Section 38 of the Texas probate Code lists two possibilities. A person may die intestate either as to the person, ie no valid will, or as to property, ie a valid will which fails to dispose of all of the person’s property. The property is then distributed by the state law of descent and distribution. Two persons are related to each other by consanguinity if one is a descendant of the other or they share a common ancestor. Two persons are related to each other by affinity if they are married to each other or if the spouse of one of the persons is related by consanguinity to the other. Divorce terminates relationships by affinity. First is an intestate death leaving no husband or wife, no surviving spouse. We are dealing only with seperate property. All the property goes to the children and their descendants. Descendants are the offspring of the offspring, so this is usually grandchildren.
Intestate Succession
December 9th, 2008Community Property in Texas
December 9th, 2008Section 45 of the Texas code discusses Community Property. Community Property is all property acquired during marriage that is earned. It will be owned equally in undivided interest of the spouses. The statute provides that if all the children of the diseased spouse are in common with the surviving spouse, then the surviving spouse inherits all of the community property of the diseased if they have no children or children in common. However, if the surviving spouse has children or descendants who are not in common, then one half of the community proeprty is divided among the children of both the common and prior relationship.
Insurance Contracts
December 5th, 2008There is first and third party insurance. Life insurance is 1st party. Health insurance too. In Texas, the application of the policy may or may not be the contract. Sometimes the application and policy equals a contract. Other times just the policy is enough. Section 705.103 says both must be present “life insurance policy must be accompanies by application”. Page 631 – “a life insurance policy must be accompanied by a copy of the applications along with questions and answer” – 205.103. Article 1101.003 states a life insurance policy must provide that the policy or it must provide that the policy and the application constitute the contract. Two questions involve binder and conditional receipt. What is a binder or a conditional receipt? Agent takes policy and gives her a binder. The elements of a contract are: offer and acceptance, meeting of the minds, mutuality, and, intent.
Another name for binder is conditional receipt. If it is a conditional receipt. A binder in Texas creates temporary insurance. Even though they haven’t investigated and there is no promise to insure Mary. This binder is called a legal fiction. If you give someone an application and that person completes the app and that person gives you the first premium, in Texas, we have temporary insurance. These fall under personal injury because the applicant of either fraud or bad faith or malice.
Securities
December 3rd, 2008When you buy 100 shares of stock in ford, it has a specific value that can go up and down. When you the testator bought 100 shares you paid 100k. When you die that stock will be worth some other value. The value is immaterial if you give the stock. But ford also pays cash dividends – payable out of profit of organization. They’re like interest so that any cash dividend paid during the life of the testator goes to the general estate. Does not go with the stock even if it’s paid after the death of the testator. But any cash dividend declared and paid goes to the devisee.
Stock dividends only gives you more shares to show your value. Ford might have decided to issue a stock divided 1:1. Every share you have gets another. Stock dividends do not increase in value. Stock splits. Corporate devise which increase the number of shares but do not decrease the value or could be reverse split. The general rule is dividends and splits do not change any value. Therefore any such devise before the death of the testator so that it will go to the devisee of the original amount of shares. Merger also does not change the value of your bequest. Merely a change in the book keeping does not change your bequest. Problem: whether or not devise of stock is specific or general. If specific, it takes with it the aforementioned wills. If general, a general devise of stock is considered stock. If general and there’s no stock in the case you get value. If specific, you get nothing.
Lost Wills
December 3rd, 2008Proponent of one of the wills is attempting to probate. There is a revocation involved. You must proved that your will was not revoked. You have the burden of proving which of the two wills was created last. There is going to be no will probated. Court talks about the presumption of no revocation. A presumption which will carry your burden if there is nothing to the contrary.
Lost wills Ashley case you have to prove up the instrument that revokes – this shifts the Burden of Proof. Dissenting opinion is attempting to say that that will is going to be allowed unless revocation is proven. It is difficult to frame a negative issue. Rule 76a deals with the possibility of a lost will. The key words we want there is lost and destroyed. We know there’s a will but we don’t know where it is. The cause of nonproduction must be proven and must be satisfied by due diligence. You first must show why you cannot produce the will. You must prove content by testimony by credible witness who has heard the will and read it. You must prove the content of what the will said.
