Glossary of My Flash Cards 2
Other Decks By This User
- What are the elements of accomplice liability?
What is an accomplice liable for?
NY rule regarding accomplice's testimony against other participant?
- 1. Aiding, abetting, and counseling the crime--active aiding required. Mere presence not enough, even if by presence D seems to be consenting to the crime, or even if D fails to notify police.
2. Liability: the crime itself and all other foreseeable crimes.
*NY* need more than accomplice's testimony to convict
- Defenses to accomplice liability.
- 1) Withdrawal, Affirmative Defense
2) Accessory After the Fact (helping someone escape is a separate lesser charge, and you're not liable for crime itself)
- MS: is withdrawal a defense to the inchoate crimes?
- In general, on the MS, withdrawal is NOT a defense to the inchoate crimes.
- What are the inchoate offenses?
- 1) Solicitation
- What are the elements of Solicitation?
- Element: asking someone to commit a crime (note, refusal or legal incapacity of the solicitee is NO DEFENSE)
- What are the elements of Conspiracy?
- 1) an agreement
2) intent to agree
3) attempt to achieve the unlawful purpose or object of the agreement
4) NY: overt act in the direction of the crime
- Who is liable for a conspiracy?
- 1) each conspirator is liable for all crimes of co-cons if foreseeable & in furtherance of conspiracy
2) NY - mere conspiring w/o participation doesn't create liab for substantive offense committed by co-con
3) NY - can be convicted even if all other parties to agreement can't due to legal impediments
- Defenses to conspiracy?
- 1) no "impossibility defense"
2) no withdrawal possible, b/c agreement + act = crime
3) no merger, i.e., can be convicted of conspiracy to rob and robbery
4) NY - affirmative defense: must voluntarily renounce and prevent crime
- Elements of attempt?
Special NY rule for attempt?
- Element: specific intent
*NY* must come "very near" or "dangerously near" completion of intended crime
- Defenses to attempt? (MS)
- 1) Factual impossibility is not a defense
2) LEGAL IMPOSSIBILITY is a defense (it's not a crime to do that which defendant attempted to do)
3) Abandonment is not a defense
- What are the elements of NDF self-defense?
What is the special rule in NY?
- NDF - a vic may use NDF in self-defense if he reasonably believes force is about to be used on him.
*NY* ...unless defender was orig aggressor or provoked use of force or unlawful combat agreement
- What are the elements of DF self-defense?
- Victim can use DF in SD any time victim believes DF is about to be used on him
1) never for defense of prop
2) NY requires retreat if safe to do so b4 resorting to DF...no duty to retreat in own home, if preventing rape, kidnapping, arson, burglary, or sodomy, or making lawful arrest
- DF in self-defense by original aggressor
- Withdraw and communicate that withdrawal to original victim.
- Use of DF to arrest
- officer must reasonably believe suspect armed or presents a danger to public
- What if fact-finder finds no right to self-defense?
- Voluntary manslaughter
- Affirmative defense of insanity. (NY)
- *NY* Due to mental disease/defect at time of crime committed, def lacked capacity to know: nature and consequence of conduct, or that such conduct is wrong
- Not a defense, but may negate intent
- Entrapment...elements? (NY)
- *NY* Affirmative Defense
1) Criminal design originated with authorities, and
2) Def was not predisposed to commit crime
(Govt may introduce def's past crimes during case in chief to assert def was predisposed to commit crime)
- Duress in NY?
- Affirmative defense applicable to all crimes.
- NY Homicide: 1st Degree Murder
- Intentional Murder with Special Circumstances:
1) Intended vic was a police officer, engaged in official duties, and perp knew
2) def was serving life sentence or escaped from life sentence at time of killing
3) intended vic was a witness/family member of witness to crime
4) murder for hire
5) vic was intentionally killed during killer's flight from robbery, 1st or 2nd burg, kidnapping, 1st or 2nd arson, rape, sodomy, sexual abuse, escape, or attempted murder in 2nd
6) during an intentional killing, def kills additional persons or recidivism
7) torture murder
8) serial murder (24 mo rule)
9) vic killed b/c was a judge
- Intentional 2nd Degree Murder in NY: elements?
- 1) intent to cause death
2) causes death
- There are 3 forms of 2nd Degree Murder in New York
- 1) Intentional Murder (other than 1st Degree)
2) Highly Reckless Murder
3) Felony Murder
- Felony murder in NY: elements?
- 1) vic was unintentionally killed by def/accomplice during or fleeing from:
burglary, robbery, arson, kidnapping, rape, sodomy, aggravated sexual abuse, escape
- Affirmative defenses to Intentional 2nd Degree Murder in NY
- 1) Extreme emotional distrubance (heat of passion)
2) Aiding a suicide
- Elements of First Degree Manslaughter in NY?
