New York Bar Day 1 Thread Forum

[phonepro]

[/quote]

I don't think that paternity was at issue. Tom swore in a statement or something that he was the father. Plus, it would have been super odd to see paternity/domestic relations in two separate essays (since essay 1 had paternity as an issue in whether the father could deny consent to the adoption).[/quote]

Def think theres points in both - why not just make Wanda bitch a regular afterborn child. They wanted you to recognie that usually bastards dont have rights in fathers estate unless paternity is established. Here paternity was established by the father signing. Thus, she will take b/c shes afterborn, not provided for in will or otherwise.

[kaiser]

I don't think that paternity was at issue. Tom swore in a statement or something that he was the father. Plus, it would have been super odd to see paternity/domestic relations in two separate essays (since essay 1 had paternity as an issue in whether the father could deny consent to the adoption).[/quote]

Def think theres points in both - why not just make Wanda bitch a regular afterborn child. They wanted you to recognie that usually bastards dont have rights in fathers estate unless paternity is established. Here paternity was established by the father signing. Thus, she will take b/c shes afterborn, not provided for in will or otherwise.[/quote]

Right, thats the point in them making the child illegitimate, so that we have to note that illegitimate children of the testator have an equal right to inheritance like any other child. They used that statement by Tom to bridge the gap on the paternity issue, and take us right to the pretermitted child stuff.

[phonepro]

I don't think that paternity was at issue. Tom swore in a statement or something that he was the father. Plus, it would have been super odd to see paternity/domestic relations in two separate essays (since essay 1 had paternity as an issue in whether the father could deny consent to the adoption).

Def think theres points in both - why not just make Wanda bitch a regular afterborn child. They wanted you to recognie that usually bastards dont have rights in fathers estate unless paternity is established. Here paternity was established by the father signing. Thus, she will take b/c shes afterborn, not provided for in will or otherwise.[/quote]

Right, thats the point in them making the child illegitimate, so that we have to note that illegitimate children of the testator have an equal right to inheritance like any other child. They used that statement by Tom to bridge the gap on the paternity issue, and take us right to the pretermitted child stuff.[/quote]

Agree! lol

[phonepro]

can you commit a robbery by stealing property you own?

[stayway]

.

[sergris]

WC comp doesn't end when you retire?

[kaiser]

Ugh. Am I fucked bc I talked about full on negligence elements and such for (1) and (2) instead of fucking WC. Fucking asshole jake.

Oh me to. Beauty of a negligence analysis if I do say so myself

Dude, don't worry. You can miss an issue in every single essay and still be fine.

[BillyNoseBleed]

Someone next to me started their MPT with only 20 minutes to go.... I think they only typed about 6 lines total. so it could be worse.

[kaiser]

can you commit a robbery by stealing property you own?

Nope. B was trying to reclaim property over which he believed he had a claim of right (and over which he did in fact have a claim of right). Robbery is simply a form of larceny, after all. You can't be guilty of robbery for stealing what you believe to be your own stuff.

[stayway]

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[kaiser]

Ugh. Am I fucked bc I talked about full on negligence elements and such for (1) and (2) instead of fucking WC. Fucking asshole jake.

Oh me to. Beauty of a negligence analysis if I do say so myself

Dude, don't worry. You can miss an issue in every single essay and still be fine.

If I remember correctly, I went crazy on (1) talking about standard for motion to dismiss based on failure to bring c/a and went hard at negligence, comparative negligence, and assumption of risk. Then for (2)s cross claim dismissal ended up talking about some bullshit instead of grave injury relating to wc. Fml.

I simply did a full on negligence analysis for the employer's failure to warn. Said stuff about how misfeasance typically isn't actionable, but special relationship between employer and employee makes failure to provide protection a possible breach. Didn't really go into defenses much. For the cross-claim, just did basic discussion of joint/several liability, what contribution is, how 3rd party claim works. Then the SOL issue for the latent defect, then strict liability analysis (which was by far my longest section). First portion is clearly off base, but if the analysis is good, then whatever. Will still probably be enough points.

[APimpNamedSlickback]

wasn't the joint savings account a basic totten trust, such that it was survivable notwithstanding tom's control? this question really threw me for a loop.

oh, and to be clear, justification = self-defense/defense of property, no?

[kaiser]

wasn't the joint savings account a basic totten trust, such that it was survivable notwithstanding tom's control? this question really threw me for a loop.

Nah, totten trust has to be for the benefit of another party, and payable on the death of the creator of the account. This was just a regular joint bank account with right of survivorship. I had no clue what the issue was when I saw this, and checked the CMR when I got back. Its about when a right of survivorship exists in a joint bank account, and how clear and convincing evidence can defeat that right if circumstances indicate that the joint account was simply a matter of convenience, which the facts, in retrospect, seemed to indicate in the essay today.

[APimpNamedSlickback]

wasn't the joint savings account a basic totten trust, such that it was survivable notwithstanding tom's control? this question really threw me for a loop.

