themis state PQs

Question 1

Cy pres rules in VA

Answer 1

In Virginia, a remainder interest in a charitable trust that is triggered by the termination of the trust’s specific charitable purpose must give way to the application of the doctrine of cy pres if more than 21 years have passed since the creation of the trust.

Question 2

standard of proof w/regard to the issue of testamentary capacity is ________

Answer 2

a preponderance of evidence

or “strong evidence” according to google which betrayed me

Question 3

is expectancy interest enough to make someone a party w/standing in a probate conflict?

Answer 3

no

Question 4

is a no contest clause in a will enforceable?

Answer 4

generally yes

Question 5

who bears the burden of persuasion re: testamentary capacity?

Answer 5

the proponent of the will bears the burden of proving testamentary capacity, and can create a presumption of capacity by showing that the testator complied with the formal requirements of execution.

this presumption shifts to the contestant the burden of going forward the the evidence (burden of production), but the burden of PERSUASION ALWAYS REMAINS WITH THE PROPONENT.

Question 6

Does the VA Supreme Court usually hear divorce cases/appeals?

Answer 6

no. not usually. would have to be a weirdo legal issue or something. VA SC is always discretionary.

Question 7

how long does a circuit court have to specifically retain jurisdiction in a matter or modify a decree?

Answer 7

21 days

Question 8

what must a (perfected) financing statement to the SCC have?

Answer 8

the debtor’s name, the name of the secured party or a representative of the secured party, and the collateral covered by the financing statement.

NOT required:
-debtor’s trade name (dont confuse for legal name ig)
-debtor’s signature
-description of goods // specified classification

Question 9

what makes a premarital agreement enforceable?

Answer 9

fair and reasonable disclosure of the financial situations of the parties, or a voluntary and written waiver of such disclosures, where the parties voluntarily entered into the agreement.

must be in writing and not unconscionable

Question 10

must a party be represented by counsel to make an enforceable prenup?

Answer 10

no

Question 11

Describe VA’s Dead Man Statute, va code § 8.01-397

Answer 11

an interested witness is not automatically disqualified; if his testimony is corroborated, it is admissible .

Question 12

name the four factors a court must consider in determining whether a govt officer or employee is entitled to immunity:

Answer 12

1) the nature of the function, 2) the extent of the government’s interest and involvement in the function, 3) the degree of control the govt exercises over the employee, and 4) whether the act involved the discretion of the employee.

Question 13

does immunity apply to govt employees in the performance of duties that do not involve judgment or discretion?

Answer 13

no

Question 14

a deputy sheriff serving a summons is_________?

Answer 14

purely ministerial

Question 15

do ministerial functions provide immunity for govt employees

Answer 15

no

Question 16

does adultery have a waiting period for divorce?

Answer 16

no

Question 17

when is a city protected from tort function?

Answer 17

when performing a governmental function (not proprietary function)

Question 18

what sort of function is collecting garbage?

Answer 18

governmental function

Question 19

does a county have complete protection from tort actions?

Answer 19

yes

Question 19

does a municipality have complete protection from tort actions?

Answer 19

no

Question 20

is the routine maintenance of public areas such as streets and sidewalks a proprietary or governmental function?

Answer 20

proprietary function.

BUT

when a municipality or other local govt entity’s action constitutes BOTH governmental and proprietary functions, the action is considered governmental and sovereing immunity applies.

Question 21

for what purpose can a defendant schedule a special appearance?

Answer 21

improper service (motion to quash process), lack of PJ

Question 22

which exceptions are there to the general understanding that so long as process reaches the person its meant to reach within the time prescribed by law, it is sufficient (even tho process service may have been fucky)

Answer 22

the exceptions are actions for divorce or annulment

Question 23

what is the thing called that says one can fuck up service but if it gets to where its supposed to get, its fine

Answer 23

curative statute

Question 24

what is the burden of persuasion for conversion?

Answer 24

a preponderance of evidence

Question 25

what is the burden of persuasion for fraud?

Answer 25

clear and convincing evidence

Question 26

what is the burden of persuasion for IIED?

Answer 26

clear and convincing evidence

Question 27

what is the burden of persuasion for punitive damages?

Answer 27

clear and convincing evidence

Question 28

is invol intox a defense to a general intent crime?

Answer 28

yes

Question 29

must there be a public hearing before authorizing the issuance of any bonds?

Answer 29

yes **unless the bonds have been approved by the voters

Question 30

what majority is needed by vote of all members of the governing body for the passage of an ordinance authorizing borrowing thru the issuance of bonds?

Answer 30

simple majority

Question 31

a ______ must receive voter approval to elect to be treated as a city for the purposes of issuing bonds

Answer 31

county

Question 32

is there a blanket requirement that voter approval is required to issue bonds?

Answer 32

no

Question 33

must an attorney discharged turn over any papers or docs he prepared as work product in representation?

Answer 33

yes

Question 34

can an attorney who has been discharged hold on to work product if he hasnt been paid?