- 1) serious bodily harm resulting in death
2) heat of passion
- Elements of 2nd Degree Manslaughter (involuntary) in NY?
Is intoxication a defense?
- Reckless - intoxication no defense.
- NY - Elements of criminally negligent homicide (involuntary)
- 1) causing the death of another due to failure to perceive a substantial & unjustifiable risk of death.
2) defendant's conduct was culpable (failure to preceive risk is not enough)
3) death producing event must have been foreseeable
* generally applies to negligent driving of autos
- 1st Degree Burglary in NY: elements?
- 1) Knowlingly entering/ remaining in dwelling
2) with intent to commit crime, and
3) def injures a nonparticipant or threatens with dangerous weapon
- Specific Intent Crimes
First Degree Murder
- Conspiracy: elements
Attempt to pursue criminal objective (overt act)?
- MS: Is withdrawal a defense to the conspiracy?
- In general, withdrawal from the conspiracy is NOT a defense, because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed.
Withdrawal MAY be a defense to crimes committed in furtherance of the conspiracy, including the substantive target crime of the conspiracy.
To withdraw, conspirator must perform an affirmative act that notifies all members of the conspiracy of her withdrawal. Notice must be given in time for members to abandon their plans. If she has assisted as an accomplice, she must try to neutralize this assistance
- Attempt: elements
Substantial step in furtherance of the crime.
- Defendant is entitled to acquittal only if he had a mental disease or defect that caused him to either:
1) not know his act was wrong, or
2) not understand the nature and quality of his actions.
- Irresistable impulse
- at the time of the conduct, defendant lacked capacity for self-control and free choice
- Durham rule
- (NH & DC) defendant’s conduct was a product of his mental illness
- MPC Definition of Insanity
- at the time of his conduct, defendant lacked ability to conform his conduct to the requirements of the law
- NY Definition of Insanity (crim)
- A person is not criminally responsible for conduct if, at the time of the conduct, as a result of mental disease or defect, he lacked capacity to know or appreciate either the nature and consequence of such conduct or that such conduct was wrong
(NOTE: once raised, defendant may not refuse to submit to a psych exam by prosecution on 5thA grounds)
- NY Infancy (crim law)
- Infancy is a defense subject to statutory exceptions:
• Age 13-15, may be prosecuted for 2nd Deg Murder
• Age 14-15, responsible for serious offenses against persons or property
Except for the above, a defendant age 7-16 who commits a crime (misdemeanor or felony) is subject exclusively to family court juridsiction as a juvenile defendant
- MS Infancy (crim)
- under 7, no liability
under 14, rebuttable presumption of no liability
- NY is a retreat jurisdiction
- Victims are required to retreat to the wall if it’s safe to do so, before using DF. 3 exceptions:
(1) no retreat necessary out of one’s own home;
(2) if victim of rape or robbery, don’t have to retreat;
(3) police officers have no duty to retreat
- When, if ever, should you give SD to an original aggressor?
- Only if the original aggressor (1) withdraws, and once he’s properly withdraws (by retreat?) he (2) communicates to the other party that he’s withdrawn, i.e., “I’m all done here, I don’t intend to do anything else”
- When can deadly force be used to defend only property?
- Who bears the burden (pla or def) and what is the standard for proving affirmative defenses in NY (crim law)
- Must be raised and proven by a preponderance of evidence by the defendant.
- Two theories of assault
- assault as attempted battery
assault as a threat
- Larceny: elements
- (1) a taking
(2) wrongful taking by trespass or trick (a.k.a., stealing)
(3) carry away
(4) personal property of another
(5) no consent
(6) with intent to deprive owner permanently of his interest in property
- • Embezzler always has (1) lawful possession, then (2) illegal conversion (i.e., trustee)
- False pretenses (crim)
- • Defendant persuades owner to convey title by false pretenses
- Robbery: elements
- • Robbery = larceny + assault
(1) take property from person or presence
(2) against the person’s will
(3) by violence or fear of imminent harm, i.e., “Your money or your life!”
- MS Burglary: elements
dwelling of another
intent to commit felony
- MS Arson: elements
- malicious burning of
the dwelling of
(must be material wasting; charred, not scorched)
- What does Article III of the US Constitution define?
- Powers of the courts; federal judicial power
- Requirements for cases & controversies
- Standing, ripesness, mootness, political question doctrine
- Can the courts issue advisory opinions?
- Describe injury in terms of standing.
- Plaintiff has been or imminently will be injured. TIP: usually the best standing is a plaintif who has personally suffered an economic loss.
- When is third party standing permissible?
