MEE One Sheets! Flashcards

Question

Is Civil Procedure tested on every MEE?

Answer 1

No, Civil Procedure is not tested on every MEE as it used to be. ## Footnote This change is likely due to the National Conference of Bar Examiners adding Civil Procedure to the Multistate Bar Exam in 2015.

Answer 2

Personal jurisdiction is tested approximately once every five years on the MEE.

Answer 3

Personal jurisdiction can be general or specific.

Answer 4

"Federal district courts may exercise personal jurisdiction to the same extent as the courts of general jurisdiction of the state in which the district court sits."

Answer 5

"State courts of general jurisdiction may exercise personal jurisdiction over nonresident defendants to the extent authorized by both the state's long-arm statute and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution." ## Footnote Then state: "The Due Process Clause of the Fourteenth Amendment permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice."

Answer 6

SMJ is the power of a court to hear a certain type of case.

Answer 7

1. Federal-question jurisdiction 2. Diversity jurisdiction 3. Supplemental jurisdiction

Answer 8

The federal question must appear on the face of the plaintiff's well-pleaded complaint.

Answer 9

1. Complete diversity of citizenship between the plaintiffs and defendants 2. Amount in controversy must be over $75,000.00.

Answer 10

A person is domiciled where it is her permanent home, a place where the person intends to remain indefinitely.

Answer 11

Supplemental jurisdiction arises when there is a jurisdictional basis for one claim but not the other.

Answer 12

Defendants may remove an action from state court to federal court if the plaintiff could have initially brought the case in federal court.

Answer 13

When venue is tested, the MEE tends to test general rules.

Answer 14

Venue is proper in a district where (1) any defendant resides if all defendants reside in the same state, (2) in a district where a substantial part of the events or omissions giving rise to the claim occurred, or (3) a substantial part of property that is subject to the action is situated.

Answer 15

A corporate defendant is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.

Answer 16

Federal courts can transfer a case to another federal district for the convenience of the parties and witnesses and in the interest of justice. The new forum must have subject-matter jurisdiction and personal jurisdiction.

Answer 17

Transferring to a more appropriate forum applies the law of the transferor forum, while transferring to a proper venue applies the law of the transferee court.

Answer 18

Summary judgment can be granted only if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.

Answer 19

A motion for summary judgment may be supported by depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.

Answer 20

The moving party must produce evidence to show there is no genuine issue of material fact.

Answer 21

The nonmoving party must produce evidence to show that there is a genuine issue of material fact for trial.

Answer 22

Temporary remedies include preliminary injunctions and temporary restraining orders (TROs).

Answer 23

A TRO can be issued without notice to the adverse party if there is a risk of immediate and irreparable injury, lasting no longer than 14 days unless extended.

Answer 24

A preliminary injunction is equitable relief aimed at preserving the status quo, requiring trial within six months unless stipulated otherwise.

Answer 25

The four factors are: (1) harm, (2) evaluation of injuries, (3) likelihood of prevailing, and (4) the public interest.

Answer 26

Work product is any material prepared in anticipation of litigation.

Answer 27

They may be discoverable if the other party can show substantial need and undue hardship.

Answer 28

No, an attorney's mental impressions are never discoverable.

Answer 29

Yes, final judgments are generally appealable, while nonfinal judgments are generally not.

Answer 30

Exceptions include final orders in cases with multiple claims and parties, orders involving injunctions, and interlocutory orders by leave.

Answer 31

Issue preclusion prevents issues that were actually litigated and decided in a previous case from being litigated again.

Answer 32

Claim preclusion prevents a claim that has been litigated to a final judgment on the merits from being relitigated by the parties or their privies.

Answer 33

Conflict of Laws issues are embedded in other MEE subject areas and will not be a stand-alone question. It is commonly tested with Family Law, Civil Procedure, or Decedents' Estates.

Answer 34

A state must recognize final judgments of other states as long as the judgment is on the merits and the other state had jurisdiction.

Answer 35

A marriage valid under the law of the state where it was contracted will be valid elsewhere unless it violates a strong public policy of the state with the most significant relationship to the spouses.

Answer 36

Incest or polygamy may violate public policy. Blood test requirements, marriage license requirements, and recognition of common law marriage do not.

Answer 37

Personal jurisdiction over both spouses is not necessary to render a divorce decree, but it is necessary for a binding property division or support order.

Answer 38

A divorce decree must be granted full faith and credit by other states if the court rendering the decree had jurisdiction.

Answer 39

Some states apply the law of the state where the contract was executed, while others apply the law of the state with the most significant relationship to the parties.

Answer 40

A federal district court sitting in diversity must apply the choice of law approach prevailing in the state in which it sits.

Answer 41

A court may transfer a case to any district court if convenience and the interest of justice favor a transfer, applying the laws of the original transferor court.

Answer 42

If a case is transferred from an improper forum to a proper forum, the transferee court will apply its own law.

Answer 43

A court will generally apply its own procedural laws, including its own statute of limitations, unless the claim would be barred by the law of the state with a more significant relationship to the parties.

Answer 44

Some states have borrowing statutes indicating that the other state's statute should be used in certain cases.

Answer 45

When a statute of limitations is specific to a particular claim and created by the law that created the cause of action, courts may characterize it as substantive.

Answer 46

Some states use an interest analysis to resolve choice of law issues, including statute of limitations issues.

Answer 47

Generally, the specified state law will apply unless: (1) the chosen state has no substantial relationship to the parties or transaction, or (2) applying the chosen law would contradict a fundamental policy of a state with a materially greater interest.

Answer 48

The law of the state of incorporation governs existence, structure, and internal matters such as capacity and shareholder's rights.

Answer 49

Rights and liabilities (external matters) are determined by the state with the most significant relationship.

Answer 50

A jurisdiction uses the 'most significant relationship' approach, considering four factors: (1) place of injury, (2) place of conduct causing injury, (3) domicile/residence/nationality of parties, (4) place of relationship between parties. ## Footnote Mnemonic: Can't Dance, Really.

Answer 51

A court generally uses the law of the situs for land, but may consider which state has the most significant relationship if it makes more sense.

Answer 52

At common law, it is determined under the law of the state where the testator was domiciled at death. Under the Uniform Probate Code (UPC), a will is valid if it complies with the law of the state where executed or where the testator was domiciled. ## Footnote Many non-UPC states have similar statutes.

Answer 53

It is governed by the law of the state in which the decedent was domiciled at the time of death.

