Texas Bar Essays Subjects Massive Review

• Capacity
• Intent
• Formalites

18 years old (unless married or member of the armed force) and of sound mind

• Understand the nature and extent of your property
• Understand the object of you bounty
• Understand the nature of the document (it's a testamentary instrument that distributes property at death)

Testator presumed to be of sound mind; if rebutted, proponent must show testator had capacity by preponderance

• Influence existed;
• Subverted Testator's mind;
• No will w/o the influence

• Opportunity;
• Susceptibility;
• Successfulness of person exercising influence

Invalidates provision subject to influence;

Fraud as to nature of writing itself; will invalid

Extrinsic facts which affect distribution (if testator knew the truth, would he do the same thing?)

E.g., Child claims to be Testator's son, but he's not

Mistake as to nature of the document; will invalid

Testator is mistaken as to facts; no relief

E.g., T thinks child is his of T's own accord, no on told him; kid isn't

Will won't take effect unless condition takes place ("If I during my trip...")

Allowed if at Testator's direction and in his presence

• Must see doc (don't need to know it's a will)
• Can sign before T does, so long as it's a part of one continuous act

You can get gift, but not more than your intestate share (unless corroborated by disinterested, credible witness)

Physical attachment to a will, not usu. valid

Allowed; instrument references another doc in existence and sufficiently ID'd in will

Will valid for some reason independent form role to distribute property (e.g., employee list)

Amendment to will; must meet req's of regular will

Ex-spouse treated as though he predeceased testator

Testator took action that showed intent to revoke will, expressly or impliedly

Not possible in Texas; all or nothing

Revocation of one executed copy by physical act = revocation of all copies

• Presumed it was destroyed; rebutted by extrinsic evidence
• Show:
• 1) evidence that a will existed in the first place;
• 2) what happened to the will; and
• 3) the intended disposition of the will.

Bring will back to life; 2 new witnesses needed w/ appropriate formalities

Reincorporation by reference of will (T makes will 1, revokes it, makes will 2, makes codicil saying "codicil in addition to will 1.")

Testator has valid will then revokes to make alternative (invalid) disposition; the first will remains in effect

• Specific;
• Demonstrative ($100,000 from sale of house);
• General ($100,000 from will);
• Residuary;
• Intestacy

DEBTs are collected in reverse, collecting personal before real in each category

• Testator gives inter vivos gift:
• (1) wills says it was satisfaction at time;
• (2) testator notes in contemporaneous writing; or
• (3) or beneficiary recognize its satisfaction in a later writing

• Advance on intestate share; inter vivos gift meant in lieu of intestate share
• Proven by testator (contemporaneous)  or beneficiary's (later/contemporaneous) writing

• Before death: Goes to estate
• After death: specific: goes to beneficiary; general/demonstrative: general estate

Estate pays of encumbrance on property

Sept. 1, 2005

No exoneration unless will says so (wills after Sept. 1, 2005)

Beneficiary predeceases testator; gift lapses

If beneficiary does not outlive testator by 120 hours, he is said to have predeceased testator

Beneficiary predeceases testator and is descendant of testator or his parent, no lapse; passes to beneficiary's descendants

• Written;
• Signed;
• Verified;
• Filed w/in 9 mos of death;
• Filed w/ ct. and personal rep;
• Can be partial;
• Is irrevocable

Child not mentioned in will who was born/adopted after will execution

• Entitled to intestate share UNLESS:
• Will disinherits child;
• Transfer to child outside will;
• Provision made for ≥1 child living at time of will, PC gets equal share to living children

• Don't require ascertainable beneficiaries; 
• AG enforces on behalf of public;
• Must be created for charitable purpose;
• Cy pres allowed to reform purpose of trust

• Ascertainable beneficiary;
• Mechanics;
• Proper purpose;
• ID'able corpus;
• Intent

AMP II

18 and of sound mind

Trust destroyed

Manifestation of intent w/ putting res in trust; no specific language needed (but don't be wish-washy)

Not allowed UNLESS there are multiple beneficiaries

≥1 person of class must be definitely ascertainable

E.g., "To my friends" ≠ valid trust because we don't know who "friends" are

Settlor declares he holds property in trust for certain beneficiaries; splits legal and equitable title

Trust created through will

Property in estate "pours over" into a trust created by Testator inter vivos

• Expressly granted
• Sell
• Invest
• Apportion
• Invade principal

Nope, unless for a short time

• Majority; unanimity not required;
• Co-trustee has duty to prevent breach by other co-trustees––trustee should not participate in transaxn and express dissent in writing

• MAD CaRL
• Make trust property productive;
• Account (to ct every 12 most, to B when requested [within reason]);
• Defend;
• Collect/preserve/segregate trust corpus;
• Reasonably invest (reasonably prudent investor);
• Loyalty and care

• Injunction;
• Rescission;
• Damages from breach;
• Removal

• Trust can't be sued or sue; Trustee must do both
• On K: Sue trustee; trustee can seek indemnity or reimbursement if K was proper and breach wasn't result of trustee's duty
• On tort: Personal liability from tort committed by Trustee in the course of administration; collectable from trust corpus

• Trustee won't;
• Trustee knowingly participated in causing loss to trust;
• Trustee has abandoned trust

• Cash Dividends: Treated as income (to B);
• Stock Dividends: Treated as principal (to remainderman);
• Wasting assets [property depleted by its use, e.g., lumber]: Remainderman gets hosed, so treat all fairly, separate between corpus and income

• Ordinary: Charged to income
• Extraordinary: Charge to principal

General rule: Freely transferable, creditor can attach trust interests

Trustee has discretion to determine what beneficiary gets; beneficiary cannot force testator to exercise discretion

Beneficiary can't transfer his interest, but creditor can't reach trust (can only get beneficiary's distributions after they're made)

(Government can get to trust)