- 1) close relationship (ie, doctor-patient)
2) injured third party is unlikely to assert his rights (ie, crim defs have standing to raise claims about jury discrimination)
3) Associational Standing - organization can sue on behalf of members
- What are the requirements for associational standing?
- 1) injury in fact to members that gives them a right to individually sue
2) injury is related to organization's purpose
3) individual member participation in lawsuit unnecessary
- When to taxpayers have standing to challenge?
- In generally, the plaintiff may not be suing solely as "taxpayer" or "citizen." But, a taxpayer has standing to challenge government spending that violates the Establishment Clause (spending $$, not property)
- May a court grant pre-enforcement review of a statute or regulation?
- In general, no--ripeness doctrine. However, the court will consider (1) the hardship that will be suffered w/o pre-enforcement review, and (2) the fitness of the issues and the record for judicial review.l
- Exceptions to mootness doctrine?
- (1) wrong capable of repetition but evading review
(2) voluntary cessation
(3) class action suits
- What are considered political questions?
- 1) "republican form of government" clause
2) challenges to pres's conduct of foreign policy
3) challenges to impeachment & removal process
4) challenges to partisan gerrymandering
- Final Judgment Rule
- USSC will not do "interlocutory appeals." The USSC will only hear the case after final judgment.
- Sovereign immunity
- 11th A bars suits by private parties or foreign governments against state governments in federal courts.
Sovereign immunity bars suits against states in state courts or federal agencies, even on federal claims, unless defendant state consents.
- Congress' police powers.
- In general, there is no federal police power--only the states have police power, and Congress needs authority to act. Congress has police power for "MILD"
-Federal lands and territories
-District of Columbia
- Necessary & Proper Clause
- Congress can adopt all laws necessary and proper to carry out its authority.
- Taxing & Spending Power
- Congress may tax and spend for the "general welfare."
- Commerce Power
- Congress has authority to regulate commerce with foreign nations, for Indian tribes, and among the states.
- What can Congress regulate under the Commerce Clause?
- 1) channels of interstate commerce (places where commerce occurs)
2) instrumentalities of interstate commerce (trucks, planes, internet)
3) persons & things in interstate commerce
4) activities that have a substantial effect on interstate commerce
- Limits on Congress' ability to delegate legislative power.
- In general, there are no limits on Congress' power to delegate. Legislative power may be delegated ot executive or judicial branch as long as intelligible standards are set and whe power is not uniqu
- What must occur for Congress to act?
- Bicameralism (passage in House & Senate) and
Presentment (to President for signature or veto)
- Legislative veto
A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism or presentment.
- Line item veto
Attempt by President to veto part of a bill while signing the rest into law.
- Definition of "Treaty"
- Agreement between US and foreign country; negotiated by president; must be ratified by Senate.
- Treaty and state law.
- Treaty prevails
- Treaty and federal law
- Whichever was adopted more recently prevails.
- Treaty and US Con
- Constitution always trumps.
- Executive agreement.
- Agreement between US and foreign country; effective when signed by President and head of foreign nation.
- Exec agreement and state law.
- Exec agreement wins.
- Exec agreement and federal law or US Con
- Con or fed law wins.
- Who does President appoint?
- Ambassadors, federal judges, and officers of congress.
Congress may give power to appoint inferior officers to Pres, heads of depts, or lower fed cts.
- Who does President remove?
- Pres may fire any executive branch officer.
For Congress to limit removal power, it must be an officer where independence from the President is desirable.
- Can Congress prohibit President's removal?
- Only if there was no good cause.
- For what can Pres, VP, fed judges, and officers be impeached and removed?
- Treason, bribery, high crimes & misdemeanors,
- What else do you need besides impeachment for removal?
- Conviction by 2/3 of Senate.
- What is required for impeachment?
- Impeachment by House requires a majority vote.
- President's immunity to civil suits for money damages.
- Pres has absolute immunity to civil suits for money damages for actions which took place while in office.
- Executive Privilege
- must yield to other important governmental interests
- Presidential power to pardon
- Pres may pardon those accused or convicted of federal criminal acts.
- Supremacy Clause
- The Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
- States & taxes
- States may not tax or regulate federal governmental activity.
- Dormant Commerce Clause
- State & local laws are uncon if they place an undue burden on interstate commerce.
- Privileges & Immunities Clause of Art. IV
- No state may deny citizens of another state the privileges and immunities it affords its own citizens.
- DCC / PIC analysis...does the law discriminate against OOS'ers?
- NO: PIC doesn't apply...DCC violated if law's burdens exceed its benefits.
YES: PIC violated unless law is necesary to achieve an important government purpose....DCC violated unless law is necessary to achieve an important government purpose.
- Exceptions to DCC violations
- (1) Congress consents to discrimination.