Answer 54

It is governed by the law of the situs, or the place where the property is located.

Answer 55

Whether a child is entitled to inherit depends on the law of the intestate's domicile at the time of death, except for real property which is governed by the law of the situs.

Answer 56

Congress has the power to regulate interstate commerce. States can regulate in its absence, but laws may be unconstitutional if discriminatory or burdensome. ## Footnote If the law is discriminatory, it is usually unconstitutional under a strict scrutiny standard. If it merely burdens interstate commerce, it is more likely to be constitutional.

Answer 57

Congress can regulate channels, instrumentalities, persons, things in interstate commerce, or anything that has a substantial effect on interstate commerce. ## Footnote This includes economic and non-economic activities that substantially affect interstate commerce.

Answer 58

Congress cannot commandeer states to enforce federal laws. It can regulate directly or indirectly by threatening funding. ## Footnote This is under Congress's spending power.

Answer 59

States lack the power to discriminate against or unreasonably burden interstate commerce. ## Footnote A state law that discriminates against interstate commerce is usually unconstitutional.

Answer 60

The state must show that the law serves a compelling state interest and that there is no reasonable nondiscriminatory alternative. ## Footnote This is analyzed under strict scrutiny.

Answer 61

It is valid only if it serves an important state interest and does not impose an unreasonable burden on interstate commerce. ## Footnote A state law that merely burdens interstate commerce is more likely to be constitutional.

Answer 62

It allows states acting as market participants to favor their own residents. ## Footnote This is an exception to the Dormant Commerce Clause.

Answer 63

Congress can enforce constitutional rights but cannot expand them. ## Footnote This is a key principle regarding Congress's powers.

Answer 64

State action is required; the plaintiff needs a government actor or action fairly attributable to the government. ## Footnote One cannot sue a business or private individual for violating free speech rights under the First Amendment.

Answer 65

State action is present when a state passes a law, permits officials to act, or when private action is closely controlled by the state. ## Footnote This includes traditional government functions like conducting elections.

Answer 66

1. Strict scrutiny: Law must be necessary for a compelling interest. 2. Intermediate scrutiny: Classification must be substantially related to an important interest. 3. Rational basis: Plaintiff must prove law is not rationally related to a legitimate interest.

Answer 67

Freedom of speech is heavily tested, especially in contexts like trespass or criminal claims. ## Footnote Start essays with: 'The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.'

Answer 68

The government must show that the regulation is necessary to serve a compelling state interest and is narrowly tailored. ## Footnote This applies to regulations affecting free speech.

Answer 69

Forbidding communication about certain ideas.

Answer 70

Forbidding communication about a certain viewpoint.

Answer 71

A law regulating conduct that places an incidental burden on speech is constitutional if it is narrowly tailored to an important governmental interest and unrelated to the suppression of the speech.

Answer 72

A law regulating unprotected speech must pass rational basis scrutiny.

Answer 73

1. Speech inciting immediate lawless or violent behavior (clear and present danger). 2. Fighting words. 3. True threats or words as conduct. 4. Obscene speech.

Answer 74

Speech directed at inciting and likely to incite imminent lawlessness.

Answer 75

Words likely to incite an immediate violent reaction.

Answer 76

It examines whether the speech appeals to a prurient interest in sex, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value.

Answer 77

It must meet the Central Hudson test, which includes four criteria regarding lawfulness, governmental interest, advancement of that interest, and narrow tailoring.

Answer 78

Restrictions in public forums must be content neutral, narrowly tailored to serve an important governmental interest, and leave open alternative channels of communication.

Answer 79

Regulations must be reasonably related to legitimate pedagogical concerns.

Answer 80

Stopping speech before it happens is generally presumed unconstitutional.

Answer 81

The press has no greater free speech rights than anyone else and may publish lawfully obtained information of public concern.

Answer 82

Independent political expenditures by for-profit corporations constitute free speech protected by the First Amendment.

Answer 83

Neither the federal government nor the state may take private property for public use without just compensation.

Answer 84

A permanent physical occupation of property regardless of public interests.

Answer 85

When a regulation deprives an owner of all economically beneficial use of her property or destroys all reasonable investment-backed expectations.

Answer 86

When the government enacts a regulation that restricts the owner's use of property as a condition for allowing development.

Answer 87

It precludes federal courts from exercising jurisdiction over suits by private parties seeking damages from the state, with certain exceptions.

Answer 88

Article 2 of the Uniform Commercial Code (UCC) applies to transactions in goods. Goods are 'things moveable' at the time of identification to the contract. A contract under Article 2 may be made in 'any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.'

Answer 89

Offer, acceptance, and consideration are needed to form a contract.

Answer 90

A person makes an offer when the person communicates to another a statement of 'willingness to enter into a bargain' so that the other understands that 'his assent to the bargain is invited and will conclude it.' The terms of an offer need to be reasonably certain.

Answer 91

At common law, a statement is a counteroffer when the terms of the initial offer are changed (mirror-image rule).

Answer 92

A promise to hold an offer open requires consideration in order to be binding, unless the UCC firm offer exception applies.

Answer 93

An acceptance is effective upon dispatch (the mailbox rule).

Answer 94

A rejection is a manifestation of intent to not accept the offer. It terminates the offeree's power to accept an offer and is effective when received by the offeror.

Answer 95

Consideration is a legal detriment or bargained-for exchange. A promise to make a gift does not constitute consideration.

Answer 96

Under common law, promising to perform a legal duty already owed to a promisor is not valid consideration, with exceptions for changes in duty or unforeseen circumstances.

Answer 97

Some states recognize an exception to past consideration limitations where a promise is made after receipt of a significant benefit, usually in an emergency.

Answer 98

Under the UCC, only good faith is needed to modify a contract.

Answer 99

Promissory estoppel is a substitute for consideration. If there is (1) a promise, (2) reliance that is foreseeable and justifiable, and (3) enforcement is necessary to avoid injustice, the promise will be enforced.

Answer 100

A contract for the sale of goods doesn't fail due to missing terms if the parties intended to make a contract and there is an appropriate remedy for breach. Gap fillers include course of performance, course of dealing, and trade usage.

Answer 101

Under common law, a party must 'substantially perform' its contractual obligations to demand performance, while UCC Article 2 requires perfect tender for one-shot deals.

Answer 102

A contract is divisible if it is apportionable and the parties would have contracted for each part separately, allowing a party to collect payment for parts performed.

