Mixed Deck — All MI BAR Topics Flashcards

Under Michigan law, nonprobate transfers such as POD accounts and revocable trust assets are counted for elective share purposes how?

Answer: Property derived from the decedent outside the will reduces the electing spouse's share by half its value

Michigan reduces the elective share by one-half the value of property the spouse derived from the decedent by means other than the will, rather than using a full augmented estate.

Under the Michigan Trust Code, a valid private express trust requires all of the following EXCEPT:

Answer: A written instrument signed by two witnesses

Michigan trusts need capacity, intent, ascertainable beneficiaries (or an exception), and trustee duties, but an oral trust of personal property can be valid without witnesses.

What is a material breach of contract?

Answer: A breach so substantial that it excuses the non-breaching party from further performance

A material breach is a failure to perform a substantial part of the contract, going to the essence of the agreement and depriving the other party of the expected benefit.

In Michigan, which of the following is true about the statute of limitations for breach of a written contract?

Answer: The statute of limitations is 6 years from the date of breach.

In Michigan, the statute of limitations for actions founded on contracts, including written contracts, is generally six years. This is stipulated under Michigan Compiled Laws (MCL) 600.5807(8). The six-year period begins from the date the breach of contract occurs, after which legal action cannot typically be pursued.

Under the Takings Clause of the Fifth Amendment, when the government permanently physically occupies private property, compensation is required:

Answer: Always, regardless of the duration or economic impact of the occupation

In Loretto v. Teleprompter Manhattan CATV Corp., the Supreme Court held that any permanent physical occupation constitutes a per se taking requiring just compensation regardless of economic impact.

A woman was cornered in an alley by an attacker brandishing a knife and demanding her life. She shot him. In a jurisdiction with no duty to retreat, her self-defense claim requires showing:

Answer: A reasonable belief that deadly force was necessary to prevent imminent death or serious bodily harm

Deadly force in self-defense requires a reasonable belief of imminent threat of death or serious bodily injury, with no retreat duty in a stand-your-ground jurisdiction.

What is the Rule Against Perpetuities?

Answer: A rule requiring that future interests must vest within a life in being plus 21 years

The Rule Against Perpetuities invalidates future interests that might not vest within 21 years after the death of a measuring life in being at the creation of the interest.

When a government actor deprives a person of a protected liberty or property interest, procedural due process requires at minimum:

Answer: Notice and an opportunity to be heard

Procedural due process requires, at a minimum, notice and a meaningful opportunity to be heard before the government deprives a person of a protected interest.

When analyzing an Establishment Clause challenge, which test has courts traditionally applied to determine whether a government action unconstitutionally endorses religion?

Answer: The Lemon test and/or Endorsement test

Courts traditionally applied the Lemon test (secular purpose, neither advances nor inhibits religion, no excessive entanglement) and Endorsement test to Establishment Clause challenges.

A plaintiff from Ohio sues a defendant from Michigan in federal court, asserting one claim for $50,000 and an unrelated claim for $40,000 against the same defendant. Is the amount-in-controversy requirement met?

Answer: Yes, because a single plaintiff may aggregate all claims against a single defendant

One plaintiff may aggregate all claims, related or not, against one defendant to satisfy the $75,000 amount-in-controversy requirement.

A secured party's collateral is a debtor's accounts. After default, the secured party wants payments made directly to it. What may the secured party do under Article 9?

Answer: Notify the account debtors to pay the secured party directly

Under UCC 9-607, after default a secured party may notify account debtors to make payment directly to it and collect the accounts.

Under EPIC's harmless error rule, a document not executed with will formalities may still be probated if what is shown?

Answer: Clear and convincing evidence that the decedent intended it as a will, revocation, addition, or revival

MCL 700.2503 allows probate of a noncompliant document on clear and convincing evidence of the decedent's testamentary intent.

What is the primary test used to determine whether a government action violates the Establishment Clause of the First Amendment?

Answer: Lemon Test

The Supreme Court's 'Lemon Test,' established in *Lemon v. Kurtzman*, is the primary test used to determine whether a government action violates the Establishment Clause of the First Amendment. For a law to be constitutional under this test, it must have a secular legislative purpose, its primary effect must neither advance nor inhibit religion, and it must not foster excessive government entanglement with religion. This test provides a framework for evaluating church-state separation.

In Michigan, which of the following is true regarding the "collateral source rule"?

Answer: A plaintiff’s recovery is not reduced by the amount received from collateral sources, such as insurance.

The collateral source rule in Michigan dictates that a plaintiff's recovery for damages in a personal injury case is generally not reduced by payments received from independent sources, such as their own insurance. This rule prevents the defendant (the tortfeasor) from benefiting from the plaintiff's foresight in securing insurance or other benefits, ensuring the plaintiff is fully compensated for their losses. The defendant remains liable for the full extent of the damages they caused.

A statute requires drivers to stop for school buses loading children. A driver violated the statute and struck a child crossing to board the bus. The statutory violation most likely establishes:

Answer: Negligence per se, because the child is in the protected class and the harm is the type the statute prevents

Violating a statute designed to protect this class of persons from this type of harm conclusively establishes duty and breach in most jurisdictions.

A Michigan decedent dies intestate survived by a spouse and two children who are also the spouse's children. The spouse takes what?

Answer: The first indexed statutory amount (roughly $150,000 adjusted for inflation) plus one-half of the remaining estate

Under MCL 700.2102, a spouse sharing with joint descendants takes an inflation-adjusted lump sum plus one-half of the balance.

A lender wants a PMSI in a retailer's new inventory to have priority over an earlier-filed inventory financer. What must the lender do?

Answer: Perfect before the debtor receives the inventory and send authenticated notice to the earlier-filed financer

Under UCC 9-324(b), an inventory PMSI requires perfection by the time the debtor receives possession plus advance authenticated notice to conflicting inventory secured parties.

What is the first-to-file rule in secured transactions?

Answer: Among perfected security interests, priority generally goes to the first to file or perfect

Under UCC Article 9, when multiple perfected security interests exist in the same collateral, priority is generally determined by which was first filed or perfected.

At a murder trial, the prosecution offers a formal stationhouse statement by a now-unavailable witness who was never cross-examined. Admitting the statement most likely violates:

Answer: The Confrontation Clause, because the statement is testimonial

Under Crawford, testimonial statements of an unavailable declarant are inadmissible against a criminal defendant absent a prior opportunity for cross-examination.

In Michigan, which allowance has first priority and is exempt from all claims against the estate?

Answer: The homestead allowance

The homestead allowance (MCL 700.2402) is exempt from and has priority over all claims against the estate.