(2) market participation exception
- Market Participation Exception to DCC violations?
- A state or local government may prefer its own citizens in receiving benefits from government programs or in deaing with government owned businesses.
- Limits on state taxes
- 1) can't be used to help in-state businesses
2) can only be used if there is a substantial nexus (significant connection) to the state
3) taxation of interstate business must be fairly apportioned
- Situations where private conduct must comply with the Constitution.
- 1) public function exception (running elections, running towns)
2) entanglement exception (when government authorizes, encourages, or facilitates unconstitutional activity)
- Application of Bill of Rights
- Applies directly only to Federal Government. Applies to state and local governments indirectly by incorporation of the Due Process Clause of the 14th Amendment.
- Exceptions to incorporation of Bill of Rights
- 2ndA right to bear arms
3rdA right not to have soldiers
5thA right to grand jury in criminal cases
7thA right to jury trial in civil cases
8thA right against excessive fines
- Levels of Scrutiny
- Rational Basis
- Rational Basis Test
- Law will be upheld if rationally related to a legitimate government purpose.
- Intermediate Scrutiny
- Law will be upheld if it is substantially related to an important government purpose.
Means must be narrowly tailored.
- Strict Scrutiny
- Law will be upheld if necessary to achieve a compelling government purpose.
Means must be least restrictive.
- Due Process
- Neither the fed nor state government may deprive anyone of life, liberty, or property, without due process of law.
- Before welfare benefits can be terminated
- need notice and hearing
- When SS disability benefits are terminated,
- need only be a post termination hearing.
- Before parental rights can be terminated
- need notice & hearing.
- What is the core of procedural due process?
- Has the government deprived a person of life, liberty (freedom), or property (entitlement)
- What is the core of substantive due process?
- Does the government have an adequate reason for depriving someone of life, liberty, or property?
- Two concerns of substantive due process
- 1) Economic liberties
2) Individual privacy
- What test is used for laws affecting economic rights?
- Rational basis test.
- What is the basis of the Takings Clause?
- Government can take private property for public use if it provides just compensation.
- Two types of takings
- Possessory (physical) or regulatory (leaves no reasonably economically viable use of the property)
- Government conditions on development as takings
- Must be justified by a benefit that is roughly proportionate to the burden imposed, otherwise it's a taking.
- What is the basis of the Contracts Clause?
- No state shall impair the obligations of contracts (...by regulations / legislation)
- What level of scrutiny is used for Contracts Clause interference?
- Intermediate scrutiny (but not traditional)
1) Does the legislation substantially impair the party's rights under an existing K?
2) If YES, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
- What level of scrutiny is used for state or local interference with government contracts?
- Strict scrutiny--state and local government can abrogate their own Ks only if strict scrutiny is met.
- Is a fundamental right, protected under "liberty" of the substantive due process clause.
- What level of scrutiny is used when the government interferes with a privacy right?
- Strict scrutiny.
- Examples of privacy
- 1) right to marry
2) right to procreate
3) right to custody of kids
4) right to keep family together
5) right to contraception
6) right to abortion*
7) right to privacy (homosexual activity)
8) right to refuse medical treatment
- Is the right to physician-assisted suicide considered a fundamental right of privacy?
- Special level of scrutiny for abortion.
- Viability test
1) prior to viability, states may not prohibit, but may regulate so long as they do not create undue burden
2) after viability, states may prohibit unless necessary to protect woman's life / health
- Other rights triggering strict scrutiny.
- Right to travel, right to vote, freedom of speech, freedom of association, free exercise of religion (so long as burdening law is not a neugral law of general applicabilty)
- Approach to equal protection questions
- 1) What is the classification?
2) What level of scrutiny should be applied?
3) Does this law meet the level of scrutiny?
- Equal protection, strict scrutiny:
- Race & National Origin
- Equal protection, intermediate scrutiny
Discrimination against non-marital children.
- When will gender discrimination be allowed?
- Only if it meets intermediate scrutiny test, and only if there's an exceedingly persuasive justification for the law.
- Alienage and equal protection
- In general, strict scrutiny.
Rational basis test is used for alienage classifications that concern self-government and the democratic process (voting, jury, police officer, teacher, probation officer).
Rational basis used for Congress' discrimination against aliens (plenary power to regulate immigration).
Intermediate scrutiny used for discrimination against undocumented alien children.
- All other types of discrimination use rational basis review, such as:
- Age discrim, disability discrim, wealth/poverty discrim, economic regulations, sexual orientation discrim
- Right to travel, what level of scrutiny?
- Laws that preent people from moving into a state must meet strict scrutiny.
Durational residence requirements must meet strict scrutiny.
Restrictions on foreign travel must meet rational basis test.