Answer 103

A buyer can generally reject goods for any reason under the perfect-tender rule, with exceptions such as installment contracts.

Answer 104

A buyer can revoke acceptance of goods when the nonconformity substantially impairs the value to him or if he accepted the goods based on a reasonable belief.

Answer 105

A buyer can revoke acceptance if: (1) the nonconformity would be cured but wasn't, (2) the nonconformity was difficult to discover or due to seller's assurances, (3) he revokes within a reasonable time after discovering the nonconformity, and (4) he revokes before any substantial change in the condition of the goods not caused by their own defect. ## Footnote A buyer who revokes may recover the purchase price paid. (S2020, J2010)

Answer 106

Anticipatory repudiation occurs when one party unequivocally manifests to the other that they cannot or will not perform their obligations under the contract before performance is due. ## Footnote A mere expression of doubt is not sufficient.

Answer 107

Prospective inability to perform occurs when a party has reasonable grounds for insecurity that the other party is unable or unwilling to perform. This is merely doubt and does not rise to anticipatory repudiation. ## Footnote Under the UCC, the party may demand adequate assurance of performance in writing.

Answer 108

The party who has repudiated can retract their repudiation unless the other party has cancelled the contract, materially changed their position in reliance on the repudiation, or indicated that they consider the repudiation to be final.

Answer 109

A contract within the Statute of Frauds must be evidenced by a writing signed by 'the party to be charged' that reasonably identifies the subject matter, indicates that a contract has been made, and states the essential terms with reasonable certainty. ## Footnote Contracts include those made in consideration of marriage, that cannot be performed in a year, for the sale of land, promises by an executor, sale of goods for $500 or more, and suretyship contracts.

Answer 110

A contract for the sale of goods for $500 or more is not enforceable unless there is a writing signed by the party against whom enforcement is sought, sufficient to indicate that a contract has been made. ## Footnote Exceptions include merchant confirmatory memo, part performance, specially manufactured goods, and judicial admissions.

Answer 111

A contract is voidable when a party's manifestation of assent is induced by an improper threat that leaves the party no reasonable alternative.

Answer 112

Under Article 2, affirmations of fact relating to goods that are part of the basis of the bargain create express warranties that the goods will conform to those affirmations. A breach occurs if they do not conform.

Answer 113

The normal measure of damages for breach of contract is expectation damages, which aim to give the nonbreaching party the benefit of their bargain. ## Footnote Expectation damages must be foreseeable and proven with reasonable certainty.

Answer 114

Punitive damages are generally not recoverable in a breach of contract action unless the conduct constituting the breach is also a tort for which punitive damages can be recovered.

Answer 115

Restitution, also called unjust enrichment or quantum meruit, allows a party to recover for any benefit conferred by way of part performance in excess of the loss caused by their own breach.

Answer 116

As a general rule, a party cannot recover damages for a loss that could have been avoided by reasonable efforts.

Answer 117

The articles of incorporation are filed with the state, and if in conflict with bylaws, the articles control. A corporation is not generally liable for a contract entered into prior to incorporation unless it expressly or impliedly adopts (ratifies) the contract.

Answer 118

Shareholders are only owners and do not manage the corporation. They generally just have annual meetings, which require written notice 10-60 days prior.

Answer 119

Written notice must state the time, place, and purpose of the meeting. A quorum (majority of all outstanding shares) must be present to hold a vote.

Answer 120

Directors manage the corporation and act as a body by voting. They may exercise all corporate powers not limited by the articles of incorporation or a shareholders' agreement.

Answer 121

Directors must act on an informed basis, in good faith, and believe their actions are in the best interest of the company. The burden of proof lies with the party claiming a breach.

Answer 122

A director must act in good faith and with a reasonable belief that their actions are in the corporation's best interest. The business-judgment rule does not apply if there is a duty of loyalty issue.

Answer 123

1. A director is on both sides of a transaction. 2. A director competes with the corporation. 3. A corporate officer usurps a corporate opportunity.

Answer 124

The Revised Model Business Corporation Act includes three safe harbors: 1. Approval by disinterested directors, 2. Approval by disinterested shareholders, 3. Transaction judged fair to the corporation.

Answer 125

Yes, an LLC operating agreement may waive the duty of loyalty as long as it is not 'manifestly unreasonable.'

Answer 126

There needs to be a quorum present, and more votes must be cast in favor of the resolution than against it.

Answer 127

The record owner on the record date is entitled to vote.

Answer 128

A shareholder may vote by proxy, which can be appointed in writing or via a verifiable electronic transmission. A proxy is generally revocable.

Answer 129

A proxy is not revocable if it explicitly states it's irrevocable and is coupled with an interest (e.g., sale of shares). Many states say a proxy is valid for 11 months unless otherwise stated.

Answer 130

Be aware of when shareholders can sue and be sued.

Answer 131

A shareholder may file an action to establish that the acts of the directors are illegal, fraudulent, or willfully unfair and oppressive to either the corporation or the shareholder.

Answer 132

A direct suit is appropriate when the wrong done amounts to a breach of duty owed to the individual personally.

Answer 133

An example includes a shareholder suing for denial of preemptive rights, payment of a dividend, or oppression in a close corporation.

Answer 134

A derivative suit is appropriate when the injury is caused to the corporation and a shareholder is trying to enforce the corporation's rights.

Answer 135

A shareholder must meet three requirements: (1) standing to bring a lawsuit, (2) adequacy (the shareholder represents the interests of the corporation), and (3) demand (generally, a written demand must be filed and waited on for 90 days).

Answer 136

Standing requires the shareholder to be a contemporaneous owner at the time of the alleged act or omission.

Answer 137

Piercing the corporate veil is when courts disregard the LLC form and hold a shareholder personally liable for corporate debt.

Answer 138

A plaintiff must show that shareholders abused the privilege of incorporating, which generally includes undercapitalization, failing to follow formalities, commingling of assets, confusion of business affairs, or deception of creditors.

Answer 139

A shareholder has a right to inspect corporate books and records as long as the demand is made in good faith and for a proper purpose.

Answer 140

A shareholder must state (1) his purpose, (2) the records he desires to inspect, and (3) that the records are directly connected to his purpose.

Answer 141

LLCs are sometimes tested instead of Corporations; be familiar with the general principles of the law of LLCs, especially piercing the LLC veil and fiduciary duties.

Answer 142

Articles of organization must be filed to create an LLC.

