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415 Cards in this Set

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What are the elements of accomplice liability?

What is an accomplice liable for?

NY rule regarding accomplice's testimony against other participant?
1. Aiding, abetting, and counseling the crime--active aiding required. Mere presence not enough, even if by presence D seems to be consenting to the crime, or even if D fails to notify police.
2. Liability: the crime itself and all other foreseeable crimes.
*NY* need more than accomplice's testimony to convict
Defenses to accomplice liability.
1) Withdrawal, Affirmative Defense
2) Accessory After the Fact (helping someone escape is a separate lesser charge, and you're not liable for crime itself)
MS: is withdrawal a defense to the inchoate crimes?
In general, on the MS, withdrawal is NOT a defense to the inchoate crimes.
What are the inchoate offenses?
1) Solicitation
2) Conspiracy
3) Attempt
What are the elements of Solicitation?
Element: asking someone to commit a crime (note, refusal or legal incapacity of the solicitee is NO DEFENSE)
What are the elements of Conspiracy?
1) an agreement
2) intent to agree
3) attempt to achieve the unlawful purpose or object of the agreement
4) NY: overt act in the direction of the crime
Who is liable for a conspiracy?
1) each conspirator is liable for all crimes of co-cons if foreseeable & in furtherance of conspiracy
2) NY - mere conspiring w/o participation doesn't create liab for substantive offense committed by co-con
3) NY - can be convicted even if all other parties to agreement can't due to legal impediments
Defenses to conspiracy?
1) no "impossibility defense"
2) no withdrawal possible, b/c agreement + act = crime
3) no merger, i.e., can be convicted of conspiracy to rob and robbery
4) NY - affirmative defense: must voluntarily renounce and prevent crime
Elements of attempt?

Special NY rule for attempt?
Element: specific intent
*NY* must come "very near" or "dangerously near" completion of intended crime
Defenses to attempt? (MS)
1) Factual impossibility is not a defense
2) LEGAL IMPOSSIBILITY is a defense (it's not a crime to do that which defendant attempted to do)
3) Abandonment is not a defense
What are the elements of NDF self-defense?

What is the special rule in NY?
NDF - a vic may use NDF in self-defense if he reasonably believes force is about to be used on him.
*NY* ...unless defender was orig aggressor or provoked use of force or unlawful combat agreement
What are the elements of DF self-defense?
Victim can use DF in SD any time victim believes DF is about to be used on him
1) never for defense of prop
2) NY requires retreat if safe to do so b4 resorting to DF...no duty to retreat in own home, if preventing rape, kidnapping, arson, burglary, or sodomy, or making lawful arrest
DF in self-defense by original aggressor
Withdraw and communicate that withdrawal to original victim.
Use of DF to arrest
officer must reasonably believe suspect armed or presents a danger to public
What if fact-finder finds no right to self-defense?
Voluntary manslaughter
Affirmative defense of insanity. (NY)
*NY* Due to mental disease/defect at time of crime committed, def lacked capacity to know: nature and consequence of conduct, or that such conduct is wrong
Intoxication
Not a defense, but may negate intent
Entrapment...elements? (NY)
*NY* Affirmative Defense
1) Criminal design originated with authorities, and
2) Def was not predisposed to commit crime
(Govt may introduce def's past crimes during case in chief to assert def was predisposed to commit crime)
Duress in NY?
Affirmative defense applicable to all crimes.
NY Homicide: 1st Degree Murder
Intentional Murder with Special Circumstances:
1) Intended vic was a police officer, engaged in official duties, and perp knew
2) def was serving life sentence or escaped from life sentence at time of killing
3) intended vic was a witness/family member of witness to crime
4) murder for hire
5) vic was intentionally killed during killer's flight from robbery, 1st or 2nd burg, kidnapping, 1st or 2nd arson, rape, sodomy, sexual abuse, escape, or attempted murder in 2nd
6) during an intentional killing, def kills additional persons or recidivism
7) torture murder
8) serial murder (24 mo rule)
9) vic killed b/c was a judge
Intentional 2nd Degree Murder in NY: elements?
1) intent to cause death
2) causes death
There are 3 forms of 2nd Degree Murder in New York
1) Intentional Murder (other than 1st Degree)
2) Highly Reckless Murder
3) Felony Murder
Felony murder in NY: elements?
1) vic was unintentionally killed by def/accomplice during or fleeing from:
burglary, robbery, arson, kidnapping, rape, sodomy, aggravated sexual abuse, escape
Affirmative defenses to Intentional 2nd Degree Murder in NY
1) Extreme emotional distrubance (heat of passion)
2) Aiding a suicide
Elements of First Degree Manslaughter in NY?
1) serious bodily harm resulting in death
2) heat of passion
Elements of 2nd Degree Manslaughter (involuntary) in NY?

Is intoxication a defense?
Reckless - intoxication no defense.
NY - Elements of criminally negligent homicide (involuntary)
1) causing the death of another due to failure to perceive a substantial & unjustifiable risk of death.
2) defendant's conduct was culpable (failure to preceive risk is not enough)
3) death producing event must have been foreseeable

* generally applies to negligent driving of autos
1st Degree Burglary in NY: elements?
1) Knowlingly entering/ remaining in dwelling
2) with intent to commit crime, and
3) def injures a nonparticipant or threatens with dangerous weapon
Specific Intent Crimes
Battery
Assault
False Pretenses
Forgery
Larceny
Embezzlement

Solicitation
Conspiracy
Attempt
Robbery
First Degree Murder
BAFFLE SCARF
Conspiracy: elements
Intent
Agreement
Attempt to pursue criminal objective (overt act)?
3 elements
MS: Is withdrawal a defense to the conspiracy?
In general, withdrawal from the conspiracy is NOT a defense, because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed.

Withdrawal MAY be a defense to crimes committed in furtherance of the conspiracy, including the substantive target crime of the conspiracy.

To withdraw, conspirator must perform an affirmative act that notifies all members of the conspiracy of her withdrawal. Notice must be given in time for members to abandon their plans. If she has assisted as an accomplice, she must try to neutralize this assistance
Attempt: elements
Intent
Substantial step in furtherance of the crime.
2 elements
M'Naughten
Defendant is entitled to acquittal only if he had a mental disease or defect that caused him to either:
1) not know his act was wrong, or
2) not understand the nature and quality of his actions.
Irresistable impulse
at the time of the conduct, defendant lacked capacity for self-control and free choice
Durham rule
(NH & DC) defendant’s conduct was a product of his mental illness
MPC Definition of Insanity
at the time of his conduct, defendant lacked ability to conform his conduct to the requirements of the law
NY Definition of Insanity (crim)
A person is not criminally responsible for conduct if, at the time of the conduct, as a result of mental disease or defect, he lacked capacity to know or appreciate either the nature and consequence of such conduct or that such conduct was wrong
(NOTE: once raised, defendant may not refuse to submit to a psych exam by prosecution on 5thA grounds)
NY Infancy (crim law)
Infancy is a defense subject to statutory exceptions:
• Age 13-15, may be prosecuted for 2nd Deg Murder
• Age 14-15, responsible for serious offenses against persons or property

