Bar Prep - Mbe And The Rest

Front 1

Nuisance - Torts

Back 1

Private - Substantial and unreasonable interference with the use and enjoyment of real property.

--Not a majority, but more than one person

--Must own or rent prop for standing

Public - Substantial and unreasonable interference with the rights of the community at large.

Front 2

Diversity of Citizenship - Civ Pro

Back 2

1. Amount in controversy more than $75,000

2. Each ∏must be a citizen of different state from each ∆. Diversity must be complete.

--if any ∆ same state as ∏ - diversity destroyed

--measured at time of suit filing

--new state citizenship established by

(i) physical presence in new place, and

(ii) intention to remain permanently

Front 3

Silence as Evidence (federal)

Back 3

ADMISSIBLE NONHEARSAY

Under Fed. Rules of Evidence, silence in response to an accusatory statement can be considered an implied admission

--party heard and understood the statement

--Rsble person would have denied in same circumstances

Front 4

Conduct as Statement - Evidence

Back 4

In general, reports of nonassertive conduct are not hearsay (even if it rises to admission by conduct e.g., threw the gun in the garbage). Assertive conduct is actions that serve as statements (nodding "yes")

Front 5

Hearsay

Back 5

An out-of-court statement offered as evidence to prove the truth of the matter asserted

Front 6

Exceptions to Hearsay - FRE 802

Back 6

1. Presence Sense Impression

2. Excited Utterance

3. Then Existing Mental, Emotional, or Physical Condition

4. Statement made for Medical Diagnosis or Treatment

5. Recorded Recollection

6. Records of Regularly Conducted Activity

7. Absence or a Record of Regularly Conducted Activity

8. Public Records

9. Public Record of Vital Statistics

10. Absence of Public Record

11. Records of Religious Org. Concerning Personal or Family History

12. Certificates or Baptism, Marriage, etc.

13. Family Records

14. Record of Docs that Affect Interest in Prop.

15. Statements in of Docs that Affect Interest in Prop.

16. Statements in Ancient Docs.

17. Market Reports or other Commercial Pub.

18. Statements in Learned Treatises, Periodicals, or Pamphlets.

19. Reputation Concerning Personal or Family History.

20. Reputation Concerning Boundaries or General History

21. Reputation Concerning Character

22. Judgment of Previous Conviction

23. Judgments Concerning Personal, Family, or General History or a Boundary.

Front 7

Burglary

Back 7

(1) Breaking and (2) Entering into the (3) Dwelling House of Another (4) During the Nighttime (5) With the Intent to Commit a Felony Therein

1. Any force to widen opening/key =constructive breaking

5. Concurrence with the B&E - success not required

Front 8

Arson

Back 8

(1) Malicious (2) Burning of the (3) Dwelling of Another

1. Malicious can be reckless

2. ANY burning to the home structure, no matter how slight.

2. NOT just items in the house

Front 9

Defective Product/Misuse

Back 9

A Manufacturer is liable for a defective product, even if the DF misuses it, as long as the misuse is foreseeable.

Front 10

Exceptions to Requirement for Contract in Writing for goods valued $500 or more

Back 10

1. Specially manufactured goods unsuitable for resale in the seller's regular course of business.

2. Contracts admitted in court

3. Contracts partially accepted (enforceable to the extent of acceptance)

Front 11

Subdivision Covenants

Back 11

When a subdivision is created with similar covenants in all deeds, there is a mutual right of endorsement (each lot owner can enforce against every other lot owner) when (i) a common scheme for development existed when sales of parcels began and (ii) notice of the covenant to the sued party.

Front 12

Larceny

Back 12

(1) unlawful (respassory) taking and carrying away of (2) someone else's property (3) without owner's consent (4) with intent to deprive owner of property permanently

Front 13

Repudiation of a contract - when can the non-breaching party sue?