Answer 143

If a member leaves, it leads to dissociation of that member, but does not lead to winding up or dissolution unless the other members unanimously agree to dissolve the LLC.

Answer 144

Generally, individual members are not liable for losses unless the court decides to pierce the LLC veil or if proper procedures for dissolution and winding up have not been followed.

Answer 145

The basic elements of a crime are act, intent, causation, and concurrence.

Answer 146

Causation requires showing that the defendant's acts were both the actual and proximate cause of the outcome. Proximate cause is present if the outcome was foreseeable.

Answer 147

A person is guilty as an accomplice if he assists or encourages the principal with dual intents: (1) the intent to assist the primary party, and (2) the intent that the primary party commit the offense charged.

Answer 148

The mens rea of murder is malice aforethought, which can be satisfied by intent to kill, knowledge that acts would kill, intent to inflict great bodily harm, or reckless disregard of an extreme risk to human life.

Answer 149

First-degree murder is the intent to kill with premeditation and deliberation, which may require proof of a cool mind capable of reflection.

Answer 150

Second-degree murder is satisfied by the intent to inflict great bodily harm or by acting with reckless disregard of an extreme risk to human life.

Answer 151

Felony murder applies to any killing that occurs during the commission of a felony, an attempt to commit a felony, or a flight from a felony, provided the felony is inherently dangerous.

Answer 152

Voluntary manslaughter is the intentional killing of a human being without malice aforethought, committed in the heat of passion due to adequate provocation.

Answer 153

Involuntary manslaughter occurs when the defendant causes the death of another by engaging in conduct that creates an unreasonable risk of death or serious bodily injury, typically requiring recklessness.

Answer 154

The mens rea for attempt is 'intent' and the actus reus requires 'acts beyond mere preparation.'

Answer 155

To prove attempt, the prosecution must show that (1) the defendant intended to commit the crime, and (2) the defendant's acts went sufficiently beyond mere preparation.

Answer 156

Duress occurs when the defendant commits a crime due to a threat or use of force by another, causing reasonable fear of imminent death or serious bodily injury.

Answer 157

The M'Naghten test requires the defendant to prove he suffered a disease of the mind that caused a defect of reason, resulting in a lack of ability to know the wrongfulness of his actions.

Answer 158

When the Fourth Amendment prohibition against unreasonable searches and seizures is tested, start your essay by identifying the Fourth Amendment.

Answer 159

A person has standing to raise a Fourth Amendment challenge if he has an expectation of privacy in the thing searched or seized.

Answer 160

The Fourth Amendment applies to searches or seizures conducted by government agents in areas where the complaining individual has a reasonable expectation of privacy. An agent usually needs a warrant, but there are exceptions.

Answer 161

Exceptions include exigent circumstances, search incident to arrest, consent, the automobile exception, plain view, inventory searches, special needs, and Terry stops/frisks.

Answer 162

If officers are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to it, they may seize it without a warrant.

Answer 163

The Fourth Amendment permits detention of an individual for a brief period if the police have 'reasonable, articulable suspicion' that the individual has been recently involved in criminal activity.

Answer 164

If the essay tests confessions, be able to distinguish between the Fourteenth Amendment, Sixth Amendment, and Fifth Amendment, as well as when the rights under those amendments attach.

Answer 165

The standard is whether the police subjected the suspect to coercive conduct and whether the conduct was sufficient to overcome the will of the suspect.

Answer 166

The Sixth Amendment provides that the accused has the right 'to have Assistance of Counsel for his defense.' It attaches when judicial proceedings have begun.

Answer 167

It attaches when the accused is formally charged via indictment, arraignment, preliminary hearing, etc. It does not attach upon arrest.

Answer 168

Any attempts to deliberately elicit an incriminating statement about the offense charged, in the absence of counsel or a knowing, intelligent, and voluntary waiver, violates the Sixth Amendment.

Answer 169

Law enforcement officers are required to read Miranda warnings to a suspect when the suspect is subjected to a custodial interrogation.

Answer 170

Warnings are not required if the questions are intended to protect public safety (e.g., to secure weapons after a shooting).

Answer 171

A suspect is in custody if there is a formal arrest, or a restraint on freedom of movement to the degree associated with a formal arrest.

Answer 172

Interrogation includes questioning initiated by law enforcement officers or any words or actions that the police should know are reasonably likely to lead to an incriminating response from the suspect.

Answer 173

The suspect must make a 'knowing, intelligent, and voluntary' waiver.

Answer 174

For both the right to remain silent and the right to counsel, the suspect must be explicit, unambiguous, and unequivocal in making the request.

Answer 175

The statements are excluded from the prosecutor's case-in-chief. The physical fruits are not excluded if the statements were made voluntarily.

Answer 176

Intestate succession explains how property is divided if a person dies without a will or if the will is invalidated in part or in whole. It is frequently tested on the MEE.

Answer 177

There are two schemes to divide property among the decedent's children: per capita at each generation or per capita with representation (modern per stirpes).

Answer 178

To decide who gets the shares of the estate, find the first generation where there are issue living. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent but left issue surviving.

Answer 179

This method passes each deceased person's share on to her issue(s) instead of combining all shares and dividing them equally.

Answer 180

The civil law consanguinity method and the parentelic method adopted by the UPC.

Answer 181

Heirship is determined by degree of relationship: all persons of the same degree of relationship to the decedent take equal shares.

Answer 182

Descendants of the decedent's parents take to the exclusion of descendants of the decedent's grandparents.

Answer 183

A child includes adopted children, children born out of wedlock, and half-bloods (but not stepchildren!).

Answer 184

Advancements refer to gifts given to a child during the decedent's lifetime and whether they should be deducted from the child's inheritance.

Answer 185

A lifetime transfer to an heir was presumptively treated as a down payment on the heir's intestate share.

Answer 186

Most states today presume a lifetime transfer is a gift and is ignored in computing the heir's intestate share unless evidence shows it was intended as an advancement.

Answer 187

This doctrine applies when there is a will. A lifetime gift is not a prepayment unless specific conditions are met.

Answer 188

The will must be in writing, signed by the testator, witnessed by two witnesses, and the testator must be 18 or older and intend the document as their will.

Answer 189

Holographic wills are unwitnessed wills that are valid if signed and, according to the UPC and some states, if the material portions are in the testator's handwriting.

Answer 190

The UPC adopts the dispensing power under which a court can validate a will if there is clear and convincing evidence that the decedent intended the document to be her will.

Answer 191

A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty.