Nah, totten trust has to be for the benefit of another party, and payable on the death of the creator of the account. This was just a regular joint bank account with right of survivorship. I had no clue what the issue was when I saw this, and checked the CMR when I got back. Its about when a right of survivorship exists in a joint bank account, and how clear and convincing evidence can defeat that right if circumstances indicate that the joint account was simply a matter of convenience, which the facts, in retrospect, seemed to indicate in the essay today.

really? kaplan says that even if the creator's intent was tentative and he clearly intended for the beneficiary to have no rights to the account while hes alive, a court may still find a totten trust. ah well.

[phonepro]

wasn't the joint savings account a basic totten trust, such that it was survivable notwithstanding tom's control? this question really threw me for a loop.

Nah, totten trust has to be for the benefit of another party, and payable on the death of the creator of the account. This was just a regular joint bank account with right of survivorship. I had no clue what the issue was when I saw this, and checked the CMR when I got back. Its about when a right of survivorship exists in a joint bank account, and how clear and convincing evidence can defeat that right if circumstances indicate that the joint account was simply a matter of convenience, which the facts, in retrospect, seemed to indicate in the essay today.

I wrote all that but came to a different conclusion. First of all it pissed me off that no one was contesting it so no one was establishing clear and convincing evidence. Also b/c if one party puts all the money in its considered a gift and still passes blah blah, i just wrote that theres no evidence it was just for convenience even though it was opened to take care of him. Maybe because he was taking care of him he wanted him to keep the money as a gift for taking care of him. Also he obvi loved A the best by giving him the sick Porsche lol.

[kaiser]

^^^

I went the opposite way with it. The account was simply because he figured he couldn't really be taking care of himself if he is incapacitated. He simply needed someone to do it for him since it would have been impossible for him to do it himself. So he opened that account, yet handled every matter of it himself, and never had A touch a single penny, and specifically told A it was so T himself would be taken care of if he became incapacitated. Seemed like a matter of convenience to me, with the right of survivorship merely incidental to the account, and never really an intention.

But you could discuss the same facts, come to a totally different conclusion, and get the same points (or more). Conclusion is probably the least important thing.

[brassmonkey7]

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[kaiser]

I toyed with saying if you take back your own property it's not robbery but then I just made up some shit about non-justified defense of property. lol.

As for the joint bank account totten trust whatever it was issue:

http://www.newyorklawjournal.com/PubArt ... t_Accounts

I googled this cause I had no idea what they were talking about either. Apparently, a signature card signed by two parties including right of survivorship language is per se evidence of a joint bank account with rights of survivorship. I'm pretty sure that was a fact in the essay wasn't it?

Yup. Thats the general rule presumption, that if both sign the card stating it, then its the presumption. And it takes clear and convincing evidence that the account were merely a matter of convenience to overcome that and prove that right of survivorship was never really intended. So the card gives the general rule (right of survivorship presumed), and the circumstances give the counterpoint (maybe it wasn't really intended, and was just matter of convenience).

[brassmonkey7]

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[sergris]

Can somebody explain why worker's comp was an issue since the guy was retired? I thought it didn't apply to retirees...

[kaiser]

Can somebody explain why worker's comp was an issue since the guy was retired? I thought it didn't apply to retirees...

I would love for you to be right lol

But the claim was one that arose when he was an employee, since thats when the supposed "breach" occurred when the failed to provide respiratory protection. I mean, if I'm injured on the job, and then retire the next day, I don't think I can go and sue for the injury the day before.

[legalnoeagle]

I probably completely misread, but I thought the Wills/bastard child question made the pretermitted issue moot, since the kid was presumably alive when the Dad acknowledged paternity.

I wrote some plain meaning BS about how if the Dad wanted the kid to share in the will then he would have/could have amended but didn't, so the kid only gets his intestate share since the class gift was specific and didn't include him.

Oh well.

[phonepro]

I probably completely misread, but I thought the Wills/bastard child question made the pretermitted issue moot, since the kid was presumably alive when the Dad acknowledged paternity.

I wrote some plain meaning BS about how if the Dad wanted the kid to share in the will then he would have/could have amended but didn't, so the kid only gets his intestate share since the class gift was specific and didn't include him.

Oh well.

A pretermitted child is a child born after execution of a will and not provided for - not a child born after death.

[legalnoeagle]

I probably completely misread, but I thought the Wills/bastard child question made the pretermitted issue moot, since the kid was presumably alive when the Dad acknowledged paternity.

I wrote some plain meaning BS about how if the Dad wanted the kid to share in the will then he would have/could have amended but didn't, so the kid only gets his intestate share since the class gift was specific and didn't include him.

Oh well.

A pretermitted child is a child born after execution of a will and not provided for - not a child born after death.

Yeah, I confused execution with distribution, all while still throwing in some shit about pretermitted kids because I wasn't sure. Hopefully I wrote enough for a 1/2pt.

[stayway]

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