Back 13

The non-breaching party may sue immediately or at anytime afterward. Repudiation accelerates the cause of action but does not replace the right to sue after performance is due

--not a MUST sue, but a MAY sue

Front 14

Effect of Mortgage on JTWROS

Back 14

Lien Theory State (majority rule)

--A mortgage not signed by all JTs does not sever the right of survivorship, so surviving JT takes title free and clear

Title Theory (minority rule)

--Mortgage severs right of survivorship. JT would not take prop - it would pass to the estate subject to the mortgage

Front 15

Multiple Counts

Back 15

Each count must possess at least one different element or Double Jeopardy will attach

Front 16

Aspects of Citizenship - level of scruitiny

Back 16

Rational Basis - though may affect a suspect class (often alienage), gov't may restrict aspects of citizenship (voting, jury duty).

Front 17

Domesticated Animals

Back 17

Owner not strictly liable for injuries caused, as long as owner has no knowledge that animal has abnormally dangerous tendencies (more dangerous than norm for species).

Front 18

Which court can hear controversies between states

Back 18

SCOTUS

Front 19

General Warranty Deed

Back 19

Covenant of Seisin: grantor has estate (or right to convey) the same as (or >) conveying (i.e., fee to fee , LE to LE).

Covenant to Convey Free from Encumbrances: (except those disclosed in the deed e.g., easement).

Covenant of Quiet Enjoyment: grantee will not be disturbed or dispossessed of property by claim of superior title

Covenant to Defend Title: ensures defense of title against ALL claims of ALL third parties, grantor liable for resulting damages.

Front 20

Quitclaim Deed

Back 20

Transfer of title without a covenant to defend. No claims against seller, but can use previous warranty deeds (which run with the land) to recover (max sales price of original seller)

Ex: O --> A for $50K Warranty Deed

A --> B for %75K Quitclaim

Defect in Title discovered, B can recover $50K

http://www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/2011_summer/real_property_interests_deeds.html

Front 21

Statements to impeach a witness's credibility

Back 21

Any party, including the party that called the witness, may attack the witness’s credibility. However, extrinsic evidence of a prior inconsistent statement may not be used to impeach on a collateral matter (no trail-within-a-trial)

Front 22

Duty of Land Owner to Tresspassors

Back 22

Trespasser (T) - Refrain from willful, wanton, reckless, or intentional misconduct. No duty to undiscovered T. Once discovered, warn or protect from concealed, dangerous, artificial conditions.

Front 23

Three types of visitors on land

Back 23

Tresspasser

Invitee

Licensee

Front 24

Duty of Land Owner to Invitee

Back 24

Either public invitee (biz) or business visitor (private). Duty of rsble care to inspect the prop, discover unrsbly dangerous conditions, and protect invitee from them, but not beyond the scope of the intended visit (e.g, retail area v. back storeroom). Not liable if rsble inspection and no danger discovered (tree limb infested)

Front 25

Duty of Land Owner to Licensee

Back 25

Enters w/ express or implied permission; social guests, tolerated (kids cutting thru) and emergency personnel. Correct or warn of concealed dangers, either known or SBK or SBObvious. No duty to inspect for dangers.. Must use rsble care for activities on the land.

Front 26

Installment K

Back 26

Can only reject when nonconforming shipment SUBSTANTIALLY IMPAIRS value of installment and cannot be cured. W/ adequate assurance of cure, buyer must accept.

Payment due on delivery

To cancel whole K, nonconforming must subs. impair entire value of K

Front 27

Attempt Crimes

Back 27

Requires specific intent to engage in the behavior or cause the harm

Merge on completion of crime

Front 28

Long Arm Statute

Back 28

Allows for a state court to obtain personal jurisdiction over an out-of-state defendant on the basis of certain acts committed by an out-of-state ∆, provided that the ∆has a sufficient connection with the state. (e.g., does business, uses state roads)

Front 29

Lack of Intent on part of Offeror

Back 29

Objective standard; The offeror's lack of intent to make offer is not a defense if the offeree can rsbly interpret the communication as an offer

Front 30

Anti-Lapse Statute

Back 30

If devise to a party who predeseases and who has issue (children, etc), prop will pass to them

Front 31

Lapse

Back 31

Devise of prop can fail (lapse) if beneficiary predeceases testator AND no alternate beneficiary named.