- Right to vote, what level of scrutiny?
- Laws that deny some citizens the right to vote must meet strict scrutiny.
One person, one vote.
Use of race in drawing election lines to benefit minorities must meet strict scrutiny.
Counting uncounted votes without standards violates equal protection.
- Two types of restrictions on speech.
- Content-based and content-neutral.
- What level of scrutiny must content-based restrictions meet?
- Generally, strict scrutiny.
- What types of restrictions are content-based?
- Viewpoint resrictions and subject matter restrictions.
- What level of scrutiny must content-neutral restrictions meet?
- Generally, intermediate scrutiny.
- What are prior restraints?
- Prior restraints prevent speech before it occurs, rather than punish it afterwards--rarely allowed.
- What level of scrutiny must prior restraints meet?
- Court orders supressing speech must meet strict scrutiny.
The govt can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.
- Vagueness and overbreath (con law)
- If a statute does not specify in sufficient detail the prohibited conduct, it is overbroad or vague (generalized "inciteful behavior" or "fighting words" laws are unconstitutionally vague and overbroad)
- When can government regulate symbolic speech?
- If government's interest in regulating is important and unrelated to suppression of themessage, and if impact on communication is no greater than necessary to achieve government's purpose.
- What types of symbolic speech are protected?
- Flag burning, burning a cross so long as it's not a threat
- What types of symbolic speech are unprotected?
- Draft card burning, nude dancing
- Election campaign spending limits...?
- Contribution limits are constitutional;
Expenditure limits are unconstitutional
- Is anonymous speech protected under 1st A?
- Yes...people have a 1st A right to speak anonymously without exposing their identity.
- Less protected and unprotected speech?
- Incitement of illegal activity, obscenity and sexually-oriented speech, commercial speech, defamation, government secrets which government intends to limit access to
- When can government punish incitement of illegal activity?
- If there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
- What is the test for obscene?
- 1) The material must appeal to the prurient (shameful or morbid) interest.
2) the material must be patently offensive under the law prohibiting obscenity
3) taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (on a national standard)
- What must defendant do to be guilty of possesion of obscene articles?
- Def must possess the material with intent to promote.
NY: a person who has six or more identical or similar obscene articles is presumed to possess with intent to promote.
"Private use" defense - def must conclusively show that he possessed the material for private use.
- May government punish private possession of obscene materials?
- No, except for child pornography.
- Is profane and indecent speech protected by the 1stA?
- Generally, YES.
Exceptions: over free broadcast media, and in school
- Are false/deceptive ads protected by 1stA?
- No...government can prohibit / punish false and deceptive ads, and those which promote criminal activity.
- Is defamation protected by the 1stA?
- In general, no.
- What are the categories of plaintiffs in defamation suits?
- Public offical
Private figure, matter of public importance
Private figure, no public interest
- What must a public offical plaintiff in a defamation suit prove?
- By clear and convincing evidence, the falsity of the statement and actual malice.
- What is "malice" in defamation?
- Defendant knew statement was false or acted with reckless disregard for the truth.
- What must a public figure plaintiff in a defamation suit prove?
- By clear and convincing evidence, the falsity of the statement and actual malice.
- What must a private figure, public importance plaintif prove in defamation suit?
- Plaintiff must prove falsity and negligence by defendant.
However, plaintiff may recover presumed or punitive damages only by showing of actual malice.
- What must a private figure, no public importance plaintif prove in defamation suit?
- Plaintiff can recover presumed or punitive damages without showing actual malice.
- What places are available for speech?
- Public forums and limited public forums. Non-public and private forums are not available for speech.
- To regulate speech in a public forum, what standard must regulations meet?
- Regulations must be subject matter and viewpoint neutral, and if not, strict scrutiny must be met.
- What may government regulate in public forums?
- Time, place, or manner must serve an important government interest, and must leave open adequate alternatives.
- What standard must government meet to regulate speech in non-public forums?
- Rational basis test--regulation must be reasoanble and viewpoint neutral.
- What are examples of non-public forums?
- Military bases, areas outside prisons/jails, advertising space on city buses, sidewalks on post office property, airports
- What level of scrutiny must laws that prohibit or punish group membership meet?
- Strict scrutiny--freedom of association.
- What must be met to punish membership in a group?
- 1) active affiliation,
2) knowing of groups illegal activities,
3) specific intent to further illegal activities.
- What level of scrutiny must laws require disclosure of group membership meet?
- Where such disclosure would chill association, strict scrutiny.
- Are laws that prohibit a group from discriminating constitutional?
- Yes, unless they target intimate exceptions (dinner parties) or expressive activity (Nazi party membership)
- Can the free exercise clause be used to challenge a neutral law of general applicability?
