse and potentially anti-lapse statute)
(2) INTESTACY - as though intestate survived and heir predeceased
(3) INSURANCE - as though insured survived, as though beneficiary predeceased (proceeds to alternate beneficiary)
(4) JOINT TENANCY WITH RIGHT OF SURVIVORSHIP - 1/2 as though tenant A survived, 1/2 as though tenant B survived

Note: simultaneous death prevents operation of right of survivorship, so 1/2 passes through each tenant's estate (treated like tenancy in common)

Front 148

Advancements of Inheritance -
►Intestate

Back 148

no gift is an advancement UNLESS
(1) declared as such in a contemporaneous writing by the decedent OR
(2) acknowledge as such in writing by the heir

Front 149

Rights of Surviving Spouse -
►Exempt Personal Property

Back 149

surviving spouse or minor children are entitled to tangible personal property (furniture, etc) up to $10,000 AND automobiles used as family autos (withotu limit as to value) UNLESS they were specifically devised to someone else

These items pass to the spouse or children free of creditors' claims, and are not considered part of the intestate or elective shares (just come right off the top)

BUT -- IF decedent was not survived by souse OR minor children, NO exempt personal property is set-aside, and these items are subject to creditors' claims

Front 150

Rights of Surviving Spouse -
►Homestead

Back 150

160 acres of land if rural, 1/2 acre if within limits of an incorporated city or town

Front 151

Rights of Surviving Spouse -
►Family Allowance

Back 151

up to $18,000 for support for surviving spouse or lineal heirs (ascendants and descendants) whom decedent was obligated to support (minor and incompetent children) or whom decedent was actually supporting (parents)

purpose is to provide support while assets tied up in probate

Front 152

Rights of Surviving Spouse -
►Calculation

Back 152

the homestead, exempt personal property set aside, and family allowance are OVER AND ABOVE (1) property given to spouse by will, (2) elective share award, or (3) intestate share of surviving spouse (or minor children)

Front 153

Spouse's Right to Claim Elective Share -
► Who has that right?
► How can you give up the right?

Back 153

(1) elective share is available to surviving spouse of decedents who die a domiciliary of FL

(2) right to elective share (also right as pretermitted spouse, intestate share, homestead, exempt personal property, family allowance) may be waived before or after marriage, with or without consideration, by written contract, agreement, or waiver
► fair disclosure of extent of estate required if waiver after marriage, but not if waiver is before marriage

Front 154

Estate Admnistration - Creditor's Claims - Order of Payment

Back 154

(1) expenses of administration
(2) funeral expenses up to $6,000
(3) medicaid claims and debts and taxes with preference under Federal law
(4) reasonable and necessary medical expenses for last 60 days
(5) family allowances
(6) child support arrearages
(7) post-death expenses of continuing decedent's business not to exceed assets of the business
(8) all other

Front 155

Spouse's Right to Claim Elective Share - Calculation

Back 155

elective share is 30% of the elective estate which includes the estate subject to administration (including real property situated outside FL) as well as the following:

ADD IN
(1) 1/2 of all property passing by right of survivorship (joint tenancy, tenancy by entireties)
(2) property in a revocable trust created by the decedent
(3) property in an irrevocable trust created by the decedent if the trustee can make distributions to the decedent
(4) gifts of $10,000 (per donee) made by the decedent within a year of death

SUBTRACT OUT
value of any property passing from the decedent to spouse by
(1) will,
(2) right of survivorship,
(3) as benficiary of a life insurance contract, or
(4) as beneficiary of an elective share trust (trust created by decedent for spouse's benefit)

Front 156

Procedure for making elective election
1) filed by
2) time for withdrawal
3) who may elect

Back 156

1) filed on or before the earlier of: date 6 months after service of notice of administration or 2 years after death (court can extend)

2) election may be withdrawn within 8 months after death and before court order

3) surviving spouse, her attorney, or guardian of her property or holder of durable power of attorney if she's incapacitated, Personal representative (SS died before electing) CANNOT elect.

Front 157

Unlike a Private Trust, an inter vivos Charitable Trust the Beneficiaries _________.

Back 157

must not be Specific.

Front 158

How does one create a Totten Trust?

Back 158

1) A Depositor places money in a account with instructions that, on the depositor's death, whatever is in that account will pass to a named beneficiary.
2) The Depositor remains the owner of the funds in the account
3) The Depositor may revoke at any time by withdrawing the funds.

Front 159

The Creation of a Valid Trust Includes:

Back 159

(1) a settlor,
(2) intent to create a trust,
(3) a trustee,
(4) a trust res and delivery of the res,
(5) ascertainable beneficiaries, and
(6) a valid purpose.
(7) Trusts of real property and testamentary trusts also require a writing

Front 160

The Settlor may not be both the sole _____ and the Sole ______ of a Trust

Back 160

Trustee; Beneficiary

Front 161

What are the elements of an express trust

Back 161

1. settlor with capacity to convey
2. a present intent to create a trust relationship
3. a competent trustee with duties
4. a definite beneficiary
5. the same person is not the sole trustee and sole beneficiary

Additionally there must be a present disposition in trust of specific property then owned by the settlor and the trust must have a valid trust purpose

Front 162

In FL, Discovery is Liberal, matters need not be ________, just ______ or __________ to Lead to Relevant or Admissible Material.

Back 162

Admissible at Trial; Relevant or Reasonably Calculated to

Front 163

A PL may file a motion for Summary Judgment Not before ________ after commencement of the Action; a Defendant may move _______.

Back 163

20 days; at any time.

Front 164

A Defendant must respond to a Complaint within _____ days.

Back 164

20

Front 165

All Civil Juries are composed of _____ people, unless it is a Condemnation Case.