Answer 192

The writing must exist at the time the will is executed. ## Footnote The UPC and some states recognize the right of a testator to dispose of tangible personal property by a signed memorandum, whether prepared before or after the execution of the will.

Answer 193

Revocation can occur by physical act, such as executing a new will or cancelling the existing will, with intent to revoke. ## Footnote The revocation can be done by the testator or someone acting at the testator's direction and in his 'conscious presence'.

Answer 194

Under this doctrine, a first will isn't revoked if a later will is found invalid due to a mistaken assumption of law or fact. ## Footnote The revocation is ineffective if it appears the testator wouldn't have revoked the bequest had they had accurate information.

Answer 195

Divorce revokes gifts in favor of a spouse, but there must be an actual divorce or annulment, not just a filing. ## Footnote This is important to note for estate planning.

Answer 196

The general rule is that if a beneficiary does not survive the testator, the gift will lapse or fail. ## Footnote However, antilapse statutes allow gifts to be saved if the beneficiary was related by blood and had surviving issue.

Answer 197

An individual who feloniously and intentionally kills the decedent forfeits all benefits from the decedent's estate. ## Footnote This includes various shares and benefits, but does not apply if the killing was accidental.

Answer 198

If specifically devised property is not in the testator's estate at death, the bequest adeems, meaning the gift fails. ## Footnote If the testator replaced the property or had unpaid insurance proceeds, the beneficiary may receive that instead.

Answer 199

Disclaimed property will pass as if the person disclaiming had failed to survive the testator. ## Footnote An antilapse statute may apply; otherwise, the gift falls into the residuary.

Answer 200

Abatement occurs when the assets of an estate are insufficient to satisfy all gifts, reducing gifts in a specific order: intestate property, residuary gifts, general gifts, and specific gifts.

Answer 201

A testator must know the nature and extent of their property, the natural objects of their bounty, the nature of the instrument, and the disposition being made. ## Footnote The burden of proof lies on the contestant to show lack of capacity.

Answer 202

Undue influence occurs when the wrongdoer exerts influence that overcomes the testator's free will. ## Footnote The burden is on the contestant to show susceptibility, opportunity, disposition, and that the will is a product of undue influence.

Answer 203

If there is a hearsay question, remember to use the DIA approach in your answer to get the most points.

Answer 204

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Answer 205

Hearsay is not admissible unless it comes within an exception.

Answer 206

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused. ## Footnote (J2017, F2016, J2013)

Answer 207

A present sense impression is a statement describing or explaining an event or condition made while or immediately after the declarant perceived it. ## Footnote (J2017, F2016, J2013, F2013)

Answer 208

These statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause. ## Footnote (J2018, J2013, F2008)

Answer 209

A record that is on a matter that the witness once knew about, but now cannot recall well enough to testify fully and accurately, which was made while the matter was fresh in the witness's memory, may be read into evidence. ## Footnote (J2016)

Answer 210

The statement shows a declarant's mental, emotional, or physical condition (including motive, intent, or plan). ## Footnote (02020, F2020)

Answer 211

A witness's prior identification is not considered hearsay. ## Footnote (F2016)

Answer 212

A statement made by an opposing party offered against that party is not hearsay. ## Footnote (02020, F2020, J2018, J2017, J2016)

Answer 213

A statement that a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it had a tendency to expose the declarant to civil or criminal liability. The declarant must be unavailable. ## Footnote (O2020, J2020)

Answer 214

Public records may be admitted in some circumstances but not matters observed by law enforcement personnel when proffered by the prosecutor against the defendant in a criminal case. ## Footnote (O2020)

Answer 215

Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. ## Footnote (F2023, F2020, J2018, F2013, F2012, F2010)

Answer 216

All relevant evidence is admissible unless a statute or rule says otherwise, or the probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Answer 217

A witness must have knowledge of the matter she testifies about. A lay witness must have personal knowledge. Her opinion must be rationally based on her perception; helpful; and not based on scientific, technical, or specialized knowledge.

Answer 218

A lay witness must have personal knowledge, while an expert witness does not need personal knowledge but can testify based on facts made aware of at trial or through other means. ## Footnote (J2022, J2018, F2011, F2010)

Answer 219

Any party may impeach a witness, even the party that called the witness.

Answer 220

There are seven ways to impeach a witness.

Answer 221

Prior inconsistent statements can be used as substantive evidence if they fall within a hearsay exception or exclusion. The witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used, unless certain conditions apply.

Answer 222

The witness must be confronted on the stand, and extrinsic evidence can only be used if the witness is asked about the bias first.

Answer 223

The admissibility depends on the nature of the crime, the amount of time since the conviction, and whether the witness is a defendant. ## Footnote Mnemonic=NAD

Answer 224

Questioning about acts that are probative of truthfulness or untruthfulness is permitted, but extrinsic evidence is not allowed.

Answer 225

No, the witness cannot testify to specific facts, but extrinsic evidence is permitted.

Answer 226

Sensory deficiencies refer to the ability to observe, remember, or relate accurately. Extrinsic evidence is permitted.

Answer 227

If a witness makes a mistake or lies during direct examination, they may be contradicted, and extrinsic evidence can be used if they don't admit the mistake.

Answer 228

Character evidence is generally inadmissible to prove that someone acted in accordance with their character at the time the event occurred.

Answer 229

Character evidence is permitted when character is an essential element of the case, such as in negligent entrustment, defamation, or child custody.

Answer 230

Generally inadmissible in the prosecutor's case-in-chief, but the defendant may introduce evidence of a pertinent character trait. The prosecutor may rebut with reputation, opinion, or specific acts.

Answer 231

If a statement is testimonial, the declarant is unavailable, and the defendant did not have the opportunity to cross-examine the declarant, admission of the statement violates the defendant's right to confrontation.

Answer 232

Yes, even if evidence is relevant, it can be excluded due to privilege or policy reasons.

Answer 233

Examples include attorney-client privilege, spousal privileges, physician-patient privilege, and psychotherapist-patient privilege.

Answer 234

No, an offer to settle is not admissible to prove the validity of a disputed claim.

Answer 235

No, an offer to pay medical expenses is not admissible to prove liability or the existence of an injury.

Answer 236

Subsequent remedial measures are not admissible to prove negligence or liability but may be used for impeachment or to prove ownership, control, or feasibility of precautionary measures if disputed.

Answer 237

No, the existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership, or control, or for impeachment.