- Test for establishment clause violations:
- The government violates the establishment clause if it fails any prong:
1) secular purpose for the law
2) effect of law must neither advance nor inhibit religion
3) no excessive entanglement with religion
- What level of scrutiny must government meet when it discriminates against religious speech or among religions?
- Strict scrutiny.
- When does equal protection apply?
- Equal protection applies where a statute or governmental action treats similar people in a dissimilar manner (i.e., classifies people)
- Which privileges and immunities are covered by the 14thA?
- The privileges and immunities covered by the 14thA are those attributes peculiar to United States citizenship (e.g., the right to petition Congress for redress or the right to vote for federal officers)
- When will a federal court step in to enjoin a state court proceeding?
- Fed cts generally will not enjoin pending state criminal proceedings, even if they have jurd. For purposes of this rule, a case is deemed to be pending as soon as it is filed.
Exception: fed cts will hear an action to enjoin a pending state court prosecution if it is being conducted in bad faith; e.g., merely to harass the defendant.
- Which laws govern wills & estates in New York?
- 1) Estates Powers & Trust Law (EPTL)
2) Surrogate's Court Procedure Act (SCPA)
3) Uniform Simultaneous Death Act (USDA)
- Definition of "decedent"
- Dead person
- Definition of "intestate"
- Without a will
- Definition of "testator"
- Dead person who died with a will.
- Definition of "administration proceeding"
- A proceeding to appoint a personal representative, a.k.a., "administrator," to administer the estate of a person who dies intestate.
- Definition of "executor"
- Person who administers the estate of a person who dies testate (usually, the executor is named in the will).
- Definition of "probate proceeding"
- Proceeding to administer the property of a person who dies testate.
- Definition of "probate assets"
- Assets held in the decedent's name alone, that do not pass by operation of law, and that which the executor administers in accordance with the decedent's will.
- Definition of "operation of law"
- Property that passes automatically because of the way the property's title is held (not affected by existence of will or intestacy)
- 3 ways property can pass:
- 1) laws of intestacy
2) by will
3) by operation of law
- Definition of "issue"
- All persons who have descended from a common ancestor (synonymous with "descendants")
- Definition of "distributees"
- Those individuals who inherit property under intestate succession.
- Definition of "beneficiaries"
- Those individuals who receive a bequest (real property) under a will (bequest, a.k.a., legacy or devise)
- Definition of "residuary estate"
- The balance of the testator's estate after all claims, taxes, and particular bequests have been distributed...aka, "the rest and residue of my estate"
- Definition of "class gift"
- Gift to a group, ie, "all my children"
- When does intestacy law apply?
- 1) no will
2) partial intestacy (will doesn't make complete disposition of estate)
3) probate denied due to successful will challenge
- Order of priority for appointment as administrator.
- 1) surviving spouse
6) any other distributee
- Intestate decedent, survived by spouse, no children/issue
- Surviving spouse takes whole estate.
- Intestate decedent, survived by spouse and children/issue
- 1) if estate < $50k, spouse takes whole estate
2) if estate > $50k, spouse takes first $50k, then 1/2 remaining estate, and the other 1/2 goes to the children/issue by representation per capita at each generation
- Intestate decedent, not survived by spouse or issue
- 1) parents or surviving parent
2) if none, issue of parents
3) if none, grandparents
4) if none, issue of grandparents
- When is a spouse disqualified from taking an intestate share?
- D - Divorce
I - Invalid divorce, procured by surviving spouse
S - separation agreement against surviving spouse
M - marriage is void (incestuous/bigamous)
AL - abandonment or lack of support
If any of these happen, treat the surviving spouse as if s/he had predeceased the dead spouse, and drop their share to their issue
- Who do adopted children inherit from?
- Adopting family.
- Who don't adopted children inherit from?
- Biological family, except in cases where child is adopted by a spouse of a biological parent (ie, dad dies, mom remarries, and stepdad adopts child)...then, child inherits from both adopting and biological family.
- Special rule for children adopted by family members.
- 1) if child is related to decedent by both a natural and an adopted relationship, the child inherits under the natural relationship only, unless decedent was the adoptive parent, and then the child inherits under the adoptive relationship only.
- Class gifts and "adopted out child"
- An adopted child only takes as a beneficiary of a class gift made in the will of a natural family member if the child was adopted by another family member.
- When can a non-marital child inherit via the biological father?
- Only if paternity is established by:
1) legitimate marriage after birth
2) Order of Filiation in paternity suit
3) Father files affidavit of paternity with Putative Father Registry (witnessed, ack'd before notary)
4) Paternity estab'd in probate proceeding, by (i) clear & convincing evidence (ie, participation in school activities) and (ii) open & notorious acknowledgement of child as his own, or
5) blood genetic market test, plus clear & convincing evidence
- Definition of "advancement" (wills)
- A lifetime gift to an intestate distributee that is in partial or total satisfaction of a later distribution.