Except for the above, a defendant age 7-16 who commits a crime (misdemeanor or felony) is subject exclusively to family court juridsiction as a juvenile defendant
MS Infancy (crim)
under 7, no liability
under 14, rebuttable presumption of no liability
7 rule
NY is a retreat jurisdiction
Victims are required to retreat to the wall if it’s safe to do so, before using DF. 3 exceptions:
(1) no retreat necessary out of one’s own home;
(2) if victim of rape or robbery, don’t have to retreat;
(3) police officers have no duty to retreat
When, if ever, should you give SD to an original aggressor?
Only if the original aggressor (1) withdraws, and once he’s properly withdraws (by retreat?) he (2) communicates to the other party that he’s withdrawn, i.e., “I’m all done here, I don’t intend to do anything else”
When can deadly force be used to defend only property?
NEVER
Spring-loaded gun
Who bears the burden (pla or def) and what is the standard for proving affirmative defenses in NY (crim law)
Must be raised and proven by a preponderance of evidence by the defendant.
Who has the burden?
Two theories of assault
assault as attempted battery
assault as a threat
Larceny: elements
(1) a taking
(2) wrongful taking by trespass or trick (a.k.a., stealing)
(3) carry away
(4) personal property of another
(5) no consent
(6) with intent to deprive owner permanently of his interest in property
Embezzlement
• Embezzler always has (1) lawful possession, then (2) illegal conversion (i.e., trustee)
False pretenses (crim)
• Defendant persuades owner to convey title by false pretenses
Robbery: elements
• Robbery = larceny + assault
• Elements:
(1) take property from person or presence
(2) against the person’s will
(3) by violence or fear of imminent harm, i.e., “Your money or your life!”
MS Burglary: elements
breaking
entering
dwelling of another
intent to commit felony
at night
MS Arson: elements
malicious burning of
the dwelling of
another
(must be material wasting; charred, not scorched)
3 elements
What does Article III of the US Constitution define?
Powers of the courts; federal judicial power
Requirements for cases & controversies
Standing, ripesness, mootness, political question doctrine
there are 4
Can the courts issue advisory opinions?
No.
Describe injury in terms of standing.
Plaintiff has been or imminently will be injured. TIP: usually the best standing is a plaintif who has personally suffered an economic loss.
When is third party standing permissible?
1) close relationship (ie, doctor-patient)
2) injured third party is unlikely to assert his rights (ie, crim defs have standing to raise claims about jury discrimination)
3) Associational Standing - organization can sue on behalf of members
there are 3
What are the requirements for associational standing?
1) injury in fact to members that gives them a right to individually sue
2) injury is related to organization's purpose
3) individual member participation in lawsuit unnecessary
there are 3
When to taxpayers have standing to challenge?
In generally, the plaintiff may not be suing solely as "taxpayer" or "citizen." But, a taxpayer has standing to challenge government spending that violates the Establishment Clause (spending $$, not property)
$$ & religion
May a court grant pre-enforcement review of a statute or regulation?
In general, no--ripeness doctrine. However, the court will consider (1) the hardship that will be suffered w/o pre-enforcement review, and (2) the fitness of the issues and the record for judicial review.l
2 issues
Exceptions to mootness doctrine?
(1) wrong capable of repetition but evading review
(2) voluntary cessation
(3) class action suits
there are 3
What are considered political questions?
1) "republican form of government" clause
2) challenges to pres's conduct of foreign policy
3) challenges to impeachment & removal process
4) challenges to partisan gerrymandering
there are 4
Final Judgment Rule
USSC will not do "interlocutory appeals." The USSC will only hear the case after final judgment.
Sovereign immunity
11th A bars suits by private parties or foreign governments against state governments in federal courts.

Sovereign immunity bars suits against states in state courts or federal agencies, even on federal claims, unless defendant state consents.
Congress' police powers.
In general, there is no federal police power--only the states have police power, and Congress needs authority to act. Congress has police power for "MILD"
-Military
-Indian reservations
-Federal lands and territories
-District of Columbia
4 exceptions to general rule
Necessary & Proper Clause
Congress can adopt all laws necessary and proper to carry out its authority.
Taxing & Spending Power
Congress may tax and spend for the "general welfare."
Commerce Power
Congress has authority to regulate commerce with foreign nations, for Indian tribes, and among the states.
What can Congress regulate under the Commerce Clause?
1) channels of interstate commerce (places where commerce occurs)
2) instrumentalities of interstate commerce (trucks, planes, internet)
3) persons & things in interstate commerce
4) activities that have a substantial effect on interstate commerce
PICTS
Limits on Congress' ability to delegate legislative power.
In general, there are no limits on Congress' power to delegate. Legislative power may be delegated ot executive or judicial branch as long as intelligible standards are set and whe power is not uniqu
What must occur for Congress to act?
Bicameralism (passage in House & Senate) and
Presentment (to President for signature or veto)
Legislative veto
Unconstitutional.
A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism or presentment.
Line item veto
Unconstitutional.
Attempt by President to veto part of a bill while signing the rest into law.
Definition of "Treaty"
Agreement between US and foreign country; negotiated by president; must be ratified by Senate.
Treaty and state law.
Treaty prevails
Treaty and federal law
Whichever was adopted more recently prevails.
Treaty and US Con
Constitution always trumps.
Executive agreement.
Agreement between US and foreign country; effective when signed by President and head of foreign nation.
Exec agreement and state law.
Exec agreement wins.
Exec agreement and federal law or US Con
Con or fed law wins.
Who does President appoint?
Ambassadors, federal judges, and officers of congress.

Congress may give power to appoint inferior officers to Pres, heads of depts, or lower fed cts.
Who does President remove?
Pres may fire any executive branch officer.

For Congress to limit removal power, it must be an officer where independence from the President is desirable.
Can Congress prohibit President's removal?
Only if there was no good cause.
For what can Pres, VP, fed judges, and officers be impeached and removed?
Treason, bribery, high crimes & misdemeanors,
What else do you need besides impeachment for removal?
Conviction by 2/3 of Senate.
What is required for impeachment?
Impeachment by House requires a majority vote.
President's immunity to civil suits for money damages.
Pres has absolute immunity to civil suits for money damages for actions which took place while in office.
Executive Privilege
must yield to other important governmental interests
Presidential power to pardon
Pres may pardon those accused or convicted of federal criminal acts.
Supremacy Clause
The Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
States & taxes
States may not tax or regulate federal governmental activity.
Dormant Commerce Clause
State & local laws are uncon if they place an undue burden on interstate commerce.
"negative implications of the Commerce Clause"
Privileges & Immunities Clause of Art. IV
No state may deny citizens of another state the privileges and immunities it affords its own citizens.
DCC / PIC analysis...does the law discriminate against OOS'ers?
NO: PIC doesn't apply...DCC violated if law's burdens exceed its benefits.
YES: PIC violated unless law is necesary to achieve an important government purpose....DCC violated unless law is necessary to achieve an important government purpose.
Exceptions to DCC violations
(1) Congress consents to discrimination.
(2) market participation exception
Market Participation Exception to DCC violations?
A state or local government may prefer its own citizens in receiving benefits from government programs or in deaing with government owned businesses.
Limits on state taxes
1) can't be used to help in-state businesses
2) can only be used if there is a substantial nexus (significant connection) to the state
3) taxation of interstate business must be fairly apportioned
Situations where private conduct must comply with the Constitution.
1) public function exception (running elections, running towns)
2) entanglement exception (when government authorizes, encourages, or facilitates unconstitutional activity)
Application of Bill of Rights
Applies directly only to Federal Government. Applies to state and local governments indirectly by incorporation of the Due Process Clause of the 14th Amendment.
Exceptions to incorporation of Bill of Rights
2ndA right to bear arms
3rdA right not to have soldiers
5thA right to grand jury in criminal cases
7thA right to jury trial in civil cases
8thA right against excessive fines
Levels of Scrutiny
Rational Basis
Intermediate Scrutiny
Strict Scrutiny
there are 3
Rational Basis Test
Law will be upheld if rationally related to a legitimate government purpose.
Intermediate Scrutiny
Law will be upheld if it is substantially related to an important government purpose.

Means must be narrowly tailored.
Strict Scrutiny
Law will be upheld if necessary to achieve a compelling government purpose.