Revocable trust: Can modify (but too much = trust fails)

Can't do it UNLESS he can show special circumstances for modificatino that does not harm purpose of trust or other beneficiaries; court can approve

If revocable, terminable (if not, not terminable);

If all beneficiaries consent and early termination doesn't violate a material purpose of trust

If settlor had general charitable purpose and original purpose is unattainable/fulfilled, ct. can change purpose to keep trust alive

Trust fails, returns res to settlor or his estate

Avoids unjust enrichment

Pay money and title goes elsewhere (if to a child, presumed gift; if not, presumed PMRT)

E.g., A buys car and pays purchase price and transfers title to C. If A can prove this wasn't a gift, C would hold title in PMRT, A can get car back to reunify title

• Adult;
• Competent;
• Good character;
• Not intebted/in lawsuit with ward

• Of the person;
• Of the estate

• C&C ev.: Ward is incapacitated and guardian is in his best interest
• Preponderance: That person selected is qualified to be guardian

• Physical possession of ward;
• Determine domicile;
• Care and protection for ward

Possess and manage all of ward's property (can't purchase or exchange prop., settle estate claim, or abandon worthless prop. w/o ct. order)

• Fiduciary
• Of the person: Duty of care (provide food, etc.)
• Of the estate: Duty to manage the estate as a reasonably prudent person

Reimbursed for necessary and reasonable expenses incurred in caring for ward or his estate

Allowed; at ct's discretion; paid from estate or special gov't funds

• Reasonable:
• Person: 5% of ward's gross income
• Estate: 5% of ward's estate paid out

Any person acting in best interest of ward can commence modification proceeding; ward needs atty ad litem

Any person acting in best interst of ward can commence modification proceeding; ward needs atty ad litem

If ct finds by preponderance that guardianship isn't needed, ct. will terminate

Capacity restored; suit to terminate is commenced; and ct orders

• Minor ward is 18;
• Estate of ward exhausted

All income, from whatever sources derived, including compensation, interest, rent, etc.

Nope.

Nope

Nope

Nope.

Nope.

Nope; if personal and only extends to $250K [single] or $500K [married]

During 5 year period, owner must own/use prop. for >2 years in order to exclude gain on sale of residence

Yep.

Yep.

Yep.

Nope; unless scholarship depends upon student conferring benefit on school = income to FMV of svc.

Yep; unless close familial relationship and context makes it look like a gift

"Ordinary and necessary expenses" paid or incurred while carrying on biz: Deductible

Nope, unless it's "continuously and regularly" used for biz purpose

Yep, but only continuing education (e.g., CLE), not education needed to enter a trade (e.g., law school)

>$5M

Gift w/ condition subsequent (marriage)

TEXAS: Fault-based approach, breaker gets hosed

• Valid in Texas;
• Capacity to K;
• Voluntarily entered;
• Signed writing;
• Effective upon marriage

• License (72 hour wait, unless good cause/armed forces);
• Before 30 days from getting license;
• Conducted by person authorized

• 16-18: Ct. order or parental consent
• <16: Ct. order only

• Agreed to be married;
• Lived together in Tex. as H/W;
• Represented they were married;
• No defined time: Longer = more likely; BUT, ceasing to live together before 2 years = presumption of non-marriage

• Written and signed "declaration of informal marriage" w/ vital statistics office;
• Agreed to be married;
• Lived as H/W;
• Represented they were married; and
• Haven't been married to anyone else
• Minors can't do this

Impediment to marriage:

• One/both parties are <16 w/o ct. order: marriage void
• Both parties ≥16L marriage voidable

Voids incestual marriages

Void marriage

Void; not allowed in TEx.

• Marriage voidable if:
• Either party permanently at time of marriage;
• Pet'r didn't know of it;
• Pet'r hasn't voluntarily cohabited w/ impotent spouse since learning of it

• Marriage voidable if:
• Pet'r was under the influence and lacked capacity;
• Hasn't voluntarily cohabited since intoxicating effects ended

• Marriage voidable if:
• Other party used fraud, etc. to induce;
• Pet'r hasn't voluntarily cohabited w/ party since learning of fraud/escaping duress/force

• Marriage voidable if:
• At marriage, one party didn't have mental capacity/understanding of nature to consent; AND
• Pet'r hasn't voluntarily cohabited w/ other party after capacity returned or pet'r should have discovered mental defect

Divorcees can't marry 3d party w/in 30 days after divorce decree; voidable if you do

Marriage never occurred, BUT cts can do just/right division of CP and award maintenance

Protects person who believes he's married but there's an impediment to marriage; gives rights he'd have had if validly married

If parties continue to cohabit, automatically validly married

• Requirements:
• Sworn application by party seeking protection; and
• Finding by court that there is clear and present danger of family violence
•  
• Protects against domestic violence; extraordinary relief; no notice req'd to respondent;
• Enforced by contempt of court

20 days (unless extended by ct. sua sponte or upon petition)

• Family violence has occurred; and
• Will occur in the future;
• Ct must issue if it finds these

• Stay away provisions (including places);
• No comms;
• No harassing, annoying, embarrassing conduct;
• No firearm possession;
• no more violence; and
• No harming/threatening pets

up to 2 years (or longer if respondent caused serious bodily harm to pet'r)

Arrest w/o warrant (copy must arrest w/o warrant if respondent violates provision of Order)

Each spouse must support the other

Spouses can sue each other; not vicariously liable for each other's torts, but comm. prop. can be obtained by tort-creditor

Gone. No means no.

• Required:
• Domicile of ≥1 spouse in texas for >6 mos prior to divorce OR in county for 90 day period; AND
• Valid marriage

Not req'd unless seeking an in personam judgment

• If pet'r is resident of Tex. at time suit is file, ct. can have personal jx. over nonresident if:
• Tex. was last marital residence of the parties; and
• Pet. was file w/in 2 years since couple ceased having marital residence in Tex.