--lapse gift traditionally becomes part of residual

Front 32

Merchant Seller's Risk

Back 32

When seller of goods is a merchant, the risk of loss remains with seller until goods delivered to buyer. However, when goods are identified at K formation & buyer then repudiates, seller may treat risk of loss as resting on buyer.

Front 33

Assumption of Mortgage

Back 33

Buyer is personally liable at default for the loan (plus threat of foreclosure). If "subject to the mortgage," only the property remains at risk of FC at default- buyer not personally liable.

Seller (original mortgagor) remains liable in both cases without a novation from the bank.

Front 34

Effect of Opinion for Express Warranty

Back 34

Although most statements made by seller to buyer about goods creates an express warranty, the statement must be a promise or affirmation of fact, not opinion or puffery.

Front 35

Time limit to reclaim goods from insolvent buyer

Back 35

10 days

EXCEPTION

--if seller receives written assurances of solvency within 3 months before delivery

Front 36

Defense of Others

Back 36

is permitted upon rsble belief that defended party would be entitled to use self defense

--proportional force

Front 37

Race

Notice

Race/Notice

Back 37

Race - first to file wins

Notice - BFP will win if no notice

Race/Notice - First to file if no notice

Front 38

Mortgage Modification - Effect on Lienholder Position

Back 38

A Mortgagor who holds senior position and subsequently adds another loan to borrower thru modification prejudices the junior mortgage by creating greater risk that value of prop would not be sufficient to cover junior. Thus senior loses the priority of the amended portion of the loan in the case of FC deficiency.

Front 39

Strict Liability

Back 39

Abnormally Dangerous Activities (blasting, mining, etc)

Animals - Wild

--injury by fearful reaction or by animal (in its manner) strictly liable

Defective or Dangerous Product

--commercial supplier of defective product is strictly liable for personal or prop injury

Front 40

Transferred Intent - Torts

Back 40

Any intent proved for Assault, Battery, False Imprisonment, Trespass to Land, or Trespass to Chattels will transfer automatically to all other "Fab 5" torts.

e.g. ∆tries to scare ∏, accidentally injures him; assault intent transferred to the battery

Front 41

Abatement

Back 41

Permits reduction or elimination of devise when assets of estate insufficient to pay all debts and satisfy all devises. General devises (money) sacrificed to save specific devises (house, named painting, etc).

Front 42

Statute of Frauds required when...

Back 42

MSOUR

Marriage

Surety

Over one year

UCC

Real Property

Front 43

Duress (K)

Back 43

When a person enters into a contract in response to an improper threat that deprives person of meaningful choice.

--Threat of criminal prosecution ALWAYS improper (guilt notwithstanding)

Front 44

Easement - Dominant Estate

Back 44

An easement is only valid for a dominant estate. Any subsequent property acquired by easement beneficiary is not included in easement.

Front 45

Parol Evidence Rule

Back 45

Prevents a party to a written K from presenting prior extrinsic evidence of negotiations so long as the K is a total integration of agreement.

Exception - Condition precedent that challenges formation of K (I won't use your service if I can't get the loan)

Front 46

Incidental Beneficiaries (K)

Back 46

--have no standing

--have no vested rights

--no "4th party beneficiary" (from party to intended 3rd party beneficiary who then makes a new party a beneficiary)

Front 47

Tenants-in-common; who pays what?

Back 47

TIC without agreement to contrary do not generally pay rent to other TIC's for use of property. Usually all share operating expenses (taxes, mortgage interest), but if a TIC has exclusive use, can only be reimbursed the amount in excess of fair rental value.