Means must be least restrictive.
Due Process
Neither the fed nor state government may deprive anyone of life, liberty, or property, without due process of law.
Before welfare benefits can be terminated
need notice and hearing
When SS disability benefits are terminated,
need only be a post termination hearing.
Before parental rights can be terminated
need notice & hearing.
What is the core of procedural due process?
Has the government deprived a person of life, liberty (freedom), or property (entitlement)
What is the core of substantive due process?
Does the government have an adequate reason for depriving someone of life, liberty, or property?
Two concerns of substantive due process
1) Economic liberties
2) Individual privacy
What test is used for laws affecting economic rights?
Rational basis test.
What is the basis of the Takings Clause?
Government can take private property for public use if it provides just compensation.
Two types of takings
Possessory (physical) or regulatory (leaves no reasonably economically viable use of the property)
Government conditions on development as takings
Must be justified by a benefit that is roughly proportionate to the burden imposed, otherwise it's a taking.
What is the basis of the Contracts Clause?
No state shall impair the obligations of contracts (...by regulations / legislation)
What level of scrutiny is used for Contracts Clause interference?
Intermediate scrutiny (but not traditional)
1) Does the legislation substantially impair the party's rights under an existing K?
2) If YES, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
What level of scrutiny is used for state or local interference with government contracts?
Strict scrutiny--state and local government can abrogate their own Ks only if strict scrutiny is met.
PRIVACY
Is a fundamental right, protected under "liberty" of the substantive due process clause.
What level of scrutiny is used when the government interferes with a privacy right?
Strict scrutiny.
Examples of privacy
1) right to marry
2) right to procreate
3) right to custody of kids
4) right to keep family together
5) right to contraception
6) right to abortion*
7) right to privacy (homosexual activity)
8) right to refuse medical treatment
Is the right to physician-assisted suicide considered a fundamental right of privacy?
No
Special level of scrutiny for abortion.
Viability test
1) prior to viability, states may not prohibit, but may regulate so long as they do not create undue burden
2) after viability, states may prohibit unless necessary to protect woman's life / health
Other rights triggering strict scrutiny.
Right to travel, right to vote, freedom of speech, freedom of association, free exercise of religion (so long as burdening law is not a neugral law of general applicabilty)
Approach to equal protection questions
1) What is the classification?
2) What level of scrutiny should be applied?
3) Does this law meet the level of scrutiny?
Equal protection, strict scrutiny:
Race & National Origin

Aleinage (sometimes)
Equal protection, intermediate scrutiny
Gender

Discrimination against non-marital children.
When will gender discrimination be allowed?
Only if it meets intermediate scrutiny test, and only if there's an exceedingly persuasive justification for the law.
Alienage and equal protection
In general, strict scrutiny.

Rational basis test is used for alienage classifications that concern self-government and the democratic process (voting, jury, police officer, teacher, probation officer).

Rational basis used for Congress' discrimination against aliens (plenary power to regulate immigration).

Intermediate scrutiny used for discrimination against undocumented alien children.
All other types of discrimination use rational basis review, such as:
Age discrim, disability discrim, wealth/poverty discrim, economic regulations, sexual orientation discrim
Right to travel, what level of scrutiny?
Laws that preent people from moving into a state must meet strict scrutiny.

Durational residence requirements must meet strict scrutiny.

Restrictions on foreign travel must meet rational basis test.
Right to vote, what level of scrutiny?
Laws that deny some citizens the right to vote must meet strict scrutiny.

One person, one vote.

Use of race in drawing election lines to benefit minorities must meet strict scrutiny.

Counting uncounted votes without standards violates equal protection.
Two types of restrictions on speech.
Content-based and content-neutral.
What level of scrutiny must content-based restrictions meet?
Generally, strict scrutiny.
What types of restrictions are content-based?
Viewpoint resrictions and subject matter restrictions.
What level of scrutiny must content-neutral restrictions meet?
Generally, intermediate scrutiny.
What are prior restraints?
Prior restraints prevent speech before it occurs, rather than punish it afterwards--rarely allowed.
What level of scrutiny must prior restraints meet?
Court orders supressing speech must meet strict scrutiny.

The govt can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.
Vagueness and overbreath (con law)
If a statute does not specify in sufficient detail the prohibited conduct, it is overbroad or vague (generalized "inciteful behavior" or "fighting words" laws are unconstitutionally vague and overbroad)
When can government regulate symbolic speech?
If government's interest in regulating is important and unrelated to suppression of themessage, and if impact on communication is no greater than necessary to achieve government's purpose.
What types of symbolic speech are protected?
Flag burning, burning a cross so long as it's not a threat
What types of symbolic speech are unprotected?
Draft card burning, nude dancing
Election campaign spending limits...?
Contribution limits are constitutional;
Expenditure limits are unconstitutional
Is anonymous speech protected under 1st A?
Yes...people have a 1st A right to speak anonymously without exposing their identity.
Less protected and unprotected speech?
Incitement of illegal activity, obscenity and sexually-oriented speech, commercial speech, defamation, government secrets which government intends to limit access to
When can government punish incitement of illegal activity?
If there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
What is the test for obscene?
1) The material must appeal to the prurient (shameful or morbid) interest.
2) the material must be patently offensive under the law prohibiting obscenity
3) taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (on a national standard)
What must defendant do to be guilty of possesion of obscene articles?
Def must possess the material with intent to promote.

NY: a person who has six or more identical or similar obscene articles is presumed to possess with intent to promote.

"Private use" defense - def must conclusively show that he possessed the material for private use.
May government punish private possession of obscene materials?
No, except for child pornography.
Is profane and indecent speech protected by the 1stA?
Generally, YES.
Exceptions: over free broadcast media, and in school
Are false/deceptive ads protected by 1stA?
No...government can prohibit / punish false and deceptive ads, and those which promote criminal activity.
Is defamation protected by the 1stA?
In general, no.
What are the categories of plaintiffs in defamation suits?
Public offical
Public figure
Private figure, matter of public importance
Private figure, no public interest
What must a public offical plaintiff in a defamation suit prove?
By clear and convincing evidence, the falsity of the statement and actual malice.
What is "malice" in defamation?
Defendant knew statement was false or acted with reckless disregard for the truth.
What must a public figure plaintiff in a defamation suit prove?
By clear and convincing evidence, the falsity of the statement and actual malice.
What must a private figure, public importance plaintif prove in defamation suit?
Plaintiff must prove falsity and negligence by defendant.

However, plaintiff may recover presumed or punitive damages only by showing of actual malice.
What must a private figure, no public importance plaintif prove in defamation suit?
Plaintiff can recover presumed or punitive damages without showing actual malice.
What places are available for speech?
Public forums and limited public forums. Non-public and private forums are not available for speech.
To regulate speech in a public forum, what standard must regulations meet?
Regulations must be subject matter and viewpoint neutral, and if not, strict scrutiny must be met.
What may government regulate in public forums?
Time, place, or manner must serve an important government interest, and must leave open adequate alternatives.
What standard must government meet to regulate speech in non-public forums?
Rational basis test--regulation must be reasoanble and viewpoint neutral.
What are examples of non-public forums?
Military bases, areas outside prisons/jails, advertising space on city buses, sidewalks on post office property, airports
What level of scrutiny must laws that prohibit or punish group membership meet?
Strict scrutiny--freedom of association.
What must be met to punish membership in a group?
1) active affiliation,
2) knowing of groups illegal activities,
3) specific intent to further illegal activities.
What level of scrutiny must laws require disclosure of group membership meet?
Where such disclosure would chill association, strict scrutiny.
Are laws that prohibit a group from discriminating constitutional?
Yes, unless they target intimate exceptions (dinner parties) or expressive activity (Nazi party membership)
Can the free exercise clause be used to challenge a neutral law of general applicability?
No
Test for establishment clause violations:
The government violates the establishment clause if it fails any prong:
1) secular purpose for the law
2) effect of law must neither advance nor inhibit religion
3) no excessive entanglement with religion
What level of scrutiny must government meet when it discriminates against religious speech or among religions?
Strict scrutiny.
When does equal protection apply?
Equal protection applies where a statute or governmental action treats similar people in a dissimilar manner (i.e., classifies people)
Which privileges and immunities are covered by the 14thA?
The privileges and immunities covered by the 14thA are those attributes peculiar to United States citizenship (e.g., the right to petition Congress for redress or the right to vote for federal officers)
When will a federal court step in to enjoin a state court proceeding?
Fed cts generally will not enjoin pending state criminal proceedings, even if they have jurd. For purposes of this rule, a case is deemed to be pending as soon as it is filed.
Exception: fed cts will hear an action to enjoin a pending state court prosecution if it is being conducted in bad faith; e.g., merely to harass the defendant.
Which laws govern wills & estates in New York?
1) Estates Powers & Trust Law (EPTL)
2) Surrogate's Court Procedure Act (SCPA)
3) Uniform Simultaneous Death Act (USDA)
There are 3...
Definition of "decedent"
Dead person
Definition of "intestate"
Without a will
Definition of "testator"
Dead person who died with a will.
Definition of "administration proceeding"
A proceeding to appoint a personal representative, a.k.a., "administrator," to administer the estate of a person who dies intestate.
Definition of "executor"
Person who administers the estate of a person who dies testate (usually, the executor is named in the will).
Definition of "probate proceeding"
Proceeding to administer the property of a person who dies testate.
Definition of "probate assets"
Assets held in the decedent's name alone, that do not pass by operation of law, and that which the executor administers in accordance with the decedent's will.
Definition of "operation of law"
Property that passes automatically because of the way the property's title is held (not affected by existence of will or intestacy)
3 ways property can pass:
1) laws of intestacy
2) by will
3) by operation of law
Definition of "issue"
All persons who have descended from a common ancestor (synonymous with "descendants")
Definition of "distributees"
Those individuals who inherit property under intestate succession.
Definition of "beneficiaries"
Those individuals who receive a bequest (real property) under a will (bequest, a.k.a., legacy or devise)
Definition of "residuary estate"
The balance of the testator's estate after all claims, taxes, and particular bequests have been distributed...aka, "the rest and residue of my estate"
Definition of "class gift"
Gift to a group, ie, "all my children"
When does intestacy law apply?
1) no will
2) partial intestacy (will doesn't make complete disposition of estate)
3) probate denied due to successful will challenge
3
Order of priority for appointment as administrator.
1) surviving spouse
2) children
3) grandchildren
4) parents
5) siblings
6) any other distributee
Intestate decedent, survived by spouse, no children/issue
Surviving spouse takes whole estate.
Intestate decedent, survived by spouse and children/issue
1) if estate < $50k, spouse takes whole estate
2) if estate > $50k, spouse takes first $50k, then 1/2 remaining estate, and the other 1/2 goes to the children/issue by representation per capita at each generation
Intestate decedent, not survived by spouse or issue
1) parents or surviving parent
2) if none, issue of parents
3) if none, grandparents
4) if none, issue of grandparents
When is a spouse disqualified from taking an intestate share?
D - Divorce
I - Invalid divorce, procured by surviving spouse
S - separation agreement against surviving spouse
M - marriage is void (incestuous/bigamous)
AL - abandonment or lack of support