No sooner than 60 days after pet. was filed

Orders during the pendancy of divorce; prevents spoliation, concealing property, spending more money than reasonably necessary

Sua sponte or by agreement

Ct. may order parties to counseling; if ct. believes reconciliation is possible, it can continue the proceedings and direct parties to continue counseling for up to 60 days

Wretten agreement to engage experts, advisors, and professionals to serve in neutral capacity; avoids battle of experts (but if it falls apart, each side has to get new attys and go to court)

Yep.

• Fault:
• Abandonment (left for ≥1 year);
• adultery;
• cruelty (needs course of conduct rendering marriage intolerable);
• felony conviction w/ prison ≥1 year

• Insupportability ("Discord or conflict destroying legitimate ends of marriage w/ no expectation of reconciliation");
• Living apart for ≥3 years;
• Confinement in mental hosp. for ≥3 years

Must be just and right having due regard to both parties and any children thereof (doesn't mean 50/50)

• Main factors:
• Earning capacity;
• Bax consequences;
• Fault;
• Benefits innocent spouse would enjoy if marriage had continued

Community property

Advisory only! Ct. has ultimate say.

Parties can agree to property division and submit it to court; court can accept or schedule a hearing, it cannot just modify the agreement

• Allowed by ct decree or agreement;
• Req's:
• Payor has committed family violence ≤2 years divorce pet.;
• Marriage ≥10 years;
• Spouse can't meed reasonable needs;
• Unable to earn sufficient income to provide for min. reasonable needs because of disability; OR
• Custodian of child who needs substantial personal supervision due to disability and spouse can't earn sufficient income to provide for min. reasonable needs because of it

• Ability to provide for min. reasonable needs;
• Education/skills/time needed to get them;
• Duration of marriage;
• Contribution to spouse as homemaker;
• Marital misconduct

Less of $5000 or 20% monthly gross income

• ≤20 years: 5 years;
• 20≤30 years: 7 years;
• >30 years: 10 years max

Upon motion and proper showing of material and substantial change of party to marriage or child

Contempt and garnishment of wages

• Right to support if legit children have support;
• Right to inheritance from mom and bio-dad

• Woman gave birth to child;
• Adopted child;
• Had maternity adjudicated

• Unrebutted presumption;
• Acknowledgement;
• Adjudication;
• Adoption;
• Consented to IVF and baby results

• Married during conception/birth;
• Married after birth and man voluntarily listed as factor, record filed w/ state includes this assertion, or man promised to support child as his own;
• During first two years of child's life he is in same house and holds child out as his own

• No presumed father: Indefinite;
• Presumed father: 4th birthday unless lack of access (didn't live together nor had sex during conception time) OR mistaken paternity (presumed dad mistakenly believed he was bio-dad based upon misrep)
• Lack of Access/Mistaken Paternity: Indefinite

Child, mother, man wishing for adjudication of paternity, gov't agency, auth. adoption agency, person related to mother w/in 2° of consanguinity, or intended parent

Custody/control of child (religious, moral, and educational decisions); discipline; support and provided w/ needed clothes, food, shelter, medical and dental care, and education

• Suit affecting parent-child relationship;
• Managing or possessory conservator appointed, access to child established, or termination requested

Parent; gov't; person in actual care, control, and possession ≥6 mos (or ≥12mos for fostered kids); or relative w/in 3° consanguinity

Can request managing conservatorship to protect kids' health or emotional development

CANNOT file the suit, must join existing suit

• Involuntary
• Voluntary
• Termination ≠ no support obligations

• Signed >48 hrs after birth;
• Two credible witnesses;
• Verified

• Adults can adopt (married or unmarried);
• Look to child's best interests

Yep.

Anyone w/ cause to believe child's physical/mental health has been affected by abuse/neglect must report immediately

NOT PROTECTED BY PRIVILEGE; must report w/in 48 hours

Must report to CPS and refer minor to them for svcs/intervention.

Make maj. decision about child

Sharing rights to child

Chooses primary residence of child (can be limited by ct. to specific geographic area)

Right to possession of child, other rights are limited

Parents; ct. must appoints parents unless it's not in child's best interest due to impairment of child's physical health or emotional development

Rebuttable presumption that parents are in the best interest of the child

Rebuttably presumed to be in best interst of children >3 years (<3 years, ct. will grant possession as needed under circumstances)

Parents can agree to plan; ct. will approve or set hearing, can't just modify agreement

• Allowed w/ respect to conservator appointment;
• Which managing conservator will be primary; and
• Whether there will be geographic limits

JNOV req'd: Can't just reject jury findings, must order new trial if verdict is against the great weight of the evidence

CAN'T have jury for child support or specific conditions of child possession/access

Ct. can order reasonable possession/access to GP if GP overcomes presumption that parent acts in best interest of child by preponderance that child's mental health/physical well-being will be harmed w/o possession

Bio-GPs have standing to request access

• Habeas petition:
• File verified application to take custody of child;
• Heard on next judicial day after writ is executed; and
• Ct. finds applicant for writ is entitled to possession;
• Court shall return child to applicant

20% (+5% per each child up to 40%) of net resources UP TO $7500 of obligor's income

(e.g., if obligor makes $21,000/mo, his max support for one child will be $1,500 [20% of 7,500])

• Must carry child on his ins. or reimburse obligee;
• Cost of complying is not calculated in net resources

Nothing––can't deny access for failure to pay

Ct. must order but obligee needn't enforce

• Later of 18 years or high school graduation;
• Emancipation;
• Death;
• Indefinitely if child is disabled

Allowed, but usu. not for longer than 4 years previous

Needs personal jx.: Garnishment, any means ct. can use for judgment on debt

Indiv. had sex in Texas and child was conceived here, but he's never returned; has jx.