Front 48

Rules against Perpetuity Lease Exception

Back 48

First Option in lease does not trigger RAP

Front 49

Four Unities for Joint Tenancy w/ Rights of Survivorship

Back 49

PITT

Possession

Interest vest

Title

Time

Front 50

Effect of Inter Vivos Conveyance in JTWROS

Back 50

JTs act together - JTWROS preserved for remainder of interest still owned by JTs. New party TIC with JTs.

JT acts unilaterally - JTWROS severed creating TIC for that interest. Other JT interests unaffected.

Front 51

Res Ispa Loquitur

Back 51

In the absence of direct evidence, negligence may still be rsbly inferred if the instrument that caused the damage was in the exclusive control of the ∆ and the injury was not caused by the ∏.

(there is no other way this could have happened)

Front 52

Anticipatory Repudiation and Leases

Back 52

Leases cannot be repudiated ahead of time. The liability comes due per the terms of the lease. Therefore, the ∏cannot collect full damages until the lease term is over.

Front 53

Damages for Promissory Estoppel

Back 53

Reliance only

(example - aunt offers niece $50K broach if she flies up to get it. Niece buys plane tix. Aunt dies and will devises broach to someone else. Niece can sue for plane tix, not the broach.)

Front 54

Plaintiff's Defense of Contributory Negligence

Back 54

Contributory negligence is generally a complete bar to recovery of damages, however, under the "last clear chance" doctrine, may completely shift damages back to the ∆for failure to avoid injuring ∏.

Front 55

Effect of Bid Withdraw in Auction

Back 55

Acknowledgement by auctioneer of a higher bid serves to reject the lower bid. Withdraw of higher bid therefore does not reinstate lower bid. No bid is accepted until the gavel falls.

Front 56

Assignment (K)

Back 56

of rights due in a contract

Front 57

Delegation (K)

Back 57

of duties in a contract

Front 58

Novation (K)

Back 58

One party releases the other party of all liability (and benefits) under a contract. Creates new agreement and extinguishes the old K.

Front 59

Consent to Search

Back 59

Generally a bar to the Exclusionary Rule if valid consent is given by a person with apparent authority to give consent.

But can be extended too far. Person giving consent (e.g., parent) may let officers into house, then teen's room, but a teen's locked suitcase may be invalid (no key=no apparent authority)

Front 60

Robbery

Back 60

Larceny from a person by violence or intimidation. Specific intent to deprive owner of property.

Front 61

CUT AND PASTE

Back 61

Plaintiff - ∏

Defendant - ∆

Front 62

Some general 1st Amendment Issues

Back 62

--1st amend. rights are made enforceable thru a state through the 14th amend.

--State actor required (significant involvement)

--incorporated status not enough

Front 63

When do Third Party Beneficiary (TPB) rights vest?

Back 63

Rights vest when TPB learns of the initial contract and (i) assents to it or (ii) materially changes position in justifiable reliance on it or (iii) brings suit on it.

Front 64

Best Evidence Rule

Back 64

Production of the original document when attempting to prove the contents therein. However, if original destroyed or lost in good faith

Front 65

Imperfect Self Defense Doctrine

Back 65

In states that recognize it, murder is reduced to voluntary manslaughter when a ∆ unreasonably, but honestly, believed the necessity to respond w/ deadly force.

Front 66

Effect of Merger on Easement

Back 66

Generally, when a two estates become owned by the same party and merge into one property, earlier easements are extinguished and not revived if the property is ever split again.

Front 67

Privileges and Immunity Clause

Back 67

Article IV of the USC. Triggered when state laws discriminate against out-of-state residents' right too earn a living.

Front 68

Assertive Conduct

Back 68

Actions that function as statements

(nodding "yes"), actions that communicate a thought

Front 69

Effect of Life Estate Ending

Back 69

Any interests tied to that LE also end, such as a lease.