If any of these happen, treat the surviving spouse as if s/he had predeceased the dead spouse, and drop their share to their issue
DISMAL
Who do adopted children inherit from?
Adopting family.
Who don't adopted children inherit from?
Biological family, except in cases where child is adopted by a spouse of a biological parent (ie, dad dies, mom remarries, and stepdad adopts child)...then, child inherits from both adopting and biological family.
Special rule for children adopted by family members.
1) if child is related to decedent by both a natural and an adopted relationship, the child inherits under the natural relationship only, unless decedent was the adoptive parent, and then the child inherits under the adoptive relationship only.
Class gifts and "adopted out child"
An adopted child only takes as a beneficiary of a class gift made in the will of a natural family member if the child was adopted by another family member.
When can a non-marital child inherit via the biological father?
Only if paternity is established by:
1) legitimate marriage after birth
2) Order of Filiation in paternity suit
3) Father files affidavit of paternity with Putative Father Registry (witnessed, ack'd before notary)
4) Paternity estab'd in probate proceeding, by (i) clear & convincing evidence (ie, participation in school activities) and (ii) open & notorious acknowledgement of child as his own, or
5) blood genetic market test, plus clear & convincing evidence
5 ways
Definition of "advancement" (wills)
A lifetime gift to an intestate distributee that is in partial or total satisfaction of a later distribution.
NY rule for advancements (wills)
In NY, there is NO ADVANCEMENT unless proved by 1) a contemporaneous writing made at the time of the gift, and
2) writing signed by donor/donee
How to include advancements in an estate for intestate distribution.
Add value of the advancement to value of present estate, figure out the shares from that total amount, then subtract the advancement from the individual taker's share.
Definition of "satisfaction of legacies" presumption (CL rule)
Presumption that a lifetime gift to a beneficiary named in the testator's will is in partial or total satisfaction of a later legacy (CL)
NY rule for "satisfaction of legacies" presumption.
NY rejects "satisfaction of legacies" presumption. In NY, a lifetime gift is not treated as "satisfaction of legacy" unless proved by
1) contemporaneous writing,
2) signed by the donor or donee
Effect of valid disclaimer (wills)
Person who disclaims is treated as if s/he predeceased the testator/decedent.
Elements of a valid disclaimer (wills):
1) in writing, signed and ack'd before a notary
2) accompanied by separate affidavit that states no consideration was given (ie, you weren't paid to disclaim)
2a) court can authorize receipt of consideration for the disclaimer
3) disclaimer must be irrevocable
4) disclaimer must be filed in Surrogate's Court within 9 months of date of death.
What happens during probate?
1) judicial determination that decedent died with a validly executed will
2) intestate distributees determined (notice of will)
3) Executor is appointed
Test for validly executed will
1) signed/ack'd in PRESENCE of each witness
2) CAPACITY (over 18)
3) SIGNED
4) WITNESSES, two
5) signed at END of will
6) PUBLISHED (told it was a will)
7) THIRTY days from first witness signing
7 points test - PC SWEPT
Definition of "codicil"
Later amendment or supplement to a will, executed with 7-point formalities.
Who bears burden of proof as to due execution?
Will proponent (person offering will for probate, usually the executor).
If will is not self-proved...
...both attesting witnesses must testify as to the facts necessary to show due execution.
What to do in cases of missing witnesses during probate?
If one witness is dead/absent/incompetent/missing, the testimony of the other will suffice.
If both are unavailable, the will proponent must prove at least 2 signatures (the testator's and one other witness)
Definition of "attestation clause" (wills)
Attestation clause appears below the testator's signaure and above the witnesses' signature line, and recites all elements of due execution.
What effect does an attestation clause have on a will?
Attestation clause is prima facie evidence of facts presented (not legally required, but useful when witnesses has a "bad memory" or is hostile).
Definition of "self-proving affidavit" (wills)
Document, attached to back of will, in which witnesses sign a sworn statement in the presence of an attorney that recites all statements they would make if called to testify in court (ie, that 7 point test has been fulfilled)
Effect of a "self proving affidavit"? (wills)
Substitute for the live testimony of the witnesses. Will is admissible to probate on the strength of the sworn recitals in the affidavit, unless an interested party objects, in which case formal rules of proof of due execution apply (must call 2 attesting witnesses to testify)
Who is an "interested witness"? (wills)
Intestate distributee who is adversely affected by the admission of the will to probate.
What happens if a will beneficiary is an attesting witness?
Bequest to witness is VOID, unless
1) supernumeracy rule (at least 3 witnesses, 2 who were disinterested, so you don't need interested witness' signature to admit will for probate)
2) interested witness would be an intestate disributee if testator had died without will (interested witness takes lesser of either his bequest under the will or his intestate share)
Foreign Wills Act: a will is admissible to probate in NY if it was validly executed under...
1) laws of state where executed, regardless of testator's domicile at that time
2) NY law
3) Law of state where testator was domiciled, either when will was executed or at death
END
Definition of "holographic will"
Will entirely in testator's own handwriting and signed, but not witnessed.
Definition of "nuncapative will"
Oral will
NY rule for holographic and nuncapative wills
VOID, except for members of armed forces during declared/undeclared war (expires 1 yr after discharge) or mariners at sea (expires after 3 yrs)
Holographic wills executed in other states
If valid in that other state, even if not valid in NY, it will be valid under the Foreign Wills Act.
Attorney malpractice...can beneficiaries sue for negligence after testator is dead?
NO, there is no privity of K between beneficiaries and attorney--the estate can only bring an action for the costs of drafting the will (damages are de minimus)
A will can be validly revoked by:
1) Subsequent testamentary instrument, duly executed, or
2) physical act (burning, tearing, cutting, cancelling, obliteration, act of mutilation)
Only 2 ways
Crossing out signature with big "X" (wills)
Constitutes revocation by physical act...anything done to signature shows intent to revoke entire will.
To the extent that a 2nd document (duly executed), which has no revocation language, is wholly inconsistent with a 1st document (duly executed)
The 1st document is "revoked by implication".
What is necessary for a valid revocation by proxy?
Must be
1) at testator's request
2) in the testator's presence
3) witnessed by 2 witnesses of the act
...so, at least 4 people needed in the room
Presumption when will was last seen in testator's possession/control but is not found after death
Presumption that Testator revoked will by physical act.
Presumption when will was last seen in testator's possession/control and is found mutilated after testator's death.
Presumption that Testator revoked by physical act.
In what ways can a testator change a will after it has been duly executed?
In NY, only 2 ways:
1) duly execute a new will which revokes 1st will
2) duly execute a codicil, changing only parts of the 1st will
2 ways
Rule for revival of revoked wills
A will that has been revoked by a later will/codicil is NOT REVIVED simply by destroying the later will.