- NY rule for advancements (wills)
- In NY, there is NO ADVANCEMENT unless proved by 1) a contemporaneous writing made at the time of the gift, and
2) writing signed by donor/donee
- How to include advancements in an estate for intestate distribution.
- Add value of the advancement to value of present estate, figure out the shares from that total amount, then subtract the advancement from the individual taker's share.
- Definition of "satisfaction of legacies" presumption (CL rule)
- Presumption that a lifetime gift to a beneficiary named in the testator's will is in partial or total satisfaction of a later legacy (CL)
- NY rule for "satisfaction of legacies" presumption.
- NY rejects "satisfaction of legacies" presumption. In NY, a lifetime gift is not treated as "satisfaction of legacy" unless proved by
1) contemporaneous writing,
2) signed by the donor or donee
- Effect of valid disclaimer (wills)
- Person who disclaims is treated as if s/he predeceased the testator/decedent.
- Elements of a valid disclaimer (wills):
- 1) in writing, signed and ack'd before a notary
2) accompanied by separate affidavit that states no consideration was given (ie, you weren't paid to disclaim)
2a) court can authorize receipt of consideration for the disclaimer
3) disclaimer must be irrevocable
4) disclaimer must be filed in Surrogate's Court within 9 months of date of death.
- What happens during probate?
- 1) judicial determination that decedent died with a validly executed will
2) intestate distributees determined (notice of will)
3) Executor is appointed
- Test for validly executed will
- 1) signed/ack'd in PRESENCE of each witness
2) CAPACITY (over 18)
4) WITNESSES, two
5) signed at END of will
6) PUBLISHED (told it was a will)
7) THIRTY days from first witness signing
- Definition of "codicil"
- Later amendment or supplement to a will, executed with 7-point formalities.
- Who bears burden of proof as to due execution?
- Will proponent (person offering will for probate, usually the executor).
- If will is not self-proved...
- ...both attesting witnesses must testify as to the facts necessary to show due execution.
- What to do in cases of missing witnesses during probate?
- If one witness is dead/absent/incompetent/missing, the testimony of the other will suffice.
If both are unavailable, the will proponent must prove at least 2 signatures (the testator's and one other witness)
- Definition of "attestation clause" (wills)
- Attestation clause appears below the testator's signaure and above the witnesses' signature line, and recites all elements of due execution.
- What effect does an attestation clause have on a will?
- Attestation clause is prima facie evidence of facts presented (not legally required, but useful when witnesses has a "bad memory" or is hostile).
- Definition of "self-proving affidavit" (wills)
- Document, attached to back of will, in which witnesses sign a sworn statement in the presence of an attorney that recites all statements they would make if called to testify in court (ie, that 7 point test has been fulfilled)
- Effect of a "self proving affidavit"? (wills)
- Substitute for the live testimony of the witnesses. Will is admissible to probate on the strength of the sworn recitals in the affidavit, unless an interested party objects, in which case formal rules of proof of due execution apply (must call 2 attesting witnesses to testify)
- Who is an "interested witness"? (wills)
- Intestate distributee who is adversely affected by the admission of the will to probate.
- What happens if a will beneficiary is an attesting witness?
- Bequest to witness is VOID, unless
1) supernumeracy rule (at least 3 witnesses, 2 who were disinterested, so you don't need interested witness' signature to admit will for probate)
2) interested witness would be an intestate disributee if testator had died without will (interested witness takes lesser of either his bequest under the will or his intestate share)
- Foreign Wills Act: a will is admissible to probate in NY if it was validly executed under...
- 1) laws of state where executed, regardless of testator's domicile at that time
2) NY law
3) Law of state where testator was domiciled, either when will was executed or at death
- Definition of "holographic will"
- Will entirely in testator's own handwriting and signed, but not witnessed.
- Definition of "nuncapative will"
- Oral will
- NY rule for holographic and nuncapative wills
- VOID, except for members of armed forces during declared/undeclared war (expires 1 yr after discharge) or mariners at sea (expires after 3 yrs)
- Holographic wills executed in other states
- If valid in that other state, even if not valid in NY, it will be valid under the Foreign Wills Act.
- Attorney malpractice...can beneficiaries sue for negligence after testator is dead?
- NO, there is no privity of K between beneficiaries and attorney--the estate can only bring an action for the costs of drafting the will (damages are de minimus)
- A will can be validly revoked by:
- 1) Subsequent testamentary instrument, duly executed, or
2) physical act (burning, tearing, cutting, cancelling, obliteration, act of mutilation)
- Crossing out signature with big "X" (wills)
- Constitutes revocation by physical act...anything done to signature shows intent to revoke entire will.