Front 70

Battery - Tort

Back 70

(i) Intentional (ii) Harmful or offensive touching to ∏'s person (iii) and causation

Reasonable Person test

∏'s awareness not required (sleeping)

TRANSFERRED INTENT (Fab 5)

Front 71

Oral modification of oral contracts

Back 71

If an oral contract is legal (does not violate the SOF), then the modification is valid unless the modification causes the contract to now require SOF compliance. (i.e. Agree to buy a car for $300 dollars, so no UCC or SOF. Orally modify to $400, ok. Orally modify to $600, not ok - now needs to be in writing to comply with UCC/SOF)

Front 72

Common Law Murder

Back 72

Killing another human being with malice aforethought. Malice can be shown by

1. Intent to kill

2. Intent to cause great bodily harm

3. Depraved heart - reckless indifference to value of human life, or wanton and reckless disregard for human life

4. Felony-murder; felony not causation, but proximate (but for) cause. Under common law, 5 enumerated felonies - BARRK - Burglary, arson, rape, robbery and kidnapping.

Front 73

False Imprisonment - Tort

Back 73

(i) Intent (ii) to confine or restrain ∏ (iii) to a bounded area (iv) of which (a) ∏ is harmed by OR (b) is conscious of, (v) plus causation.

Shopkeeper's Privilege: Reasonable detention (as to duration and manner). Long enough to ascertain truth

TRANSFERRED INTENT (Fab 5)

Front 74

Miranda

Back 74

Statements during custodial interrogations are inadmissible unless ∆ is first warn of right to remain silent and right to an attorney. ∆ must waive these rights knowingly, intelligently, and voluntarily (KIV).

Front 75

Assault - Tort

Back 75

(i) Intentional (ii) causation of (iii) reasonable apprehension of (iv) imminent (v) harmful or offensive touching to ∏'s person.

TRANSFERRED INTENT (Fab 5)

Front 76

Five Unities for Joint Tenancy in the Entirety

Back 76

PITTM

Possession

Interest vest

Title

Time

Marriage

Front 77

Search Incident to Lawful Arrest

Back 77

Search incident to (lawful) arrest (SITA, Chimel rule) allows police to perform warrantless search of arrested person, and the area within the arrestee’s immediate control, in the interest of officer safety, the prevention of escape, and the destruction of evidence.

Front 78

Automobile Search

Back 78

There is a lessened expectation of privacy in a care due to its inherent mobility and difficult in getting a timely search warrant. So with probable cause that a car contains the fruits, evidence, or instrumentalities of a crime, police may search an entire vehicle and its contents without a warrant.

Front 79

Present Recollection Refreshed

Back 79

Witness views document (item, evidence), then testifies from memory. Document not deemed evidence (because the witness is merely testifying from memory).

--Not Hearsay

--No foundational requirements needed.

Front 80

Past Recollection Recorded

Back 80

Witness views document (item, evidence), but still cannot recalls details for testimony. Document may go/be read into into evidence if:

1. It's hearsay, under this exception.

2. Witness has no/incomplete present recollection, and

3. Document was made at time in question or shortly after, and

4. based on witness's personal knowledge, and

5. made or adopted by witness, who must verify the document was true when made, and

6. Document must be authenticated.

Front 81

Assignment of Lease

Back 81

Total remainder of a leasehold.

LL and A/or: Terminates Privity of estate (POE), Privity of Contract (POC) remains.

LL and A/ee: Creates POE. No POC created. (would create POC if A/ee assumes the lease)

Front 82

Sublet of lease or sublease

Back 82

Partial remainder of a leasehold.

LL and A/or: POE or POC remain.

LL and A/ee: No POE or POC created.

A/or & A/ee: POE or POC created.

Front 83

Federal venue in diversity actions

Back 83

Proper (i) in district where any ∆ resides if all ∆s reside in the same state, and (ii) the district where a substantial part of the event/omissions giving rise to case occurred. Venue not based on residency of ∏.

Front 84

FRE 404(b) - prior bad acts

Back 84

permissible to use evidence of a criminal ∆'s prior bad acts to:

1. establish a motive for committing the crime,

2. help ID ∆ as perpetrator, or

3. show opportunity to commit the crime.