Answer 238

Marriage and divorce are not heavily tested. Common law marriage may be tested, but is usually not found to exist on the MEE. If common law marriage is recognized in one state, it will be recognized in others.

Answer 239

To establish a common law marriage, the proponent must show: capacity to enter into a marital contract, a present agreement to be married, cohabitation, and holding out a marital relationship. ## Footnote Mnemonic: CACH

Answer 240

A marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state with the most significant relationship to the spouses and the marriage.

Answer 241

A bigamous marriage is void from the beginning. However, there are two marriage-saving doctrines: (1) presumption that the most recent marriage is valid, and (2) removal of the impediment (e.g., by divorce) will render a subsequent marriage valid.

Answer 242

Virtually all states are no-fault divorce states, although some recognize fault-based grounds. Annulment is also recognized for fraud and other reasons.

Answer 243

The best interest of the child is examined when determining child custody and support. A biological parent generally has parenting rights if involved in the child's life.

Answer 244

Custody is determined by factors such as the wishes of the child's parents, the child's primary caretaker, mental and physical health of all individuals, interrelationship of the child and parents, stability, and any domestic violence.

Answer 245

Custody can be modified only if there is a substantial change in circumstances that was unforeseen at the time of the initial judgment.

Answer 246

All states employ numerical guidelines and establish a rebuttable presumption that the award resulting from applying the guidelines is correct. Factors include parents' income, number of children, their ages, and any special needs.

Answer 247

To obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances making the prior order unreasonable. Child support cannot be modified retroactively unless there was fraud or compelling circumstances.

Answer 248

A move sought in good faith that serves the child's best interest will generally be approved. The court balances the impact on visitation by the noncustodial parent against the benefits of the move.

Answer 249

Decisions by a fit parent must be given deference, including those regarding medical care, unless the decision jeopardizes the child's health or safety.

Answer 250

Biological fathers generally have rights, but the state may require them to exercise these rights within a specific timeframe.

Answer 251

An involved parent who demonstrates full commitment to parenthood can likely oppose an adoption petition and is entitled to notice of such proceedings.

Answer 252

A third party must prove that the parent is unfit or that granting custody to the parent would be highly detrimental to the child. Third-party statutes must give special weight to the parent's determination of the child's best interest.

Answer 253

In a majority of states, marital property is divided at divorce, while separate property remains with the owning spouse.

Answer 254

Marital property is acquired during the marriage, while separate property includes property acquired before marriage, an inheritance, or a gift to one party.

Answer 255

A court will enforce a premarital agreement if it is voluntarily made, substantively fair, and if full disclosure of assets and obligations was made. ## Footnote A court will not enforce a premarital agreement regarding child custody or support if it is not in the best interest of the child.

Answer 256

Alimony can be permanent, temporary, or granted in a lump sum.

Answer 257

Almost all states require consideration of the duration and may look at spousal misconduct or support for the other's education or training.

Answer 258

Alimony may be modified if there is a substantial change in circumstances. It usually terminates if a spouse dies or remarries, and cohabitation may also affect it.

Answer 259

Unless the court has jurisdiction over the defendant spouse, it may not issue a binding order affecting personal rights such as property division or support.

Answer 260

The court does not need jurisdiction over both spouses; it can dissolve the marriage if the plaintiff spouse is domiciled in the forum state or has a long-term connection to the state.

Answer 261

The court must have jurisdiction over the defendant spouse to issue a binding property division or support order.

Answer 262

The Uniform Interstate Family Support Act (UIFSA) governs child support and has been adopted by all states.

Answer 263

The state that originally issued a child support order has continuing exclusive jurisdiction to modify that order if it remains the residence of the obligee, child, or obligor.

Answer 264

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to child custody orders.

Answer 265

The 'home state' has exclusive jurisdiction to modify a custody decree.

Answer 266

A valid deed must identify the buyer and seller, describe the land, contain words denoting a present intent to convey, be signed by the grantor, and be delivered. Delivery is a question of intent to pass title presently.

Answer 267

Under equitable conversion, once the contract of sale is signed, the buyer's interest is real property and the seller's interest is personal property. The risk of loss remains on the buyer even if the seller retains possession.

Answer 268

1. Quitclaim deed: The grantor gives no covenants, and the grantee takes the land subject to defects. 2. Warranty deed: The grantor gives six covenants, including present covenants (right to convey, covenant of seisen, covenant against encumbrances) and future covenants.

Answer 269

On the closing date, the contract for sale merges into the deed, meaning the buyer can only sue on the deed.

Answer 270

A builder of new homes impliedly warrants that the home is habitable and fit for its intended purposes, covering defects due to the builder's negligence discovered within a reasonable time.

Answer 271

Under common law, a grantor can convey only those rights that the grantor had at the time of the conveyance, following the first-in-time first-in-right principle.

Answer 272

1. Notice statutes: Protect subsequent bona fide purchasers for value who take without notice of earlier transactions. 2. Race-notice statutes: Protect those who take without notice and are the first to record. 3. Pure race statutes: Protect the first to record.

Answer 273

1. Actual notice: The grantee knows about the conveyance. 2. Inquiry notice: Examination of the land would lead a reasonable person to inquire. 3. Record notice: The interest is recorded in the chain of title.

Answer 274

A mortgagor can transfer title, but the mortgage remains on the property. A new transferee taking 'subject to' the mortgage is not personally liable, while one who 'assumes' it is personally liable.

Answer 275

A novation occurs when the initial mortgagor, new transferee, and mortgagee agree that the mortgagor is no longer liable and the transferee assumes all of the mortgagor's duties.