Legal Information
November 28th, 2008Plea to the Jurisdiction – The proper direct attack for want of subject matter jurisdiction is a “plea to the jurisdiction,” not a “motion to dismiss” as in federal court. A motion for summary judgment may also be used to raise a lack of subject matter jurisdiction. Plaintiff can appeal from a trial court’s determination of lack of subject matter jurisdiction and the resultant dismissal and, if successful, the appellate court will remand for a full trial. If however, the tiral court erroneously asserts jurisdiction, defendant’s only remedy is an appeal after final judgment.
No waiver – Subject matter jurisdiction cannot be waived. It can be raised on the first time in appeal. A court without jurisdiction may not transfer the case, but can only dismiss so that the case can be refiled. Subject matter jurisdiction is not limited to the amount in controversy. A court lacks SMJ when the plaintiff lacks standing, when the suit is not yet rip for decision, and when the defendant is immune from suit.
Professional Responsibility in the Legal Profession
November 25th, 2008These problems usually flow from the fact that troubling issues of professional ethics involve conflicts among 3 ideas that are central to the lawyer’s role: the lawyer as fiduciary, the lawyer as an officer of the court functioning in an adversarial system, and the lawyer as an individual w/ personal values and interests.
The Lawyer as Fiduciary
A fiduciary relationship is different from a regular business relationship. A lawyer’s contractual relationship is secondary to the duties that they owe to their clients. Fiduciary obligations that lawyers owe their clients include 3 specific duties: duty of competence, duty of loyalty, and duty of confidentiality.
The Lawyer as an Officer of the Court in an Adversarial System
An adversarial system has (1) a neutral decisionmaker, (2) competent advocates zealously presenting the positions of each of the interested parties, and (3) rules of procedure fairly designed to allow the presentation of relevant evidence to the decisionmaker.
The Lawyer as a Person with Interests
The rules contain some regulation of fee agreements and business transactions between lawyers and clients and limitations on advertising and solicitation, and prohibitions on unauthorized practice of law. However, the model rules only scratch the surface in which business considerations shape a whole range of issues of professional ethics. Professional obligations also can involve conflict concerning personal beliefs and representation.
Zones of Evidence
November 23rd, 2008Texas civil procedure law features 5 zones of evidence. Zone 1 is no evidence or only a scintilla of evidence while zone 5 is conclusive evidence. Both enable a court to issue summary judgment.
Zone 1 – No evidence. Did the movant in a sj that the person with BOP has no evidence or no duty? Generally, this means there will be a judgment for the non-movant. Ex P has burden and sues but trial court has no evidence, judgment for D
Zone 5 – Conclusive evidence. P comes in with conclusive evidence and if trial court agrees they enter in a judgment for the person with the burden
Zone 2 – Insufficient evidence – some evidence but not enough to support a judgment for the person with the bop. Remedy here is new trial if there was actually some evidence on appeal. 2 or above so it gets to go to jury. If jury finds for the P. Then the other side comes in and says there was insufficient evidence to support a judgment for P. If judge agrees, grants a new trial.
Zone 3 – Jury will not be reversed.
Zone 4 – Great weight of preponderance. The jury finds against the person with the BOP. Really what they’re saying is there is no or insufficient evidence. P argues that this case is really a 4 or 5. You have to ignore jury’s verdict, you have to enter a judgment for me. If judge finds the verdict is against weight of evidence, then can order a new trial.
Contract Law
November 1st, 2008A contract “K” is essentially an agreement/promise to perform by two parties. When the contract is negotiated by two parties, it is called a bilateral contract. However, when one party either must sign or not sign a deal, that is called a unilateral contract because there is no bargaining power. In law, when one party does not perform their duties, they have breached the K. In order for their to be a contract, there must be a meeting of the minds on the terms in the agreement and there must be consideration given in exchange for a service, good, etc. If there is no consideration, there can not be a contract. To help bring more uniformity to court decisions involving contracts, the UCC or Uniform Commercial Code was created and is followed in many states. The UCC is for contracts only involving goods.
Common Law
October 31st, 2008Common Law is judge made law where courts create law where there is no present legal authority in the statutes or prior case law. Judges have the legal authority to create law by making precedent. Precedent is derived from common law and binds future decisions. When parties disagree on what the actual law is during a case, a common law court will look to past precedent of relevant court authority to rule on that issue. If a matter of dispute is unique from previous cases, it will be decided as a matter of first impression. Courts are very careful in crafting new laws and usually seek to avoid the issue if the materiality of the case does not hinge on the issue. This is common in Supreme Court cases where the justices will ignore an issue that is not necessary to decide the case.