Back 165

6

Front 166

If a party Moves to Disqualify a Judge, the Judge shall Determine only the ________ of the Motion, and it must be Filed within ________ after Discovery of Grounds.

Back 166

Legal Sufficiency; Reasonable time or 10 days.

Front 167

A Deposition can be used as Substantive Evidence in a Trial if he is _________.

Back 167

an Expert.

Front 168

In FL, Attorney Work Product is Generally Inadmissible, except:

Back 168

for Impeachment Purposes.

Front 169

A Court may not hear a Motion to Set Aside the Verdict unless that party made previous made a Motion for ________ at Trial.

Back 169

Directed Verdict

Front 170

In an Expedited Trial, all Discovery must be Completed within ______ of the court entering an Order adopting the Joint Stipulation, and the case must be tried in ____ days.

Back 170

60 days; 1

Front 171

A Defendant may raise Dismissal for Lack of Personal jurisdiction or Venue either in:

Back 171

1) pre-answer motion,
2) the answer, or
3) an amendment to Answer.

Front 172

Venue on a Non-resident of the State is Proper in the County where _________.

Back 172

Service is Made.

Front 173

A Court may Relieve a Party from a Judgment, upon Motion, within One year of judgment for:

Back 173

1) mistake, inadvertence, surprise or excusable neglect;
2) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial;
or 3) fraud, misrepresentation, or other misconduct of the adverse party.

Front 174

A Motions for a New Trial must be made within ______ days of the Verdict.

Back 174

10

Front 175

The Dividing Line between County and Circuit Courts is ________; and Causes of Action may be Combined in Circuit Court if they _________.

Back 175

$15,000; Arise from the Same Action.

Front 176

To be a Juror in FL, a Person must be:

Back 176

1) a U.S. citizen;
2) a resident of Florida in the county where the Trial is held;
3) over the age of 18; and
4) Have a FL Driver's License,

Front 177

A _______ is a claim by one party against a co-party.

Back 177

Cross-Claim

Front 178

In an action in which there has been no "Record Activity" for a period of _______, any Party may Serve Notice that no activity has occurred and if nothing occurs within the ______ following the notice, case is Dismissed.

Back 178

10 Months; 60 days

Front 179

A PL may move for SJ _________ after Commencement of the action; a Defendant may move for SJ __________.

Back 179

20 days; at any time.

Front 180

If a Party files a Proposal of Settlement, it must be filed at least _______ after Service/Commencement of the action and at least ______ before Trial.

Back 180

90 days; 45 days

Front 181

A party may Amend a pleading (including a complaint) ONCE _________ before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted or it is not put on calendar, within _______ after it is served.

Back 181

at any time; 20 days

Front 182

A motion for change of venue must:

Back 182

1) Be accompanied by 2 signed affidavits (in addition to that of the person requesting the change of venue)
2) The attorney must certify that the motion is made in good faith.
3) Be filed no fewer than 10 days from the date of trial

Front 183

Affirmative Defenses (e.g., accord and satisfaction, duress, estoppel, fraud, etc.) must be raised in the party's _____ or _______ or else they are Waived.

Back 183

Answer; Reply

Front 184

In FL, what are the 4 standard prerequisites for certifying a class action:

Back 184

1) numerosity,
2) commonality,
3) typicality,
4) adequacy, and....
either: (A) risk of inconsistent judgments or judgments that impede the interests of others in the class; or (B) the defendant party has acted that are applicable to the class; or (C) common questions predominate over individual questions.

Front 185

What is a compulsory counterclaim?

Back 185

comes from the same traction or occurrence as the opposing party's claim, must be filed in this case

Front 186

What is a permissive counterclaim

Back 186

does not arise from the same T or O as the claimants claim, does not have to be filed here

Front 187

What is a cross claim?

Back 187

a claim against a coparty, must have the same T/O

Front 188

What are interrogatories?

Back 188

questions propounded in writing by a party to another party to be answers in writing under oath within 30 days after service. Can only ask 30 of them

Front 189

Time limits on requests to produce

Back 189

must respond in writing within 30 days.

Front 190

Physical or mental exam in Civil Court?

Back 190

available without a court order if phsyical condition of the party is in contrversity. Must respond within 30 days

Front 191

Joinder of Necessary and indispensable parties?

Back 191

ought to be joined because they ahve some relationship with the action
1. If necessary without absentee court may not be able to accord complete relief or the absentees interest may be harmed if she isnt joined the court SHOULD ORDER JOINED OF THE PARTY

if a party cannot be joined either dismiss the whole case or proceed without

Front 192

What is intervention?

Back 192

when an absentee wants to join a pending suit allowed in the discretion of the court

Front 193

What is impleader?

Back 193

a defending party adds a new party. TPD - to be liable to the defending for all or part of the underlying claim

Front 194

What is interpleader

Back 194

this is a device by which one holding money or other property can force all potential claimants into a single lawsuit. The idea is to avoid multiple litigation and possibility of inconsistent results

Front 195

Florida Holdover Tenant

Back 195

Florida law does not allow the landlord to impose a new periodic tenancy. The landlord can collect double rent for the period of the holdover

Front 196

Florida Law Residential Tenant Abandons

Back 196

if the tenant abandons and the landlord does not retake the leased premises then the landlord may standby and do nothing and continue to hold the tenant liable for the rent as it comes due.

If he does go in and retake then he is subject to the Majority rule, and must mitigate his damages

Front 197

What is the Statutory Period for Adverse Possession in FL

Back 197

7 years

Front 198

Fl Con Law
Exemptions from access to Public Records Requires

Back 198

1. The law states with specificity the public necessity justifying the exemption
2. is no broader than is necessary to accomplish the stated purpose.