NOT admissible to help prove∆'s propensity to act in a manner consistent with a character trait (unless used to impeach if addresses witness's character for truth and veracity).

Front 85

State Police Power

Back 85

Right of states to pass laws for the health, safety and welfare of it's citizens, but not in areas reserved to the federal gov't or preempted by federal legislation, and cannot unduly restrain interstate commerce.

Front 86

Voluntary Manslaughter

Back 86

Intentionally killing another person in the heat of passion and in response to adequate provocation.

Front 87

Involuntary Manslaughter

Back 87

Unintentional killing that results from recklessness or criminal negligence

Front 88

General Remedy for a Real Property K

Back 88

Specific Performance

Front 89

Federal Venue in Diversity is proper...

Back 89

(1) in the district where any ∆ resides if all∆s reside in the same state and (2) the district where a substantial part of events or omissions giving rise to the claim occurred.

Front 90

Rule 11

Back 90

By presenting a document to the court, a lawyer certifies her belief that the document is

(1) not presented for an improper purpose,

(2) non frivolous,

(3) Factual assertions (or denials of such) have evidentiary support (or, in good faith, will)

Front 91

Proper Recording of an instrument (deed, security, etc) gives what presumption in future claims?

Back 91

Constructive Notice

Front 92

Character Evidence

Back 92

Not allowed to prove that a party acted in conformity with those traits on a particular occasion.

Front 93

General, the US Constitutional challenges are ___________ against a private company.

Back 93

Inapplicable

Front 94

A complete defense against libel or slander is...

Back 94

that the statement is the truth.

Front 95

Specific Performance

Back 95

An equitable remedy available when the legal remedy is inadequate. Often seen in specially manufactured goods, one-of-a kind items, and real property.

Front 96

Effect of Pardon on Bringing in Convictions as Evidence

Back 96

Conviction cannot be used as impeachment purposes, as long as (1) the action was on finding of innocence, or (2) or witness not subsequently convicted of another felony.

Front 97

Right of Counsel for pre-indictment witness identification (lineup)

Back 97

No right of counsel required. Only for post-indictment

Front 98

Specific Jurisdiction

Back 98

When a cause of action arises out of or closely related to a ∆contact with the forum state, jurisdiction is appropriate, even if the contact is the sole connection with forum state.

Front 99

Evidence- Forfeiture by Wrongdoing

Back 99

Party who intends and makes someone "not available" to testify forfeits all rights to object to the subsequent hearsay.

Front 100

Larceny by Trick or False Pretense

Back 100

LBT = possession

FP = Title

Front 101

Warrants and Anonymous Tips

Back 101

Warrants based solely on anon. tips with no further independent corroboration of probable cause are invalid.

Front 102

Warrants and Informants

Back 102

Reliable and known informants can serve as probable cause for a warrant.

Front 103

Burden in Criminal Cases

Back 103

The state cannot force a ∆to disprove an element of a criminal charge. Rather, the prosecution must prove the elements of the crime beyond a reasonable doubt.

The burden would shift to the∆ in an affirmative defense, but still not for the elements of the crime, only for the elements of the defense.

Front 104

Rational Basis Review

Back 104

Law must be rationally related to a legitimate state interest.

--No protected class

--No fundamental rights

Front 105

Sctrict Scrutiny

Back 105

Law must be narrowly tailored (least restrictive means) to serve a compelling state interest.

--Protected Class

--Fundamental Rights

Front 106

Intermediate Scrutiny

Back 106

Law must further an important government interest by means that are substantially related to that interest.

--Quasi-Suspect (gender)

Front 107

"Plain-Feel" Doctrine

Back 107

If during a legal pat-down an officer feels an object that has physical characteristics that make it immediately obvious that it is a weapon, contraband, or evidence of a crime.

Front 108

Ex Post Facto

Back 108

With retroactive effect

Front 109

May a jury member testify to a mental process concerning a verdict?