- To the extent that a 2nd document (duly executed), which has no revocation language, is wholly inconsistent with a 1st document (duly executed)
- The 1st document is "revoked by implication".
- What is necessary for a valid revocation by proxy?
- Must be
1) at testator's request
2) in the testator's presence
3) witnessed by 2 witnesses of the act
...so, at least 4 people needed in the room
- Presumption when will was last seen in testator's possession/control but is not found after death
- Presumption that Testator revoked will by physical act.
- Presumption when will was last seen in testator's possession/control and is found mutilated after testator's death.
- Presumption that Testator revoked by physical act.
- In what ways can a testator change a will after it has been duly executed?
- In NY, only 2 ways:
1) duly execute a new will which revokes 1st will
2) duly execute a codicil, changing only parts of the 1st will
- Rule for revival of revoked wills
- A will that has been revoked by a later will/codicil is NOT REVIVED simply by destroying the later will.
- Ways to revive a revoked will:
- 1) Re-execution of revoked will, or
2) Republication by codicil (testator validly executes a codicil to will #1, referencing that will)
- Doctrine of Dependent Relative Revocation (wills)
- Common law doctrine which permits revocation to be disregarded when premised/conditioned/dependent on a mistake of law as to the validity of another disposition (ie, testator's mistaken belief that by revoking will #2, he had revived will #1)
- Effect of Doctrine of Dependent Relative Revocation
- Disregard revocation of will #2, and permit its probate.
- When to apply Doctrine of Dependent Relative Revocation?
- When the disposition that results from disregarding the revocation comes closer (than intestate distribution) to doing what the testator tried, but failed, to do.
- Which courts in NY use Doctrine of Dependent Relative Revocation?
- Only one Apptellate Division court, so make sure you ARGUE IT BOTH WAYS ON THE BAR EXAM
- Proof of Lost Wills Statute
- Need all 3:
1) due execution (7 point test), AND
2) must be established that will was NOT revoked, AND
3) all provisions of the will must be clearly and distinctly proved by each of at least 2 credible witnesses, or by a copy or draft of the will proved to be true and complete
- Explaination of NY's anti-lapse statute.
- For a pre-deceased beneficiary, the gift to them lapses or fails, unless the pre-deceased beneficiary was testator's sibling or issue, and the pre-deceased beneficiary leaves issue who survive the testator.
- Explanation of the "surviving residuary beneficiaries" rule
- If testator's residuary estate is devised to 2 or more people, and the gift to one of them lapses or fails for some reason, and the anti-lapse statute does NOT apply, the othe rresiduary beneficiaries take the entire residuary estate, in proprotion to their interest in the residue.
- Rule: Class gifts: predeceased members of class, and will bequests.
- Class members who survive the tesator take lapsed gifts of predeceasing members of the class (if determined that testator was "group-minded")
- When individuals are named individually, and not as a class, ie, "to A, B, and C, the children of my brother", and some members predecease?
- Any lapsed gifts go towards the residuary estate.
- Rule of Convenience (wills)
- Class is closed (later-born members excluded) at the time a distribution to the class must be made (subject to gestation principle)
- Gestation Principal
- 280 days from conception to birth
- Class closings and life estates.
- Class closes at the death of the life tenant or income beneficiary.
- Simultaneous deaths & USDA
- The property of each person is disposed of as if he had survived the other.
- What happens if testator gets married after writing his will, and no changes are made?
- No problem, because spouse can always take elective share.
- What happens if testator gets divorced after writing his will, and no changes are made?
- Read will as if spouse predeceased testator, so long as divorce is final.
- Definition of "incorporation by reference" (wills) (CL)
- At common law, the terms of an extrinsic document, not present at the time the will is signed (and thus not part of the will) can be incorporated by reference if the document was in existance when will was drafted, the will shows an intent to incorporate the document, and the extrinsic document is clearly identified in the will.
- NY rule regarding "incorporation by reference" (wills)
- NY does NOT recognize incorporation by reference, so everything MUST BE FULLY EXECUTED
- Examples of nonprobate assets:
- 1) Property passing by right of survivorship (joint bank account, joint stock account, joint tenancy)
2) Property passing by K (life ins policy, employee benefits to someone other than decedent or decedent's estate)
3) Property held in trust
4) Property over which decedent held a power of appointment.
- Classification of gifts that can be made by a will:
- 1) Specific (gift of tangible prop)
2) Demonstrative legacy (specific amt from specific source)
3) General legacy (specific amt from nonspecific source)
4) Residuary disposition
5) Intestate property
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