Answer 34

no

Question 35

regardless of normal SOL, for how long is a circuit court judgment enforceable from date of judgment?

Answer 35

20 years remember that a diff SOL applies once judgment is rendered in favor of a claim

Question 36

regardless of normal SOL, for how long is a GDC judgment enforceable from date of judgment?

Answer 36

10 years

Question 37

what is the SOL for a tort to property?

Answer 37

5 years

Question 38

for a consumer transaction security interest sitch, what percentage of the debt must be paid for the debtor to try and recoup some cash?

Answer 38

minimum of 60% ; no guarantee --> strict foreclosure

Question 39

can a creditor retain the collateral in full satisfaction of the debtor's obligation?

Answer 39

in general yes if he has not yet paid 60% min of in the case of pmsi

Question 40

if a consumer does not respond to the proposal within _______ days after it is sent, the creditor may retain the collateral in full satisfaction of the consumer's obligation.

Answer 40

20

Question 41

is there a dollar limit on the creditor's ability to use strict foreclosure?

Answer 41

no

Question 42

does VA permit a trust for the care of unborn animals?

Answer 42

no

Question 43

does placing an unreasonable amount of funds in a trust invalidate it?

Answer 43

no. excess will be distributed in accord with the terms of the trust, or if the trust is silent, in accord with the statute.

Question 44

does a cross claim in circuit court have to arise from the same subject matter as the matter pleaded in the OG complaint?

Answer 44

yes. must involve og subject matter

Question 45

is there a requirement that a cross claim be filed with or before an answer to OG lawsuit?

Answer 45

no

Question 46

SOL for slander?

Answer 46

1 year

Question 47

in general, when must a cross claim be filed in regards. to service on the defendant?

Answer 47

21 days of service unless court grants extra time

Question 48

a demurrer (a responsive pleading) must be filed within how many days of service of the complaint?

Answer 48

21

Question 49

when is patient-physician privilege unavailable under VA law?

Answer 49

criminal proceeding, when the mental condition of the patient is at issue, when the physical condition of the patient is at issue

Question 50

is patient-physician privilege available in both criminal and civil proceedings?

Answer 50

no just civil

Question 51

in a conflict between a secured creditor and an unsecured creditor, who has priority with respect to the collateral of the secured loan?

Answer 51

secured creditor has priority

Question 52

is professional goodwill considered marital property in VA?

Answer 52

yes. and it is subject to division upon divorce

Question 53

what is the SOL for filing notice with a city officer in advance of filing a negligence action?

Answer 53

a plaintiff must file a written notice within six months after the cause of action accrued.

Question 54

is the SOL for negligence action tolled if the plaintiff is an infant (legal term)?

Answer 54

yes. so if a 14 yr old gets hit by a car, the SOL doesnt expire at 16. it expires at 20

Question 55

a non constitutional erroneous evidentiary ruling is ____________ (2 words) when the parties have had a fair trial on the merits and substantial justice has been reached

Answer 55

harmless error this is an outcome dependent deal.

Question 56

poor debtor's exemption categories and cutoffs:

Answer 56

1. The family Bible. 1a. Wedding and engagement rings. 2. Family portraits and family heirlooms not to exceed $5,000 in value. 3. Funeral/burial shit not over $5,000. 4. clothes not over $1,000 . 5. All household furnishings not over $5,000 . 6. firearms not over 3k 7.animals/pets not for sale or profit 8. medically prescribed health aids 9. random tradecraft shit not over 10k 10. motor vehicles not to exceed 6k except sec interest has priority if its there 11. unpaid spousal support 12. kid related tax refunds

Question 57

does a perfected mechanic’s lien have priority over an existing lien (e.g. mortgage) on the building or structure to the extent that the existing lien is on the building or structure and not the land on which the building or structure rests?

Answer 57

yes

Question 58

T or F: Federal courts cannot exercise diversity jurisdiction over cases that primarily involve probate matters or domestic relations.  Instead, state courts have exclusive jurisdiction over these types of cases.

Answer 58

T

Question 59

Due process requires that a court have personal jurisdiction over all the parties in a dispute.  Federal courts have the same jurisdictional reach as the courts of the state in which they sit.  Additionally, Federal Rule of Civil Procedure 4(k) provides a special rule—the "100-mile bulge rule"—for federal courts to acquire personal jurisdiction over a party who is: added to the suit through impleader (i.e., third-party practice) or required joinder and served with process within 100 miles of the federal court where the suit is pending—even if the party is served in another state.

Question 60

The "100-mile bulge rule" establishes personal jurisdiction over a party (1) added to the suit through impleader or required joinder and (2) served with process within 100 miles of the federal court where the suit is pending.

Question 61

district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record.  The court may do so on its own initiative (i.e., sua sponte) or pursuant to a party's motion before an appeal from the judgment or order is docketed.  But after an appeal is docketed, the district court can correct the mistake only with the appellate court's leave (i.e., permission).