Back 109

No. Even when the mental process was based on a misunderstanding of the law.

Front 110

Privileges and Immunity Clause

Back 110

Non-resident citizens are protected against discrimination against fundamental rights or essential activities, including the pursuit of employment, transfer of property, access to state courts and engaging int the political process.

--Article IV of US Constitution

Front 111

Exception to 3rd Party Standing

Back 111

When a "special relationship" exists.

Front 112

Timeline to Submit Answer to Complaint (FRCP)

Back 112

21 days after complaint, or 14 days after amended complaint served (unless 21 day deadline is later)

Front 113

Equals protection, 14th Amendment

Back 113

No state shall deny to a person equal protect under the law

Front 114

Timeline - Demand for Jury Trial (FRCP)

Back 114

withing 14 days of the last pleading

Front 115

Due Process, 14th Amendment

Back 115

Cannot get a worse sentence on retrial for successful appealing in the first place (no retaliatory punishment for exercising rights)

Front 116

Classification of Legacies, Devises & Bequests

Back 116

1. Specific

2. General

3. Demonstrative

4. Residuary

Front 117

Specific Devises

Back 117

Can be distinguished with reasonable accuracy from other property in testator's estate.

e.g., My car to the gardner

Front 118

General Devises

Back 118

Can be satisfied from general assets of this estate.

e.g., $50,000 to my hairdresser

Front 119

Demonstrative Devise

Back 119

A pecuniary gift that identifies a particular fund or asset as source of payment. Will fund as a general devise if the source is inadequate to fund the devise.

e.g., $20,000 from my Mircosoft Stock. If testator sold the stock before death, $20K from general estate funds.

Front 120

Residuary Devise

Back 120

Leftover of estate after general, specific and demonstrative legacies satisfied.

Front 121

Lapse

Back 121

If a beneficiary predeceases testator, and absent an alternate disposition, the gift fails and goes to the residuary.

Front 122

Anti-Lapse

Back 122

Statutory alternate disposition of lapsed bequests and devises. Absent a contrary intent evidenced in a will, beneficiaries descendants take per stirpes.

Front 123

Execute Will - Formailities

Back 123

A writing that the testator signs at the end with present testamentary intent in the joint presence of two attesting witnesses.

Front 124

Holographic Will

Back 124

Entirely handwritten will by testator. Not legal in Florida, even if validly executed in another state.

Front 125

Will signature

Back 125

Must be at the end of the will.

May be signed on testator's behalf in testator's presence and at testator's direction.

Front 126

Wills - Presence Standard

Back 126

Majority - Conscious Presence

--occurs within range of physical senses

Minority - Scope of Vision

--actually see of able to see signature

Florida has not established - discuss both

Front 127

Wills - Witness Signature

Back 127

Witness can either see the testator sign, or hear the testator acknowledge the signature.

Both witness must sign in each other's presence.

Front 128

Codicil

Back 128

Supplement to will that alters, amends or modifies will. Needs same formalities as will.

Front 129

Will - Subsequent marriage

Back 129

Common law: testator's marriage after executed will revokes the will.

Florida Law: if testator unmarried at time of will execution, will not revoked on marriage.

Front 130

Wills - Divorce

Back 130

Divorced party in will treated as predeceased. Separation has no effect on will.

In Florida, remarriage does not revalidate provisions

Front 131

Pretermitted spouse or child - Wills

Back 131

Party receives share as if intestate.

Front 132

Class Gift - Wills

Back 132

If a member of a class dies, only surviving members take. If anti-lapse applies, descendants of dead member can take.

Front 133

Wills - Abatement

Back 133

When estate not sufficient to fund all debts and devises, property reduced or abated. Florida law order of pro rata abatement: (1) intestate prop (2) residuary (3) general and (4) demonstrative & specific devises.

Front 134

Ademption

Back 134

If subject matter of specific devise is missing/destroyed, beneficiary takes nothing.