Ways to revive a revoked will:
1) Re-execution of revoked will, or
2) Republication by codicil (testator validly executes a codicil to will #1, referencing that will)
2 ways
Doctrine of Dependent Relative Revocation (wills)
Common law doctrine which permits revocation to be disregarded when premised/conditioned/dependent on a mistake of law as to the validity of another disposition (ie, testator's mistaken belief that by revoking will #2, he had revived will #1)
Effect of Doctrine of Dependent Relative Revocation
Disregard revocation of will #2, and permit its probate.
When to apply Doctrine of Dependent Relative Revocation?
When the disposition that results from disregarding the revocation comes closer (than intestate distribution) to doing what the testator tried, but failed, to do.
Which courts in NY use Doctrine of Dependent Relative Revocation?
Only one Apptellate Division court, so make sure you ARGUE IT BOTH WAYS ON THE BAR EXAM
Proof of Lost Wills Statute
Need all 3:
1) due execution (7 point test), AND
2) must be established that will was NOT revoked, AND
3) all provisions of the will must be clearly and distinctly proved by each of at least 2 credible witnesses, or by a copy or draft of the will proved to be true and complete
3 necessary elements
Explaination of NY's anti-lapse statute.
For a pre-deceased beneficiary, the gift to them lapses or fails, unless the pre-deceased beneficiary was testator's sibling or issue, and the pre-deceased beneficiary leaves issue who survive the testator.
Explanation of the "surviving residuary beneficiaries" rule
If testator's residuary estate is devised to 2 or more people, and the gift to one of them lapses or fails for some reason, and the anti-lapse statute does NOT apply, the othe rresiduary beneficiaries take the entire residuary estate, in proprotion to their interest in the residue.
Rule: Class gifts: predeceased members of class, and will bequests.
Class members who survive the tesator take lapsed gifts of predeceasing members of the class (if determined that testator was "group-minded")
When individuals are named individually, and not as a class, ie, "to A, B, and C, the children of my brother", and some members predecease?
Any lapsed gifts go towards the residuary estate.
Rule of Convenience (wills)
Class is closed (later-born members excluded) at the time a distribution to the class must be made (subject to gestation principle)
Gestation Principal
280 days from conception to birth
Class closings and life estates.
Class closes at the death of the life tenant or income beneficiary.
Simultaneous deaths & USDA
The property of each person is disposed of as if he had survived the other.
What happens if testator gets married after writing his will, and no changes are made?
No problem, because spouse can always take elective share.
What happens if testator gets divorced after writing his will, and no changes are made?
Read will as if spouse predeceased testator, so long as divorce is final.
Definition of "incorporation by reference" (wills) (CL)
At common law, the terms of an extrinsic document, not present at the time the will is signed (and thus not part of the will) can be incorporated by reference if the document was in existance when will was drafted, the will shows an intent to incorporate the document, and the extrinsic document is clearly identified in the will.
NY rule regarding "incorporation by reference" (wills)
NY does NOT recognize incorporation by reference, so everything MUST BE FULLY EXECUTED
Examples of nonprobate assets:
1) Property passing by right of survivorship (joint bank account, joint stock account, joint tenancy)
2) Property passing by K (life ins policy, employee benefits to someone other than decedent or decedent's estate)
3) Property held in trust
4) Property over which decedent held a power of appointment.
Classification of gifts that can be made by a will:
1) Specific (gift of tangible prop)
2) Demonstrative legacy (specific amt from specific source)
3) General legacy (specific amt from nonspecific source)
4) Residuary disposition
5) Intestate property
Order in which gifts abate. (wills)
1) intestate
2) residuary
3) general legacy
4) demonstrative legacy
5) specific gift
NY rule with respect to exoneratin of liens (wills)
Liens on specifically devised property are NOT exonerated, unless SPECIFICALLY directed by the will (general exoneration, directing "payment of all debts upon my death," does not work in NY)
Definition of "ademption" (wills)
Failure of a gift, because gift does not exist at the time the gift is made.
Gift exceptions to ademption.
Ademption does not apply to general and demonstrative legacies.
Statutory exceptions to ademption
1) insurance proceeds paid after death
2) sales proceeds of an executory contract, to the extent those proceeds are paid after death
3) sale by guardian/conservator of specifically bequeathed prop (beneficiary is entitled to receive funds if traceable)
Ademption; gifts of stock in publicly traded companies...
are general legacies, and don't adeem, unless language says "my ...stock" which evidences an intent to make a specific bequest (in which case, adeemable)
Definition of "pretermitted child"
Child born or adopted after will is executed.
If testator had at least one child, and a will which made gifts to the other children, a pretermitted child takes...
a share in the amount to the other children as if a class gift were made.
If testator had at least one child, and it appears that the intention of the testator was to make a limited/nominal provision only to his children living at the time of execution, the pretermitted child takes...
his intesate share.
If testator had no children when will was executed, a pretermitted child takes...
his intestate share.
Definition of "abatement"
If there are so many creditor claims against the estate that there aren't enough assets to cover all gifts made by will, the gifts ABATE (are not given effect, so that the creditors' claims can be paid)
Ademption; gifts of shares of stock in closely held companies
Evidence of a specific bequest, which means they will adeem.
Stock splits and ademption.
Splits are treated as specific bequests, whether language says "my" or not. Giftee takes all shares.
Takeovers, stocks, and ademption.
Ademption does not apply to specific bequests of stock in company #1 which is later taken over by company #2.
Presumption of plain meaning.
Absent suspicious circumstances, it is conclusively presumed that the testator read his will before he signed it, and intended its consequences. The plain meaning of the will won't be overturned by extrinsic evidence.
Definition of extrinsic evidence:
Evidence relating to a K/document but not appearing on teh face of the K/doc because it comes from other sources, such as statements between the parties or the circumstances surrounding the agreement.
In general, when is extrinsic evidence NOT admissible?
Extrinsic evidence is usually not admissible to contradict or add to the terms of an unambiguous document.
Definition of "latent ambiguity"
Misdescription - an error which is not evident by looking at the face of the will.
Is extrinsic evidence admissible to clarify a latent ambiguity (to clarify a misdescription)?
YES
What types of extrinsic evidence are admissible to clarify a latent ambiguity?
1) facts and circumstances evi (family, claimants, habits, and thoughts)
2) testator's declaration of intent third parties
3) testator's statements to his attorney who prepared the will
Definition of "patent ambiguity"
Mistake appearing on face of will, such as a typo.
Is extrinsic evidence admissible to clarify a patent ambiguity?
YES
What types of extrinsic evidence are admissible to clarify a patent ambiguity?
1) facts and circumstances evidence (family, claimants, habits, thoughts)
2) testator's statements to attorney who prepared will