Answer 276

A term for years lease specifies both a beginning date and an end date. ## Footnote (F2024)

Answer 277

A periodic tenancy has no fixed end date and repeats until one party gives valid notice to the other. ## Footnote (F2024, J2008)

Answer 278

It can be created by an express agreement, implication, or operation of law. ## Footnote (F2024, J2008)

Answer 279

Valid notice equal to the rent payment term is required. ## Footnote (F2024, J2008)

Answer 280

If the lease does not prohibit it, a tenant can assign or sublease her interest in the lease. ## Footnote (F2024, F2017, J2008)

Answer 281

A tenant can sue for constructive eviction if the landlord breaches a duty causing loss of substantial use and enjoyment of the premises. ## Footnote (S2020, F2013)

Answer 282

It is breached in a residential lease if the premises are uninhabitable, allowing the tenant several remedies. ## Footnote (S2020, F2013)

Answer 283

The tenant must pay rent, and if they abandon the property, the landlord can sue for damages or treat it as a surrender. ## Footnote (S2020, F2017, F2013)

Answer 284

Under common law, the landlord has no duty to mitigate damages, but many states require reasonable efforts to do so. ## Footnote (F2017, F2013)

Answer 285

It disallows discrimination in housing sales or rentals based on race, color, religion, sex, familial status, or national origin. ## Footnote (J2020)

Answer 286

Easements can be created expressly, impliedly, or by prescription. ## Footnote (F2021, F2012, J2011)

Answer 287

Easements may be terminated by express terms, written release, merger, prescription, estoppel, condemnation, or abandonment. ## Footnote (F2012, J2011)

Answer 288

The four unities are time, title, interest, and possession. ## Footnote (F2020, F2009)

Answer 289

A joint tenancy can be severed by giving it away during life, signing a contract for sale, judicial sale, or granting a mortgage in a title theory state. ## Footnote (F2020, F2009)

Answer 290

Requirements include possession that is continuous, hostile, actual, open and notorious, for the statutory period, and exclusive. ## Footnote (F2023, F2015, J2007)

Answer 291

In some circumstances, an adverse possessor may tack on the time of a prior possessor to reach the statutory period. ## Footnote (F2023, F2015)

Answer 292

The adverse possessor will prevail over a subsequent bona fide purchaser who complies with the recording act. ## Footnote (J2007)

Answer 293

Article 9 applies to all security interests in personal property or fixtures by contract, even if not explicitly called a 'security interest'. ## Footnote Article 9 also applies to lease agreements that are not true leases.

Answer 294

1. Consumer goods: goods for personal, family, or household use. 2. Inventory: goods held for sale or lease, or raw materials in a business. 3. Equipment: goods used in a business, not classified as inventory or consumer goods. 4. Farm products: crops, livestock, and supplies from farming operations.

Answer 295

Attachment requires: (1) value given by the secured party, (2) debtor must have rights in the collateral, and (3) a binding security agreement (AID: authentication, intent, description).

Answer 296

Yes, a security agreement can cover after-acquired property without needing to specifically reference it.

Answer 297

Perfection can occur by filing a financing statement, automatic perfection (e.g., PMSI in consumer goods), or by possession or control.

Answer 298

The first to file or perfect has priority. If no party perfects, the first to attach has priority. A perfected security interest beats an unperfected one.

Answer 299

A buyer in the ordinary course of business generally takes free of any security interest, while a buyer not in the ordinary course takes subject to a perfected interest.

Answer 300

A buyer not in the ordinary course takes free of a perfected security interest if he buys without knowledge of the interest.

Answer 301

Article 9 applies to all security interests in personal property or fixtures by contract, even if not explicitly called a 'security interest'. ## Footnote Article 9 also applies to lease agreements that are not true leases.

Answer 302

1. Consumer goods: goods for personal, family, or household use. 2. Inventory: goods held for sale or lease, or raw materials in a business. 3. Equipment: goods used in a business, not classified as inventory or consumer goods. 4. Farm products: crops, livestock, and supplies from farming operations.

Answer 303

Attachment requires: (1) value given by the secured party, (2) debtor must have rights in the collateral, and (3) a binding security agreement (AID: authentication, intent, description).

Answer 304

Yes, a security agreement can cover after-acquired property without needing to specifically reference it.

Answer 305

Perfection can occur by filing a financing statement, automatic perfection (e.g., PMSI in consumer goods), or by possession or control.

Answer 306

The first to file or perfect has priority. If no party perfects, the first to attach has priority. A perfected security interest beats an unperfected one.

Answer 307

A buyer in the ordinary course of business generally takes free of any security interest, while a buyer not in the ordinary course takes subject to a perfected interest.

Answer 308

A buyer not in the ordinary course takes free of a perfected security interest if he buys without knowledge of the interest.

Answer 309

The secured party must have knowledge of the security interest, provide value, and the goods must be for personal, family, or household purposes. A financing statement must be filed prior to the purchase. The goods must be consumer goods at both the time of sale and purchase.

Answer 310

Priority belongs to the secured party if they perfect their interest before the lien arises. If the interest is unsecured or perfected after the lien creditor serves the writ, the lien creditor has priority.

Answer 311

The lender can demand payment or use self-help to reclaim the goods as long as it does not breach the peace.

Answer 312

Factors include whether repossession took place at the debtor's premises, whether the debtor objected, and if any trickery was used. Any objection, even slight or verbal, may constitute a breach of the peace.

Answer 313

The security interest is discharged upon sale or disposal, but the debtor remains liable for any deficiency. Obligations to the disposing secured party and junior liens are paid off, while senior liens remain.

Answer 314

The sale must be commercially reasonable and the debtor must receive written notification of the sale.

Answer 315

A notification sent 10 days or more before the disposition is generally considered timely.

Answer 316

The notification should describe the debtor and secured party, the collateral, the method of disposition, and state that the debtor is liable for unpaid indebtedness and accounting charges.

Answer 317

The notification must include a description of any liability for a deficiency, a telephone number for the consumer to discover the amount owed, and a contact for additional information.

Answer 318

1. Damages, including statutory damages for consumer goods. 2. A court may order a sale. 3. Rebuttable presumption of collateral value.

Answer 319

There is a rebuttable presumption that the collateral is worth the amount of the debt, resulting in no deficiency for the debtor.

Answer 320

1. Absolute bar rule: noncompliance bars recovery of deficiency. 2. Rebuttable presumption rule: similar to nonconsumer transactions.

Answer 321

The debtor can redeem the collateral prior to its disposition by paying all amounts due to the creditor.

Answer 322

Negligence is the most highly tested topic. Be familiar with the general standard of care and when it changes.

Answer 323

Start with: 'In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty of care, the defendant breached that duty, the defendant's conduct was both the actual cause and the proximate cause of the plaintiff's injuries, and the plaintiff suffered damages.'

Answer 324

A child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances.

Answer 325

If a child is engaged in adult activity, they will be held to the same standard of care as a reasonably prudent adult.

Answer 326

Some states recognize that a child less than seven years of age cannot be found negligent.

Answer 327

Undiscovered trespassers are not owed any duty of care.

Answer 328

The possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that they know of.

Answer 329

The premises possessor is liable if: (1) they know children are likely to trespass, (2) the condition poses an unreasonable risk, (3) children do not realize the risk, (4) the burden of eliminating the danger is slight, and (5) they fail to exercise reasonable care.

