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«New York State Bar Examination Essay Questions QUESTION 1 Bob and Ann were married in 2000 in State X. In 2001, the couple moved to New York, and Bob ...»

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b. The issue is whether Tina's Niece will still be able to receive her demonstrative bequest from the 100,000 proceeds in Tina's brokerage account, or whether that bequest adeemed with Tina's death A specific bequest to a beneficiary under the testator's will is that of an identifiable specific item from the testator's estate (such as a rare painting or a Tiffany ring, for example). If, at the moment of the testator's death that bequest is lost, has been stolen, destroyed, or has been conveyed away, then that bequest will be found to have adeemed, and that beneficiary does not receive the bequest. The process of ademption only applies to specific bequests, however, and does not apply to general bequests (that is, bequests of a specified sum of money) or demonstrative bequests, which are bequests of money from an identified source). Instead, with the case of demonstrative bequests especially, if the beneficiary can successful trace the proceeds of these bequests from their identified source, then that beneficiary is entitled to receive that bequest.

In the present case, the 100,000 bequest from Tina to Niece is a demonstrative bequest. Here, it can be traced to a specified source, the brokerage account held in Tina's name. If those proceeds remain in the account at the time of the testator's death, and where the will was validly executed, then the beneficiary is entitled to take that bequest.

c. The issue is whether Brother can still take under Tina's will as a residuary beneficiary even though he challenged Jack's testimony as to whether Tina had testamentary capacity at the time she executed the will.

Under New York law, where the testator's will contains a no-contest clause, any beneficiary to that will who contests the will or any of its provisions will be deemed to forfeit her legacy under the will, and shall be judged to have immediately predeceased the testator. There are exceptions to this rule, such as where the challenging party was contesting the subject matter jurisdiction of the court or where the challenger was seeking a construction of the will or where the challenger was an infant or a surviving spouse.

Where a will does not contain such a clause, however, a beneficiary under the will is free to challenge circumstances surrounding its execution, such as whether the testator lacked testamentary capacity, and will not result in losing his bequest under the will.

In the present case, the facts do not indicate that Tina's will contained a no-contest clause. Furthermore, Brother was permitted to challenge the testimony of Jack's opinion as to whether Tina possessed the requisite testamentary capacity at the time she entered the will, and without risk of forfeiting his bequest under the will. Accordingly, Brother will not be deemed to have invalidly challenged the will and thus forfeited his legacy because the will neither contains a no-contest clause nor is brother prohibited by law, as a beneficiary, from contesting the testator's mental capacity at the time she executed the will. Accordingly, Brother's challenge will have no bearing on his status as beneficiary and he can continue to take his residuary share.

ANSWER TO QUESTION 2

1. The issue is whether Jack a witness is competent to testify as to the fact that Tina, a testator, is mentally competent when she executed a will.

Generally, lay witnesses are not competent to give opinion testimony. Lay witnesses are not allowed to give opinions that require expert knowledge, or scientific expertise, or give legal conclusions. Several exceptions exist to admit lay witness testimony on opinions that reasonably arise from the events they observed, such as the general mental state of persons they personally saw and witnessed. In testamentary matters, a testator is only required to know generally the nature of their property, the purpose of the instrument, and the natural bounty, or offspring, a lower standard than mental competency. Witnesses to wills can testify as to the testator's mental state to establish testamentary capacity, though they cannot give conclusions as to the testator's legal mental competency.

Here, Fran's attorney asked Jack about her mental competency in executing the will. In this case, it in context, the lawyer would have been asking about Tina's competency in relation to the requirements of testamentary capacity which would be within the exception for lay witness opinion testimony. The court was correct in permitting Jack to testify.

2. The issue is what effect Tina's death will have on the foreclosure action.

Generally, specific devises in wills are devised subject to the liens attached to them. A general provision to pay debts does not direct the executor to satisfy liens on specifically devised property. The distributee takes subject to the mortgage and either the distributee or the estate must continue to make payments on the debt. If payments are not made, the debt will go into default as at any other time. The mortgagee and creditor for a debt secured by a mortgage to specifically devised property can initiate a foreclosure action on the property, even while held by the executor, if the payments go into default. During foreclosure, the debtor has the right of redemption up until the sale of the property. The death of a debtor testator during a foreclosure action will have no effect on the rights of the creditor / mortgagee, or the estate.





Here, Tina's Blackacre was specifically devised, to Fran, but encumbered by a mortgage and note held by Lender. The lender had commenced a foreclosure action against Tina, and filed a motion for summary judgment, after which Tina died. As the foreclosure sale had not occurred yet, Tina and now her estate holds the right of redemption against the mortgagee. The Lawyer’s stipulation agreement, signed on behalf of Tina stating that Tina owed $250,000 will be binding on the estate if it was signed by Lawyer on Tina's behalf before her death. If it was signed and returned after her death, the stipulation agreement will not be valid, attorney's agency for Tina would have ended, and Tina's estate would have come into existence. Power to act for the estate would go to Fran, as executor to act on behalf of the estate in respect to the mortgage foreclosure action. However, stipulation agreement aside, the Lender can proceed in the foreclosure action against the estate if the right of redemption is not exercised and payments brought up to date before the sale of the property.

Tina's death will not stop or toll the foreclosure action, though if it preceded the stipulation agreement, the stipulation agreement is invalid.

3. The issue is whether the will was validly executed under testamentary formalities and what the parties below will take.

A will must be signed, subscribed, published, and witnessed by two witnesses, who must attest the will in thirty days. The publication required is that the testator must declare the will to be her will to the two witnesses.