NOT testator's declaration of intent to third parties
What is precatory language, and what is its effect on a disposition?
Precatory language doesn't impose a mandatory obligation to carry out testator's will, i.e., "I desire Bill to have Blackacre."

Precatory language won't work in a will; gift fails.
What is a conditional will?
Duly executed will premised on another event happening, ie, "If I should die on this trip, I leave all my property..."
What do you do with a conditional will if condition is never met?
2 arguments:
1) this is a conditional will, meaning that probate would be denied because condition was never met
2) this reference to the trip merely reflects a motive or inducement for making the will, but the intent to make a will is still valid
Elements of an enforceable contract to make a will or not to revoke a will.
To be enforceable, contracts ot make wills or not to revoke wills or trusts must be
1) in writing, and
2) signed by the party to be charged, therewith
Joint wills / contractual wills ...executed on or after September 1, 1983.
A joint will executed on or after this date is not contractual unless expressly stated to be.
Joint wills / contractual wills ...executed before September 1, 1983.
With respect to a joint will executed before this date, an agreement (contract) not to revoke may be implied by the language of the will (use of possessive plural pronouns, such as "we", plus a common plan for disposition of both parties' property)
Effect of breach of contractual will
If Will #1 is a contractual will, and survivor breaches by writing Will #2 with inconsistent provisions...
1st, probate Will #2,
2nd, impose a "constructive trust" in favor of the original intended beneficiares of Will #1
Partial intestacy and the disinherited person, under the Common Law
When a will doesn't make a complete disposition of property, resulting in partial intestacy, a disinherited person under the will can still take under instestacy (CL's rationale is that property passing by intestacy is governed by the intestacy statutes, not by decedent's will)
NY's "Negative Bequest" Rule regarding partial intestacy and the disinherited person.
Words of disinheritance are given full effect, even in partial intestacy...when words of disinheritance are clear in the will, treat the disinherited person as if she predeceased (doesn't take under intestacy)
What is the spouse's elective share?
The greater of $50k or 1/3 of the estate, plus interest at 6% beginning 7 months after issuance of letters testamentary.

If net estate < $50k, elective share = whole estate.
What is the actual amount to which spouse is entitled if s/he takes elective share?
Elective share, minus value of all outright dispositions passing to the spouse under the will or as testamentary substitutes.
Elective share applies to net estate, after...
...payments of debts, but before payment of estate taxes.
Elective share vs. intestate share.
In most cases, a surviving spouse's intestate share if decedent had died without a will would be larger than his/her elective share, *unless testamentary substitutes are involved.
Net estate includes...
...testamentary substitutes.
What nonprobate transfers are considered testamentary substitutes?
T - Totten Trust bank accounts
S - Survivorship estates (joint tenancies, tenancies by entirety, joint and survivor bank accounts)
L - lifetime transfers with "strings attached" (revocable trusts, and irrevocable transfers with retained life estates made on or after September 1, 1992)
E - employee pension, profit-sharing, derferred compensation plan (if employee designated the beneficiary on or after September 1, 1992, and otherwise, only 1/2 of a qualified plan is a testamentary substitute)
G - gifts made within 1 yr of deadh, in excess of annual $11k gift tax exclusoin; also, Gifts Causa Mortis (gifts made in fear of impending death, even within the $11k exclusion, and which are automatically revoked if donor survives peril)
U - US Govt Bond and other "Pay on Death" arrangements
P - powers of appointment - property over which decedent held a presently exercisable power of appointment, but not property over which he held a general testamentary power)
Testamentary Substitutes need a "leg up"
What is a Totten Trust?
A revocable trust created by one's deposit of money in one's own name as a trustee for another. A Totten Trust is commonly used to indicate a successor to the account without having to create a will.
What probate transfers are NOT considered testamentary substitutes?
L - Life insurance policies
O - one-half of qualified pension and profit-sharing benefits
G - gifts made w/in 1 year of death, within $12k annual exclusion
P - pre-marriage irrevocable transfers (gift to friend prior to marriage)
I - irroevocable transfers made more than 1 yr prior to death
T - transfers with retained life estate made prior to September 1, 1992
LOGPIT
For survivorship estates, between deceased spouse and a 3rd party, what amount is considered a testamentary substitute?
Consideration Furnished Test: whatever the spouse can prove the decedent contributed
For survivorship estates, between deceased spouse and surviving spose, what amount is considered a testamentary substitute?
1/2 of the estate = t-sub.
Formula for calculating elective share
Net probate estate
(+) Testamentary substitutes
---------------------------
(=) Elective Share Estate


1/3 Elective Share Estate
(-) Specific will amounts
(-) T-sub amounts
----------------------------
(=) Net elective share to which spouse is entitled to
Elective share, t-subs, and intestacy
If intestacy applies, and if the amount that surviving spouse takes under intestacy is greater than the elective share (due to t-subs), the surviving spouse has no elective share rights.
How do you make up the elective share when decedent died with a will?
In making up the net elective share, all other beneficiaries contribute pro ratably.
Definition of elective share trust?
Trusts which gives the surviving spouse a life estate (income to spouse for life)
Elective share trusts, and decedents who die before Sept. 1, 1994.
For estates of decedents dying before this date, the right to an elective share could be wiped out through the use of an elective share trust, as long as at least $50k was given outright to the sposue...if the sum of outright dispositions of at least $50k, plust the principle of the trust, equaled or exceeded the 1/3 elective share amount, then the spouse had NO right of election.
Elective share trusts, and decedents who die after September 1, 1994.
LIFE ESTATES NO LONGER SATISFY elective share entitlement. If there is an elective share trust in the will, it is attorney malpractice not to re-examine all wills executed before Sept. 1, 1994. If there is an elective share trusts, and the surviving spouse files for an elective share, read the trust as though the surviving sposue predeceased the testator, meaning, as though there was no life estate in the surviving spouse, and thus any remainder interest would be "accelerated"
Procedural rules for elective share
1) Must be filed for w/in 6 months of letters of testamentary/administation, & even with proper extensions, no longer than 2 years after death.
2) Only surviving spouse can choose election.
3) Election can be waived (must be in writing, signed, ack'd before notary)
The decedent is a non-domiciliary, with property in NY--what elective share result?
Only a spouse of a decedent domiciled in NY at teh time of death has a right of election, unless it is expressly stated in decedent's will that a disposition of property in NY is to be goverened by NY law
The decedent is a domiciliary, with property out of state--what elective share results?
Net estate includes value of the out of state property.
What property is exempt from calculating the net estate (statutorily exempt "allowances")?
1) car, up to $15k
2) furniture, appliances, computers, up to $10k
3) $15k cash allowance, not subject to creditors' claims except funeral expenses
4) animals, farm machinery, tractor up to $15k
5) books, pictures, videotapes, software up to $15k
6) TOTAL, up to $56k
When is spouse disqualified from taking elective share?
D - Divorce
I - Invalid divorce procurred by surviving sposue
S - separation decree (not agreement)
M - marriage void as incestuous
AL - abandonment or lack of support
DISMAL
Will contest based on lack of testamentary capacity.
Did testator have sufficient capacity to:
1) understand nature of act,
2) know nature and approximate value of property
3) know the natural object of his bounty,
4) understand disposition he was making

Capacity to make will requires less capacity than required for any other legal instrument.
Even if testator wrote and signed her will after having been adjudicated incompetent...
It could be found that testator executed a will during a lucid interval
Will contest based on lack of testamentary capacity and insane delusions
Testator has a persistent belief in supposed facts which have no real existence except in testator's perverted imagination...the supposed facts are against all evidence, probability, and control, and produce the exercise of the testamentary act.
Will contest based on undue influence.
Influence was exerted on testator that subverted the mind of the testator at the time of the will's execution, and resulted in a will that would not have been executed but for the influence.
Inference of undue influence if...(wills)
...beneficiary was in a confidential relationship with testator and was active in procuring the will.
What happens if will makes bequest to attorney who prepared will?
Inference of undue influence.