Answer 330

A licensee is a social guest with permission to enter the land but does not confer an economic benefit.

Answer 331

The landowner must warn or make safe all concealed dangers that they know of.

Answer 332

Invitees are those who enter to confer an economic benefit or enter land open to the public.

Answer 333

The landowner must warn or make safe all dangers that they know or should know of and has a duty to inspect.

Answer 334

Discuss this doctrine when a statute sets the standard of care.

Answer 335

1. The defendant violated a statute without excuse. 2. The plaintiff was in the class the statute aimed to protect. 3. The plaintiff received the injury the statute aimed to prevent.

Answer 336

It allows the jury to infer negligence when the event ordinarily does not occur in the absence of negligence.

Answer 337

A defendant takes his victim as he finds him. A plaintiff with an 'eggshell skull' who suffers damages greatly in excess of those that a normal victim would suffer is entitled to recover fully for his injuries.

Answer 338

This applies when the defendant is negligent and the plaintiff has not sustained any actual physical trauma. There generally must be a physical manifestation of emotional distress, such as a heart attack.

Answer 339

The trier of fact apportions fault among the parties, and the amount of damages apportioned to the plaintiff due to their negligence is subtracted from the total damages awarded.

Answer 340

A common law doctrine stating if the jury finds that the plaintiff's negligence contributed to their injuries to any degree, the plaintiff cannot recover. Most states have abandoned this doctrine.

Answer 341

An act with intent to cause harmful or offensive contact, resulting in such contact directly or indirectly.

Answer 342

An act with intent to confine or restrain a person to a bounded area, where actual confinement occurs and the plaintiff knows of or is hurt by the confinement.

Answer 343

The defendant physically invades the land of another with intent to be where he is. Physical invasion does not include intangible forces like noise or light.

Answer 344

Consent is a defense to an intentional tort and can be express or implied.

Answer 345

Employers are vicariously liable for torts of their employees if committed within the scope of employment, known as respondeat superior.

Answer 346

An employer can be directly liable for their own negligence, such as failing to supervise employees or acting negligently in hiring or firing.

Answer 347

Indemnification is full reimbursement for damages paid to the plaintiff, where one defendant seeks 100% of the damages from another defendant.

Answer 348

The defendant must be a merchant, and under a manufacturing defect theory, the product must be defective from the time it left the manufacturer's hands.

Answer 349

A trust of personal property is valid if it has a trustee, a beneficiary, and trust property.

Answer 350

A trustee manages the trust property and holds it for the benefit of the beneficiaries. A trust will not fail for lack of a specifically appointed trustee, as the court will appoint one.

Answer 351

Beneficiaries must be definite and ascertainable. The same person cannot be the sole trustee and sole beneficiary, or the trust collapses.

Answer 352

Trust property must be identifiable.

Answer 353

A trust is generally revocable unless the instrument expressly states otherwise.

Answer 354

A settlor may terminate the trust if all beneficiaries are in existence and all agree to the termination.

Answer 355

Yes, even an irrevocable trust can be terminated if both income beneficiaries and remaindermen unanimously consent and if there is no material purpose of the trust yet to be performed.

Answer 356

A court may order 'equitable deviation' from the trust's terms when unanticipated changes in circumstances would otherwise defeat or substantially impair the accomplishment of the trust.

Answer 357

A will that makes a gift to a trust is valid if the trust is identified in the will and the terms are incorporated in a writing executed before or concurrently with the execution of the will.

Answer 358

The trustee has discretion to decide when to make a distribution to a beneficiary, who cannot demand any part of the income or principal.

Answer 359

A support trust requires the trustee to pay what is necessary for the beneficiary's support.

Answer 360

A spendthrift trust restrains both the voluntary and involuntary transfer of a beneficiary's interest.

Answer 361

Generally, a creditor may not reach a beneficiary's distribution prior to the beneficiary receiving it, with some exceptions for favored creditors.

Answer 362

A charitable trust may be created for a charitable purpose and must have a large number of not readily identifiable individuals.

Answer 363

A charitable trust may terminate if the charitable purpose becomes unlawful, impracticable, or impossible, but cy pres may save the trust.

Answer 364

An honorary trust does not have a charitable purpose or a definite beneficiary and is often for noncharitable purposes.

Answer 365

A trustee has a duty of loyalty to act in the best interest of the beneficiaries. ## Footnote (F2019, J2018, J2015, J2009, F2008)

Answer 366

The duty of care involves prudent administration of the trust. ## Footnote (F2019, J2018, J2015, F2010, F2008, F2004, J1998, J1996)

Answer 367

The UPIA requires a trustee to administer the trust as a prudent person would, using reasonable care, skill, and caution. ## Footnote (J2015, J2009, J1998, J1996)

Answer 368

A trustee's investment decisions should be evaluated in the context of the entire estate portfolio and overall investment strategy. ## Footnote

Answer 369

The duty to diversify is a hallmark of prudent investing; a trustee is liable for failure to diversify unless directed otherwise. ## Footnote

Answer 370

Remedies include suspending or removing a trustee, decreasing compensation, and compelling performance of trust duties. ## Footnote (J2015, J2009, J1998, J1996)

Answer 371

Beneficiaries may rescind the transaction and ask for the self-dealing purchase to be set aside or recover profits made by the trustee. ## Footnote

Answer 372

A general power of appointment allows the beneficiary to exercise the power in favor of an unlimited class of people. ## Footnote (F2022, O2020, F2017, J2007, J2005; Decedents' Estates-J2009, F2002, F1996)

Answer 373

In most states, a general residuary clause does not exercise a power of appointment unless coupled with a blanket exercise clause. ## Footnote

Answer 374

A special power of appointment allows the beneficiary to exercise the power only in favor of a limited class of people and needs to be specifically exercised. ## Footnote

Answer 375

The class closes when at least one member is entitled to distribution. ## Footnote (J2012, F2011, F2010)

Answer 376

Under the UPC, each living beneficiary takes their share, and a deceased beneficiary's share passes to their surviving descendants. ## Footnote (J2012, F2011, F2010, J2008, J2004, J2002)

Answer 377

If the gift to a deceased beneficiary has vested, it will go to whoever the instrument specifies or as per the deceased's will or intestacy. ## Footnote (J2018, J2004, J2002)

Answer 378

If one predeceases the testator, the deceased does not take, nor do their descendants, unless an antilapse statute saves the gift. ## Footnote

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