Once a state has jx, it continues until both obligor and obligee leave Texas

Crosses state lines; direct enforcement allowed (no ct. order needed to garnish)

• Child lived w/ parent in state for ≥6 most (if ≤6 mos, since birth); then
• No other state is child's home and ≥1 parent has "significant connection" w/ Texas; then
• No other home state, no substantial connections, but Tex. is more "appropriate forum jx."; then
• No other state would have jx. under above stds (vacuum jx)

Any court can decline jx., will drop to next possible jx. on list

Once state has jx, it keeps it until neither child nor obligor nor obligee live in state (unless they consent to state's jx)

• Child in state and has been abandoned; or
• Child/sibling/parent is subjected to/threatened with mistreatment/abuse

Other state's custody order can be enforced in Tex. if registered; Tex. ct. can grant any relief available under Tex. law to enforce registered child custody determination

Liberally-construed law to protect consumers against deceptive acts by any seller

Person who seeks or acquires goods or services by purchase or lease (unless a biz w/ gross assets of ≥$25M)

No DTPA for jobs whose essence is providing advice, jgmt, opinion, or prof'l skill; applies to attys, physicians, and accountants

• Express misrep of material fact not qualifying as advice, etc.;
• Failure to disclose information in order to induce consumer to enter transaxn;
• Unconscionable actions;
• Breach of express warranty

Nope (can get mental anguish, though).

• DTPA doesn't apply if:
• K relates to transaxn costing >$100K;
• Consumer repped by atty (not provided/suggested by ∆);
• K doesn't involve consumer's residence

• DTPA won't apply if:
• Transaxn >$500K; and
• Doesn't involve consumer's residence

None.

Anyone who violates DTPA so long as goods/services form basis of complaint and ∆ acted in connection w/ consumer transaction

Nope.

• Nope, unless:
• Signed (by consumer) writing;
• Not in disparate bargaining position;
• Consumer repped by atty (of his own choosing);
• Waiver conspicuous, bold, 10 pt; and
• Title "Waiver of Consumer Rights"

Yep; DTPA provisions not exclusive and can bring along w/ other laws/CoAs; can't recover under DTPA and another law for same act

• Laundry list;
• Breach of express/implied warranty;
• Unconscionable actions;
• Violation of Ch. 541 of the Tex. Ins. Code

• (5) repping that g/s have characteristics/benefits they don't have;
• (7) repping g/s are of particular std, quality, or grade, when they are of another;
• (12) repping that agreement confers rights, remedies, or obligations it doesn't confer;
• (22) repping that work/svcs were performed when they weren't;
• (24) failing to disclose info w/ intent to induce the transaxn consumer couldn't have entered w/ the information

• DTPA doesn't create, allows CoA under:
• UCC warranties of merchantability/fitness for particular purpose;
• Warrant to repair in good and workmanlike manner

Act/practice that takes advantage of lack of knowledge, experience, ability, or capacity to a grossly unfair degree

• Obtained repped info from official gov't records;
• Obtained from another source (e.g., mfg tells dealer car gets 30 mpg when it doesn't);
• Concerning test req'd by gov't agency

Substantial factor that brought about the injury and w/o which the injury would not have occurred (no need for foreseeability, though)

2 years after discovery/should have discovered false/misleading act occurs

Extended by 180 days if consumer proves delay was caused by ∆'s knowing conduct calculated to induce consumer to refrain from filing suit

• 60 days written notice:
• Detailing specific complaint; and
• Damages for and atty fees to date
•  
• Not needed if <60 days from SoL running or claim asserted as counterclaim

∆ files plea in abatement w/in 30 days of original answer; suit must be abated until proper notice given

Either party can file mot. to compel mediation; if <$15K, moving party must pay costs

W/in 90 days from service of pleading seeking relief

W/in 60 days after filing suit; THEN w/in 90 days after answering; THEN w/in 20 days after mediation concludes

Offer to pay damages and reasonable atty fees incurred to date

30

If it goes to trial and damages = or substantially =, or are more than dmgs found by trier of fact, π recovers the lesser of damages tendered in settlement or found by trier of fact

Can limit atty fees, too! If amt is =, substantially =, or more than offered amount

Economic, mental anguish, trebled

Compensation for pecuniary loss (including costs of repair/replacement)

DOES NOT cover punitives, P&S, mental anguish, loss of consortium, physical impairment

Available if ∆ acted knowingly/intentionally

Treble economic damages and then mental anguish damages

Trebled economic damages AND Trebled mental anguish damages

• π: Shall be awarded if π is successful;
• ∆: If successful and suit was groundless and brought in bad faith/harassment purposes, can get atty fees

Allow other specifically-noted statutes to be enforced under DTPA; allows recovery (and trebling) of actual damages

• Health spa act
• Home solicitation act ($25/$100, three day cooling off period)
• TDCA

(Federal) Fair Debt Collection Practices Act

"Regularly engaged" collectors collecting on 3d party's behalf

• NOT allowed unless:
• To obtain debtor location;
• W/ prior direct consent of consumer;
• W/ express permission to ct.; or
• As needed to effectuate post-jgmt judicial remedy

• Consumer owes debt;
• No more than one contact (unless person requests them to call back);
• No postcards about debt;
• No language/symbols to communicate collector is in collection biz; or
• Only contact atty once collector knows consumer is repped by one

• No unusual time/place;
• If knowledge consumer is repped by atty, must contact atty; 
• If consumer's employment prohibits consumer from receiving such comms

Must stop if consumer notifies in writing that he refuses to pay debt or wants collector to stop

• Collector must give accurate notice about existence and amt of debt:
• W/in 5 days from call;
• Amount of debt;
• Name of creditor;
• Request w/in 30 days to verify will req collector to send verification;
• No answer w/in 30 days = validation of debt;
• If requested, will provide name of original creditor

If consumer notifies collector w/in 30 days, collector must cease collection of debt until they validate the debt

Collector can't demand consumer pay immediately or take axn prior to end of 30 day dispute period

• No harassment/abuse;
• No making threats;
• No false or misleading statements, or unfair pracices

Violator liable for atual damages and additional damages not to exceed $500

• Frequency;
• Nature; and
• Intentionality of noncompliace

Bona fide error: violatio was unintentional and a bona fide error, notwithstanding procedures in place to avoid such violations

1 year from date act occurs

Doesn't alter, annul, or affect anyone from complying w/ state laws!