Surrogate Court will make Putnam Scrutiny (automatic), even if no one objects to probate, to determine whether gift was voluntarily made.
What happens if will names drafting attorney as executor?
For attorney's appointment to be valid,
1) attorney must have made a written disclosure to the client that any person could be named as executor, and that executor receives statuory compensation,
2) client must have signed and ack'd disclosure, with 2 witnesses
Failure to comply with statutory disclosure requirements in case of drafting attorney named as executor?
Attorney only gets 1/2 stautory commission.
Will contest based on fraud.
Either:
1) misrepresentation as to nature or contents of the instrument (fraud in the factum)
2) testator is induced into making a will or gift by misrepresentations of fact that influence her motivation (fraud in the inducement)
Will contest based on mistake.
Testator was mistaken as to nature of the instrument (ie, she thought she was signing a power of attorney)
Majority rule for no-contest clauses (in terrorem clauses)
No-contest rules are given full effect, unless court finds that contest was brought in good faith and with probable cause.
Definition of "no contest clause" or "in terrorem clause"
Clause in the will that says if anyone contests, he gets nothing.
No-contest clauses in NY (wills)
Clause is given full effect, even if there is probable cause to challenge the suit.
Exceptions to rule regarding no contest clauses in NY
No-contest clause will not be given full effect if the will contest is:
1) based on forgery, or that the will was revoked by a later will (if the surrogate finds probable cause for contest; does not apply to revocation by physical act)
2) filed on behalf of an infant/incompetent
3) a construction proceeding, to construe the will's terms (patent and latent ambiguities), OR
4) an objection to jurisdiction of court
Definition of "power of appointment" (wills)
An authority created by a person (creator / donor) to designate, within limits proscribed by the creator of the power, the persons who shall take the property and the manner in which they will take it.
Definitions of "donor", "donee", and "takers in default"
Donor - creates the power
Donee - is given the power
Takers in default - persons who take prop if donee fails to properly exercise power.

If person reserves power in herself, she is both donor and donee.
General power of appointment
One exercisable in favor of donee herself, her estate, her creditors, or the creditors of her estate.
Special power of appointment (limited power of appointment)
One exercisable in favor of a specified class of persons, not including donee, her estate, her creditors, or the creditors of her estate

Not permitted to appoint yourself as donee

Limited/designated class to which you can appoint the power.
Presently exercisable power of appointment
One exercisable by the donee during her lifetime (can be exercised by donee's will unless such an exercise is expressly prohibited)
Testamentary power
Exercisable only by donee's will.
Elective shares, and powers of appointment
General presently exercisable powers of appointment ARE reachable as a testamentary substitute for elective share purposes.

General testamentary powers of appointment and special powers of appointment are NOT reachable.
What is are the applicable contracts laws on the MBE?
1) Common law
2) UCC, Art. 2 (only applies to sales of goods)
there are 2
What are the applicable contracts laws in NY?
1) Common law, with NY variations
2) Art. 2 (sales of goods)
3) Art. 2a (leases of goods)
there are 3
Defintion of "contract"
Legally enforceable agreement
Definition of "express contract"
Legally enforceable agreement created by the parties' oral or written words.
Definition of "implied contract"
Legally enforceable agreement created by the parties' conduct.
Definition of "quasi-contract"
Equitable remedy that applies whenever contract law yields an unfair result. Quasi-K is goverened by principles of equity -- designed to protect against "unjust enrichment".
What if the Statute of Frauds barred someone from enforcing a contract when the other party had already received the benefit?
This is unjust enrichment, and quasi-contract might be a remedy that would come into play.
In quasi-K, what can the plaintiff usually recover?
The reasonable value of the benefit conferred, NOT the original contract price (usually, the value of the benefit conferred is LESS than the original contract price)
Definition of "bilateral contract"
Offer can be accepted by any reasonable way.

Extremely flexible in nature.

Every contract is bilateral, unless the offer specifically says that it can be accepted only by performing.
Definition of "unilateral contract"
An offer which specifically says it can be accepted only by performing.
What is an "offer"?
An offer is a manifestation of intention to be bound, created by words or conduct.
Advertisements are generally NOT offers. To constitute an offer, an advertisement would need:
1) quantity term
2) price
3) limit on number of people who can potentially accept
Is an open price term in an offer too indefinite?
Under common law, YES. Under common law, offer must contain a price.

Under Art. 2, NO.
To be valid, an offer must be...
1) an expression of promise, undertaking, or commitment to enter into K
2) definite and certain in terms
3) communicated to offeree
Advertisements are generally... (offers or not offers?)
NOT OFFERS...advertisements are generally "invitaions to deal"
An offer may be accepted so long as it hasn't been...
terminated.
Lapse of offer
After a stated time, or after a reasonable time has passed if no time is stated.
Ways offer will terminate:
1) offer lapses
2) offeror revokes offer
3) offeree rejects offer
4) death of either party before acceptance (except for irrevocable offers)
4 ways
Ways in which offeror can revoke:
1) direct (offeror unambiguously indicates revocation directly to offeree), OR

2) indirect (offeror's conduct unambiguously indicates that he's revoked, & the offeree is aware of the conduct)
2 ways
When is revocation of an offer effective?
Only on offeree's receipt of the revocation.
What if the offeree already accepts the offer before she receives the offeror's revocation of the offer?
It's too late for the offeror to revoke the offer, and the acceptance is valid.
In general, the offeror can revoke any time...
before acceptance.
The offeror can generally revoke any time before acceptances, except in the following situations:
1) option (promise to keep offer open, that's paid for)
2) reasonably foreseeable reliance before acceptance (only in contractor-subcontractor situations)
3) beginning performance, for a unilateral K
4) firm offer under Art. 2
there are 4
Unilateral Ks...on the MBE, the offeror can no longer revoke when...
once the offeree starts performing (mere preparation is not enough...the offeree must actually start performing for this exception to apply)
Unilateral Ks...in NY, the offeror can no longer revoke when...
In NY, an offer can be revoked UNTIL PERFORMANCE IS COMPLETED!
Contractor/subcontractor rules on offers...
When a subcontracter submits an offer that the contractor relies on in making a bid, the contractor still has the choice, after the bid is won, to accept or reject the offers.
What is a "firm offer"
Under Art. 2, a signed, written promise by a merchant to keep an offer open (merchant = businessperson)
must involve goods!
What is the time limit on a firm offer?
3 months

If writing says anything longer than that, it's reduced to 3 months.

If writing is silent, the offer would be firm for a reasonable time not to exceed 3 months.
NY rule, regarding "firm offers"
In NY, a signed, written promise is enough, even without consideration, and you don't have to be a merchant.

NOTE: the signed writing acts as a substitute for the consideration.
What is considered "rejection" by the offeree?
1) counteroffer
2) conditional acceptance
3) acceptance with additional, or different, terms (under CL, but not Art. 2)
"Mirror image rule"
Common law contracts rule that says if the offeree adds an additional clause to the offer, or changes something on the offer (even trivial), this operates as a rejection.
Art. 2 has no mirror image rule. But, the additional / changed terms do not automatically become part of the contract...need:
1) both parties to be merchants,
2) term changed is not "material"
3) offeror does not object within a reasonable amount of time
3 elements
Under Art. 2, if both parties are merchants, and the offeree tries to change a material element of the offer,
There is a contract, but it does NOT include the attempt to change the material element, UNLESS the term added is customary practice in the particular trade or industry (then, it's not considered a material change).
I.e., disclaimer of warranties is a material change. Saturday delivery is not a material change as between merchants.
Commencing performance as acceptance of a bilateral contract...
If offer doesn't require any particular acceptance, starting performance = acceptance, and starting performance also = promise to finish performance
Commencing performance as acceptance of a unilateral contract
An offer to enter a unilateral K can only be accepted by completing performance.

Starting performance does NOT obligate the performer to finish.
On the MBE, for unilateral Ks, if offeree has started performing, can offeror revoke?
NO (once performance starts, the offeror is bound, but the offeree is NOT bound...that's why it's called a unilateral K)
In NY, for unilateral Ks, if the offeree has started performing, can the offeror revoke?
In NY, YES, an offeror can revoke until performance is complete.
What is the effect of commencing improper performance?
It operates as both acceptance, and simultaneous breach, under CL and Art. 2.
When does silence equal acceptance?
Generally, never.