Here the will was signed, subscribed, and witnessed by two witnesses. The will was also published, when Tina said that this was what she wanted. There may be an issue as to publication, but under the context, her statement would probably be enough to satisfy the requirement.

Jen will receive nothing under the will, or intestacy.

The issue is what happens to a gift devised to a friend when the friend predeceases the testator.

Generally, when a gift is devised to a distributee who dies before the testator, the gift lapses and is returned to the residuary of the estate. A statutory exception exists under the anti-lapse statute for gifts to descendants of the testator's parents: brothers and sisters and to the testator's issue. In these cases, the gift will then go to the devisee's issue.

Here, Tina devised a gift to Ana, who was only a friend. Ana predeceased Tina, so the gift lapsed and was not saved by the anti-lapse statute.

Niece will receive $100,000, first satisfied from the brokerage account, then other funds from the estate.

The issue is what happens when a demonstrative devise is to come from a fund that is insufficient. A demonstrative devise is a gift of a certain amount, which is to be first satisfied from the designated source, then made up from the rest of the estate.

Here, Tina gave Niece, $100,000, from the funds of her brokerage account. The designation of the brokerage account designates this as a devise to be satisfied from the brokerage account first. This account will be exhausted after $75,000. Then the devise will be satisfied from the remaining funds in the bank account.

Under intestacy, Niece would receive nothing.

The brother will take the residue of the estate, which is what is left over after distributing all specific, general and demonstrative devises.

Here, Tina's estate consists of Blackacre, $75,000 in a brokerage account, and $50,000 in a bank account.

Tina has successfully devised Blackacre to Fran, who will take subject to the mortgage, and $100,000 to Niece ($75,000 from brokerage account and $25,000 from bank account). Brother will be left with the $25,000 left over in the bank account, left because the gift to Ana lapsed.

Under intestacy, Brother would have taken the full estate as heir - her closest relative under NY's intestacy statute.

ANSWER TO QUESTION 3

1. The issue is whether Thea has a valid claim for negligent infliction of emotional distress seeking to recover emotional injuries only.

In New York, in order to recover for negligent infliction of emotional distress the

plaintiff needs to plead and prove the following:

a. The plaintiff has within the Paulsgraf zone of danger and the defendant owed a foreseeable duty of care to the plaintiff, because there has a foreseeable risk of harm or injury to the plaintiff by the defendant’s negligent contact.

b. The plaintiff must suffer injuries. Physical injuries must be present. As far as any psychological injuries, there needs to be some manifestation of physical injuries. Or in the event there were no injuries, then the plaintiff must have been a close family member witnessing the injury caused to loved one.

Thea has within the Paulsgraf zone of danger. She ran physically next to her niece when her niece was being mauled by the dog and it is clearly foreseeable that the dog could have turned and attacked Thea. She was in close proximity to her niece throughout the attack.

Thea has sustained psychological injury and trauma. However, there is no physical injury and without the physical injury, the only other way in which she can put forward a valid claim is if she is construed in the eyes of the law as a close family member witnessing the scene to a loved one whilst simultaneously being in the zone of danger. New York law does not recognize an aunt-niece relationship as being one that would give rise to a claim for negligent infliction of emotional distress. In light of the above, Thea is not in a position to file this action and the court should dismiss Thea’s claim.

2. The issue is whether Dan is liable under strict tort liability.

Strict tort liability arises in causes of actions involving injuries sustained by wild or domestic animals. A dog is considered a domestic animal. However, an owner will not be automatically responsible under strict tort liability for any injuries caused by a domestic animal if that animal has displayed no vicious propensities. This is usually referred to as the right to “one bite”. Vicious propensities are the animal’s inclinations and habitual tendency to act in a manner to endanger another person, or property. This is also where the dog is known to bite, gnarl or snap at people. Then an owner of such an animal will be liable under strict tort liability despite the dog never having bitten anyone before. The owner must be aware of the dog’s vicious properties and inclinations in order to be liable for its actions. Here, Dan purchased the dog bred as a guard dog, which alone would not be sufficient. However, Dan had himself on previous occasions witnessed the dog try and attack the niece in the past and was also aware that the dog was aggressive towards strangers and had on occasion with such force managed to run free.

It is likely that Dan was very definitely aware of his dog’s vicious properties and had a duty of care to others. Accordingly, it is likely the courts will bid Dan strictly liable for the injuries sustained by the niece.

3. The issue is whether Mom is entitled to the provisional remedy of a preliminary injunction.

The courts have discretion when granting provisional remedies. There are four provisional remedies: 1) preliminary injunction, 2) attachment order, 3) receivership or

4) lis pendens.

The purpose of a provisional remedy is to maintain the status quo pending the outcome of a hearing. In order to obtain a preliminary injunction, the plaintiff must establish a) the likelihood of success of their claim based on the merits, b) irreparable injury will occur or is presently occurring, and c) that plaintiff is likely to suffer more harm if the preliminary injunction is not granted than if the dependant will suffer if the injunction is granted. This is known as the relative harm test where the court endeavors to balance the equities.

Irreparable injury is such injury that cannot be quantified through money damages or is too complex and difficult to ascertain what the monetary damages would be if the harm or act continues.

A preliminary injunction seeks to stop somebody from doing something that continues to cause the irreparable injury. The plaintiff needs to establish the likelihood of their success on the merits of their claim and before the court can consider ordering a preliminary injunction the courts needs to evaluate the likelihood of success on the underlying claim. A plaintiff can be required to post a bond to compensate against any damages in the event the preliminary injunction is wrongfully granted.



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