Where underlying K debt was signed

Required when calling; must ID collection services real name

Not just to 3d party debt to collectors and allows criminal penalties

Yep.

Collectors must post ≥10K bond, send SoS copy

Threats/coercion; Harassment/Abuse; Unfair/unconscionable means; Fraudulent, deceptive, or misleading reps

None unless knowledge it repeatedly or continuously engaged in violations of TDCA

• Criminal: $100–$500 per violation; misdemeanor
• Civil: Injunction; actual damages

Yep. Same as DTPA circumstances.

Yep; available to collector/creditor

Prohibits unfair competition in insurance and unfair/deceptive acts or practices

Yep.

No misrepping policy Ks, false info/ads, defamation of insurer, etc.

• Misrepping material fact/policy provision at issue;
• No good-faith attempt to effectuate prompt, fair, equitable settlement of claim after its liability is clear;
• No prompt provision of reasonable explanation for reason of denial or offer of settlement;
• Failing w/in a reasonable time to affirm/deny coverage or submit reservation of rights; and
• Refusing to pay claim w/o conducting reasonable investigation w/ respect to claim

Not allowed (e.g., person I get in a wreck with is dissatisfied w/ my ins. co.)

Any person suffering damages under the act

Same as DTPA

Actual, injunctive relief

Same as DTPA

Same as DTPA

Same as DTPA

Same as DTPA

Not w/o court order

• No misrepping pertinent facts/policy provisions;
• Can't fail to acknowledge w/ reasonable promptness comms relating to claim;
• No stds for prompts investigation for claim;
• Several others, see notes

State Dep't may enforce

Prompt payment of claims

Nope.

• W/in 15 days, must:
• Acknowledge receipt of claim;
• Commence investigation of claim;
• Request all times that insurer reasonably believes will be required from claimant

W/in 15 days of all items needed to secure proof of loss, notification in writing

W/in 5 days of accepting claim

For >60 days, insurer pays claim + 18% interest

First party breach: Insurer fails good faith attempt to effectuate fair, prompt, and equitable settlement of claim when insurer's liability becomes clear

3d party claims: Stowers Doctrine: If insurer rejects unconditional settlement offer in policy limits and case goes to trial, ins. co. must pay entire jgmt, even if outside coverage limits

A person holding a remainder in a mortgaged property has a duty to pay the principal.

A life tenant has a duty to pay the interest on a mortgage.

However, the life tenant's duty is capped at: (1) rents and profits derived from a third person in possession of the property; or (2) the reasonable rental value of the premises, if the life tenant remains in possession of the property.

Yes. The TX UCC states that the date for calculating the demand period is the handwritten date.

Yes. The interest will be obtained from TX UCC provisions that provide a default rate based upon the judgment's locale.

• Unconditional promise to pay;
• A fixed amount of money;
• To order or bearer;
• Upon demand;
• Without any additional undertakings; and
• Signed by the maker

None.

• A security interest given to a trustee that is generally treated like a mortgage;
• Trustee holds deed until debt is paid

Only a personal representative.

Signatures operate as if they were on the will, but the will is not self-proving. It must thereby be proven by at least one witness attesting to the will in court.

If an SPA is attached to the will no further proof of its execution is required.

Yep.

• Power of sale clause;
• Written notice of default;
• Opportunity to cure;
• 20 days prior to posting notice of sale;
• 21 days prior to sale, give notice to debtor and public;
• Hold the first Tuesday of each month at the county courthouse, between 10 and 4

• Actual;
• Constructive;
• Inquiry

Ingress and egress

• ERA
• Existing use;
• Reasonable alternative;
• Available on-tract

June 8, 1983

Abuse of discretion

• (1) the landowner’s royalty paid under the terms of a lease;
• (2) the nonparticipating royalty interest (NPRI); and
• (3) the overriding royalty

the nonpossessory right to a share of production free of the costs of production.

• Entitles owner to stated share of production;
• No rights to delay rentals or bonus payments

Used to compensate workers who perform services related to the property of the lessee

• Allows a lessor to limit the lessee’s pooling power;
• It does not prevent pooling, only modifies the amount of acreage that can be held by a pooled well;
• Severs the lease into acreage held by the pooled unit well and unpooled acreage.

• Related to rent payments in the event of a dry well;
• If well is unproductive, lessee can maintain lease by paying delay rentals.

No. HOWEVER, if lease has "at the well" language, they may be liable for non-production costs, such as the cost of transportation, marketing, and compressing the gas once it has reached the surface.

• Written notice;
• State the earliest time at which the sale will begin

Nope. Judicial sales must.

In both counties.

• May only occur if the deficiency of the sale is egregious enough to overturn the sale;
• Must look to interests of the innocent 3d party buyer;
• EXTREMELY difficult to overturn the sale

• General
• Special
• Quitclaim

Seller warrants that no title defects have occurred during her ownership of the property and no defects in the chain of title

Seller warrants that no title defects have occurred during his ownership of the property (no warrant of no defects in chain of title)

None, he only conveys whatever interest he may have.

• It depends upon the circumstances of the sale and is fact-specific.
• If it occurred at a foreclosure sale, it's likely a quitclaim deed.