In NY, silence operates as acceptance of UNSOLICITED GOODS (such goods are considered unconditional gifts)
When is acceptance effective?
MAILBOX RULE: acceptance is effective when mailed.
What happens if acceptance gets lost in the mail?
Doesn't matter...acceptance is still effective when mailed...burden of loss is on offeror.
Defenses (contracts)
1) defendant's lack of capacity
2) duress
3) misrepresentation / non-disclosure of material fact
4) mutual mistake about material fact
5) lack of consideration (except in NY)
6) illegality
7) public policy
8) unconscionability
there are 8
Defenses to formation of a K
1) absence of mutual assent, ie, mutual mistake, misrepresentation
2) absence of consideration
3) public policy (illegality)
Defenses based on lack of capacity (contracts)
defendant under 18, intoxicated, or mentally incompetent
Defenses to enforcement of a K
1) Statute of Frauds
2) unconscionability
What is "implied affirmation" (K law)
an incapacitated party can impliedly affirm a K by retaining the benefit of the K without complaining after gaining (or regaining) capacity
Mailbox rule and irrevocable offers?
Mailbox rule does not apply to irrevocable offers.
Mailbox rule: if offeree sends acceptance, then rejection?
Mailbox Rule applies, and acceptance is effective, unless rejection gets there first and offeror detrimentally relies on rejection.
Mailbox rule: if offeree sends rejection, then acceptance?
Whichever gets there first is effective.
What, if anything, is an incapacitated defendant liable for (K law)?
Necessities (food, shelter, clothing, medical care), but only on a quasi K basis.
elements of economic duress (K)
1) threat to break existing K unless threatening party gets another/a better deal
2) the threatened party agrees only to get the original deal done, AND
3) there are NO OTHER ALTERNATIVES
under K law, is an honest or innocent misrepresentation fatal to the K?
YES, if it goes to a material fact
are parties bound by Ks in which there is a mutual mistake regarding a material fact central to the K?
NO
what are considered material facts central to the K (with respect to mutual mistake)?
mutual mistakes are material if they regard:
a) existence of something
b) what the something is

BUT NOT, what that something is worth
are parties bound by Ks in which there is a unilateral mistake regardinga material fact central to the K?
in general, yes. unless other party is aware of the first party's mistake
Definition: "consideration"
bargained-for legal detriment or benefit

(promise, performance, or forebearance)
Is past consideration valid as consideration?
MBE, NO

NY, YES, past consideration is binding if it is expressly stated in a signed writing and can be proved.
What is required to modify a K under the common law?
Consideration, due to the "Pre-Existing Duty Rule"
What is required to modify a K under NY law?
Modification must be contained in a signed writing

(no pre-existing duty rule; consideration NOT required if signed writing acts as substitute for consideration)
What is required to modify a K under Art. 2?
Good faith...consideration NOT required to modify K for goods (no pre-existing duty rule under K law)
Is part payment valid consideration to forgive the rest of a disputed debt?
YES, the law favors settlement of disputed claims.
Is part payment valid comsideration to forgive the rest of an undisputed, due debt?
MBE, NO

NY, yes, b/c you don't need consideration if the promise to forgive the balance of the debt is a signed writing
Is a written promise to pay a debt, collection of which is barred by SOL, enforceable even without consideration?
YES, in NY and on the MBE. The writing serves as a substitute for consideration.
When can promissory estoppel serve as a substitute for consideration?
When promisor should reasonably expect her promise to induce action or forebearance, of a definite and substantial character, and such action or forebearance is in fact induced.
When will a court consider when reviewing non-compete clauses?
1) the geographic & time scope, AND
2) the need for the covenant
Is renunciation a defense to attempt in NY? (crim)
YES (this is unlike the MS rule) *NY* - must make voluntary and complete renunciation and (a) thereby avoid the commission of object crime, or (b) if renunciation alone is not enuf, take affirmative stepts to prevent commission
What is considered a felony in New York?
Felonies are offenses for which death or a prison sentence of more than 1 year may be imposed.
In NY, what is the rule when an accomplice testifies against another participant in the crime?
In NY, a person may not be convicted solely upon the uncorroborated testimony of an accomplice, except in police disciplinary hearings.
In NY, is withdrawal a defense to any inchoate crimes?
YES, in NY, withdrawal is a defense to solicitation and conspiracy, if defendant
1) voluntarily and completely renounces, and
2) prevents the commission of teh object crime.
In NY, what is the rule when a person solicited for a crime testifies against the solicitor?
Defendant may be convicted upon the testimony of the person solicited.
NY follows the (unilateral or bilateral) approach to conspiracy?
Unilateral approach, also the MPC approach, which says that a single defendant can be convicted of a conspiracy, and you CAN conspire with a police officer.
In NY, what is the difference between a "defense" and an "affirmative defense"?
Defense -- must be disproved by the prosecution beyond a reasonable doubt.

Affirmative defense -- must be raised and proved by the defendant by a preponderance of the evidence (insanity, extreme emotional disturbance, entrapment, duress)
What is "battery" in NY?
In NY, there is no crime of battery. Common law battery is statutory assault in NY, and common law assault is statutory "attempted assault" in NY.
What are the elements of Highly Reckless 2nd Degree Murder in NY?
1) demonstrating depraved in difference to human life;
2) person recklessly engages in conduct that creates a grave risk of death to another
3) thereby causes the death of another

NOTE: force directed at the individual, with no intention to kill, may suffice for conviction.
In NY, what felonies count for felony murder?
* burglary, robbery, arson, kidnapping *

also: 1st degree rape/sodomy, sexual or aggravated sexual abuse, 1st & 2nd degree escape
In NY, when does an accomplice have an affirmative defense to a felony murder charge?
must meet all 4 qualifications:

1) he did not commit / aid in commission of homicidal act
2) he was not armed
3) he had no reasonable grounds to believe others were armed with deadly weapons
4) no reason to believe any participant intended to engage in conduct likely to cause death
In NY, what crimes are considered first degree manslaughter?
1) serious bodily harm resulting in death (similar to MS involuntary manslaughter)

2) extreme emotional disturbance murder (heat of passion)...defendant must raise and prove the affirmative defense of extreme emotional disturbance (similar to MS voluntary manslaughter)

3) unjustified abortional act
In NY, what is generally considered second degree manslaughter?
Reckless murder - conscious disregard of a substantial risk, which causes the death of another.

Intoxication is not a defense.
What are the elemtnts of First Degree Kidnapping in NY?
person abducts another

1) with intent to compel ransom, compel an act, or restrain an act, OR
2) victim restrained for more than 12 hours, with intent to inflict physical injury / terrorize, OR
3) victim dies
What are the elements of 2nd Degree Kidnapping in NY?
Abducting someone
Affirmative defense to kidnapping in NY?
Victim was a relative, and defendant's sole purpose was to assume control of victim.
Elements of 1st Degree Rape / Sodomy in NY
Person engages in sexual / deviate sexual intercourse with any other person:
1) who is less than 11, or
2) who is physically helpless, or
3) by forcible compulsion
What is the rule when a victim tesifies against a sexual offender in NY?
No corroboration required in cases of forcible rape, sodomy, or sexual abuse.

Defendant may not be convicted solely on testimony of the victim for any other sex crime. Corroborating evidence must tend to
1) establish attempt to have intercourse/sexual contact wtih victim, and
2) connect defendant with commission of the offense / attempt.
What crimes are considered "larceny" in NY?
1) larceny by trespassory taking
2) larceny by trick
3) false pretenses
4) embezzlement
What acts are considered larceny in NY?
1) acquiring lost / mislaid property
2) issuing a bad check
3) false promise
4) extortion
5) embezzlement
6) appropriating leased or rented items
What is grand larceny in the 1st degree in NY?
Property worth more than $1 million dollars
What is grand larceny in the 2nd degree in NY?
Property worth over $50,000, or extortion by fear of physical injury, damage to property, or defendant's abuse of his powers as a public servant.
What is 3rd degree burglary in NY?
1) Knowingly entering or remaining unlawfully,
2) in a building, and
3) intent to commit a crime therein
What is 2nd degree burglary in NY?
3rd degree, aggravated by any 1 of the following
1) dwelling
2) defendant injures a nonparticipant, or
3) def is armed
What is 1st degree burglary in NY?
burglary of dwelling or motor vehicle, and
1) defendant is armed, or
2) nonparticipant is injured by the defendant
Explain arson in NY?
3rd - intention damage to building or motor vehicle by starting fire or causing explosion

2nd - with knowledge that nonparticipant is in building or reasonable possibility

1st - explosion or fire by incendiary or explosive device