• Expectation damages
• Incidental damages
• Consequential damages
• Specific performance
• Rescission

• If nonconforming goods:
• Damages = value of goods contracted for - value of goods received

Can also recover for amount of cost to repair nonconforming good received

$500

Cost associated with obtaining replacement goods (e.g., you're sold a nonconforming truck; you can get the costs associated with looking for a conforming truck)

Additional losses that occur as a direct result of the breach.

• Parties must perform the contract as agreed;
• Hard to get, good must be unique, etc.

• Available in cases of fraudulent misrepresentation;
• Allows the contract to be "undone"

After probate has commenced, homestead is set aside for the benefit of the surviving spouse for her lifetime

• 50% to spouse
• 50% per stirpes to children

• 1/3 to spouse
• 2/3 to children

100% to spouse

Court can refuse to allow the SPA into evidence and require witnesses to attest to the will; BUT, court can accept the SPA, too, if it's properly executed under the laws of the other state

Cannot be held liable for partnership obligations beyond the amounts they contributed to the partnership

Unlimited; can seek indemnity for the LP, though, if liability incurred in the ordinary course of business.

Like a GP in taxation status and management, but liability of partners is limited

Marital property acquired with both community and separate funds; it is divided pro rata according to the portions of CP and SP used to acquire it.

• Person served while in Texas;
• Person has sex while in Texas and the child may have been conceived as a result

• 4 years: If child has presumed, acknowledged, or adjudicated father.
• Indefinite: If child has no presumed, acknowledged, or adjudicated father.

• The child;
• Mother of the child;
• Legal representative of an authorized person who is deceased, incapacitated, or a minor;
• A person related w/in 2° of consanguinity if the mother is dead

• Yep. Failure to submit can lead to:
• Contempt citation;
• A fine; or
• The court adjudicating his paternity

A rebuttable presumption of paternity is created if the DNA results are 99% certain.

• Can be rebutted by presenting other testing that excludes him as the father; or
• Present another man who could be the father; or
• Saying the test used is not one generally relied upon by experts in the field

A donor may not wish the minor to have full use or control of the bequest until they reach the age of majority

• Only one custodian for each gift;
• Gift must be placed in an account in the custodian's name, on behalf of the minor;
• Any adult or a trust company; 
• Must manage and invest property as a reasonably prudent investor;

• Application filed for *each* ward in the proper county––single guardianship of two or more wards is improper;
• The ward must have an attorney ad litem;

• The county in which both parents reside;
• County in which the sole managing conservator resides;
• County in which the joint managing conservator who has greater period of possession of the children

• Shareholder must hold shares at the time of the action;
• Shareholder must adequately represent the interests of the corporation;
• Notice of the claim 90 days before filing unless demand rejected or irreparable harm will result

Ordinary care

1 year.

The non-possessory co-T has to pay taxes on the land, but they are offset by the value the possessory co-T had in the land.

E.g., Pco-T pays $100 in taxes on land, but derived $50 benefit from land. NPco-T must pay $25.

Yes.

• "Lease includes all land owned by lesor adjacent to the land";
• Purpose: Pick up small strips of land not specifically included in granting clause;
• Doesn't pick up large tracts

• Payment to maintain an oil and gas lease after the end of the primary term;
• Only paid on wells capable of producing

Yep.

• Agreements for how to divide payments between interest-holders;
• Binding until revoked;
• Protects payor from double liability––hosed interest holder can't sue payor, must sue party who took too much payment

• Against drainage;
• To market;
• Develop

MIO can't buy two tracts and drill on  one and drain yours

Reasonably prudent operator

• Must find good price for minerals;
• No self dealing;
• Can't sit on lease and pay shut-ins

Must act as a RPO regarding development

e.g., can't drill one well on 500 acres when multiple wells could be drilled

• Unrebutted presumption of paternity;
• Acknowledgement of paternity;
• Adjudicated paternity;
• Established in probate proceedings by C&C

Nope. LL must repair conditions that materially affect health and safety of tenant (or tenant can use constructive eviction).

For commercial leases, yes; covers latent defects in the essential facilities of the property

• Latent: Can't be discovered through reasonably thorough inspection of the property
• Patent: Defect can be discovered in reasonably thorough inspection

• Factors:
• Degree of attachment;
• General custom;
• Degree of harm to premises if removed;
• Trade fixture (can always be removed).
•  
• Must be removed before lease is up (or reasonable time thereafter)

• Notify seller and give reasonably time to cure;
• If not cured: rescission, dmgs, specific performance

• Cost of foreclosure (including atty fees);
• Foreclosed mortgage;
• Junior interests;
• Mortgagee (if deficient, get deficiency judgment)

Pay off mortgage as you go; if you miss a payment, they can take property back immediately

• Seller must give buyer notice of prospective forfeiture;
• Must give 60 days to cure

• Court can award for earning potential rather than actual earnings if it believes obligor spouse is intentionally underemployed;
• Obligee spouse must show evidence obligor is intentionally underemployed (e.g., spouse is making substantially less than before divorce);
• Obligor spouse must show that underemployment was not intentional

Nope. Presumed a gift to the other spouse and thereby gives each 1/2 of the property as separate property.

• Must give specific findings of fact as to why the statutory mandate is being ignored.
• Factors:
• Special needs of the child;
• Both parents' abilities to support the child

• Adequately describe property;
• Signature of conveying party

• Valid deed;
• Witnessed or acknowledged by notary public

• Purchase money mortgages,
• federal tax liens,
• unpaid property taxes on the property,
• mechanics' and materialmen's liens on the property if in writing,
• loans to enable divorce, and home equity loans for up to 80% of the property

roceeds from selling the oil or gas – the operation costs – taxes = positive figure

Nope. Royalty interests are obtained before production costs are deducted.

• Independent executor,
• Dependent executor, and
• Muniment of title

• Small estates (<$50,000 with no debt);
• Easiest way to settle the estate

• - Same power as a dependent administrator;
• - Must file an application for letters testamentary; and
• - Post a bond within 20 days of the letters being issued.
•  
• - File inventory w/in 90 days;
• - Give notice to named B's w/in 60 days;
• - Post notice for all creditors w/in 30 days;
• - Must give accounting w/in 15 months of issuance of letters testamentary and every 12 months after that
•  
• (Absent clear distinction otherwise, person named in will should be executor)

• Most difficult administration type;
• Can do everything dependent administrator does, but must first get court permission

• At a minimum:
• the identity of the parties (the mortgagor and mortgagee),
• the intent to create a security interest, and
• a description of the property.

• Ultra vires k's are valid;
• Shareholders can seek injunction;
• Responsible officers and directors are liable to corp for losses

Sept. 1, 2003

• Unanimous written and signed consent to act w/o meeting;
• Meeting satisfying quorum and voting rules (quorum present, majority vote)

Only liable if breach of duty caused loss

Board hurts corporation through affirmative act, BUT protected by BJR

Court will not 2d guess decision made in good faith, informed, and with rational basis

• Interested director transaction deal b/w the corp and director;
• Competing ventures;
• Corp. opp.

UNLESS deal was fair/material facts disclose AND disinterested D's approved

• Voted against act;
• Put it in writing (either in minutes or leter to corp. secretary)

• None: if liable for willful/intentional misconduct;
• Mandatory: D is wholly successful on merits
• Permissive: Anything not above

• Close corp;
• Art or unanimous s'holder agreement provides for s'holder mgmt

• Owns stock for at least 6 mos or has ≥5% of oustanding shares;
• Written demand stating proper purpose;
• If corp doesn't allow, s'holder can get ct. order and recover expenses/atty fees

• Board approval; AND
• 2/3 s'holder vote
•  
• (Allows dissent and appraisal unless on nat'l stock exchange or ≥2000 shares)

• Written objection before vote and intent to demand payment;
• Abstain or vote against; AND
• Written demand to be bought out w/in 20 days

• Written consent of s'holders; OR
• Board res. and 2/3 s'hodler vote; THEN
• Send notice of dissolution to creditors

• (1) Warrantor could enforce draft at time of transfer
• (2) No alterations
• (3) No knowledge that signature of drawer is unauthorized

• (1) Transferor is entitled to enforce instrument
• (2) All sigs are authentic and authorized
• (3) No alterations
• (4) Not subj. to defense
• (5) No knowledge of any insolvency proceeding against maker

Presentment warranties; transferor warranties.

"Pledge" collateral; creditor takes possession of the collateral––no security agreement is needed.

When it's a charitable trust and the beneficiary fits with the material purpose of the trust (still must notify the AG)

Yep. Paternity established.

Man voluntarily assumes child support for the care of the child.

Unanimous consent

Nope.

• Yep; reasonable notice required.
• Needs time, place, and date of meeting. Not purpose (purpose only needed for s'holder meeting).
• Vote w/o notice are invalid.
• WAIVED if all board members show up.
• Called by 10% of shares, or bylaws.
• Notice given to all s'holders w/in 10-60 days before meeting

If in the bylaws.

• Quorum (even if one walks out);
• Majority vote yea.

E.g., 7 directors. 4 show up. Quorum present. One leaves before vote. 2 vote yes, 1 votes no. Valid action (although there is some unsurity about this).

No.

The more permanent disposition will be gone with, usually.

All to SS.

• 1/2 to SS
• 1/2 to children, per cap w/ representation

• 1/3 to SS
• 2/3 to descendants

• 1/3 to SS
• 2/3 to children per cap. w/ rep

• All to SS
• None to other heirs

• 1/3 LE to SS 
• 2/3 to children per cap w/ rep; 1/3 in remainder

• 1/3 LE to SS 
• 2/3 to children per cap w/ rep; 1/3 in remainder

• 1/2 to SS in FS
• 1/2 to parents

• 1/2 to SS
• 1/2 to parents' descendants (brother)

100% to SS

100% to children, per cap. w/ rep.

100% to kids, per cap w/ rep

(In this case Y and Z get 1/3 each, C gets 1/3 (but if C had brother, each would get 1/6))

1/2 to each parent

• 1/2 to living parent
• 1/2 to collaterals, per cap w/ rep

100% to descendants of collaterals, per cap w/ rep

• 1/2 to maternal side
• 1/2 to paternal side

• Named executor
• Surviving spouse
• Primary beneficiary
• Any beneficiary
• Next of kin

• Surviving spouse
• Next of kin

He can't.

• "Reasonable" compensation;
• 5% of trust assets has been found to be reasonable;
• 1/2 from corpus, 1/2 from principal

• Economic benefits;
• Long term benefit to trust portfolio;
• Effect of purchase on overall portfolio

Nope. Can be indemnified.

• Must: O/D sued in his capacity and is completely successful
• May: Any other act *not resulting from willful or gross neg*
• Can't: Acts resulting from willful or gross neg

• Names of the parties;
• Duration of lease;
• Date rent is due;
• Amount of rent

(Notarization, etc. not required)

None. But, may be able to get reduced rent to compensate for his loss of use of the leasehold.

Yes. If tenant is behind on lease, or hurting the property in such a way so as to hurt the property value.

First communication from creditor must state that the communication is from a debt collector and that any information obtained may be used to collect the debt.

(All subsequent comms must include this, too)

"If the owner owes less than he conveys, his payment will be reduced proportionately."

• Correlative rights;
• Prevent waste;
• Protect the environment

"Top lease must vest w/in 21 years." Lessors are usually happy to grant that.

• Valid contract;
• Reference in the will stating K exists and K's material provisions

• Proper presentment for payment is made and refused;
• Notice of dishonor may be given by any reasonable commercial manner

• Take instrument for value;
• In good faith;
• Without notice of dishonor;
• No notice of unauthorized signatures;
• No notice of defenses or claims

Delivered by a person other than its issuer for the purpose of giving right to enforce the instrument to the person receiving delivery

• Lawsuits;
• Enforcement of pre-bankruptcy judgments;
• Act to obtain possession of estate prop;
• Act to create/perfect/enforce liens on debts that arose before bankruptcy;
• Act to recover on claim against debtor on debt arising before bankruptcy; 
• Setoff debt that occurred before bankruptcy;
• Proceedings in US tax court

Nope. It's all or nothing.

• SP authorizes;
• BIOCOBS;
• Garage sale

Replevin

(Shares voting / (directors + 1)) + 1

• Applicant must file a doctor's report of the proposed ward created w/in 120 days before application;
• Must list specific facts for court to base its opinion on

• Presumption for JMC;
• Factors:
• Parties' working relationship;
• What children want (if over 12);
• Geographic distances;
• Relationship of all parties;
• Age of the child

• Unconscionable;
• No fair notice of nature and extent of prop (didn't waive such notice and didn't have a chance to become knowledgeable about the prop); or
• Involuntary

• Separate property;
• Earning capacity;
• Custody of children of the marriage;
• Family violence; and
• Fault of marriage breakup

• 10 ≤ 60 days' notice;
• Can only conduct biz that's in the cert

Pres. and sec. (can be same person)

• Name of presenting party;
• Exhibition of the instrument;
• Full payment

6 mos

SAND PODS

• Stock information
• Agent: Name/Address
• Name (w/ corp)
• Duration
• Purpose
• Organizers: Name/Addresses
• Directors? Number, names, addresses
• Shareholder agreement governance? Name/Address of managers

Apportionment

• Will provides for one;
• All distributees agree on intep. admin.

• Any act dependent admin. could do, but w/o court order necessary;
• BUT, if will creates power of sale, RP can be sold irrespective of estate debts;
• BUT, if will doesn't give power of sale, RP can only be sold to satisfy debt

• File closing report containing:
• Property rec'd;
• Debts paid;
• Expenses;
• Names/addresses of distributees

• Give notice w/in 2 months to SP creditors;
• SPs then have 4–6 mos from death to present their claims (if they don't, they'll only be protected up to value of collateral)

• Funeral expenses and medical bills up to $15K;
• Family allowance;
• Administration expenses;
• Secured claims;
• Child support;
• State taxes;
• Cost of confinement in prison;
• Reimbursement to medicaid;
• All other costs

• HEF: Occupy homestead for life;
• If no homestead: $15K allowance;
•  
• Can claim exempt personal prop up to $60K;
• If none: $5K allowance;
•  
• Can claim family allowance for maintenance for 1 year by showing inadequate SP for their support

• Court approval;
• Show he can no longer appropriately serve as trustee;
• Must provide accounting

• Any specifically named charitable B;
• AG

12 months after trust creation and then every 12 months

4 years

• Delay rental: Income
• Royalty/Bonus: Equitably (Presumed equitable: 15% to principal; pre-2004 27.5% to principal)

S can include exculpatory clause relieving Trustee of liability EXCEPT for gross neg, fraud, or bad faith

• Take oath;
• Post fiduciary bond w/in 20 days;
• Publish notice of admin. w/in 30 days;
• Inventory of estate w/in 30 days;
• Application for monthly allowance w/in 30 days;
• Application to develop investment plan w/in 180 days

• Consumer: w/in 20 days
• Non-consumer: on debtor's request

• SP liable for actual damages;
• If consumer good: 10% recover of purchase price and all interest charged

• Right to redeem prop. for money currently due and addt'l reasonable expenses BEFORE:
• Property has been sold or strictly foreclosed;
• Or contract for sale has been entered

• Consumer transaxn: Sale of collateral for total satisfaction of debt (unless >60% of good is paid for)
• Non-consumer: Total or partial satisfaction

Either way: debtor must consent

• CP presumed to be w/drawn first;
• SP is lowest intermediate balance

• Promoter must fully disclose any profit being made on dealing w/ corp;
• Profit figured on FMV;
• Approval by maj. of disinterested directors or all initial s'holders

S'holder of record on the record date

the corp.

Surplus

• 1. Back taxes
• 2. Debt of obtained by fraud (imputed if bought luxury good >$550 and files w/in 90 days)
• 3. Extension of consumer credit w/in 70 days of bankruptchy if >$825
• 4. Debts incurred while acting as a fiduciary
• 5. Not listing debts in time to allow creditors to make claim
• 6. Debts for domestic support
• 7. Debts from tort commission
• 8. Student loans

• Defined: Non-possessory use in land;
• Appurtenant;
• In gross

Directly benefits the use and enjoyment of a specific piece of liand

No dominant estate, benefits a person, not land

Once any member of a class is entitled to a distribution, the class closes

• Completion clause;
• Force majeure;
• Shut-in royalty

Sudden stoppage due to mechanical breakdown; must fix w/in a reasonable time

(if lease says what a reasonable time is, must go by that time; e.g., "60 days to repair after temporary cessation", MIO doesn't repair until 61 days because area flooded for 50 days--doesn't cut it)

10% (if they have notice of the subK)

Withhold the amount necessary to pay the subK until the contractor pays the subKer.

(SubKer can obtain a lien on the funds withheld by the owner)

Where a debt is subject ot a bona fide dispute, a debtor, in good faith, can sent partial payment to the creditor in satisfaction of the full accont balance where the payment is conspiuously marked PAYMENT IN FULL

• DEFENSES:
• - Paid in full checks have to go one place, debtor sent to another;
• - Where clear the check was rubberstamped by a worker w/o knowledge of notation/effect of notation, will not satisfy where company notices and objects (90 days);

Exclusive.