February 1997 - Vermont Bar Examination Essay Questions

[Question I]
[Question II]
[Question III]
[Question IV]
[Question V]
[Question VI]


QUESTION I - FEBRUARY 1997

     Sam Iam was a successful businessman.  When he died on Friday, July 12,
1996, he left an estate of over five million dollars.

     Sam was married to Ann in 1970.  The couple had two children.  Bob was
born in 1976, and Charlie was born in 1982.

     By 1985, Sam's marriage had deteriorated, and he left the family home. 
He met  Dorothy in 1988 and lived with her until his death.  Neither Ann nor
Sam bothered to file for divorce until late 1995.  The divorce was resolved
on an amicable basis, and a divorce decree was issued on July 5, 1996.  The
nisi period was due to expire on October 3, 1996.

     Sam's first will was executed in the office of his attorney, Evan
Elliott, on April 1, 1980.  The witnesses included Attorney Elliott, his
daughter Flora, and Attorney Elliott's secretary, Ginger.  In the will, Sam
left "$50,000 to my son Bob."  He left "one million dollars to my wife."  He
also made a specific bequest of "my 42 foot sailboat Irene to my attorney and
best friend, Evan Elliott."  Finally, Sam left the "rest, residue and
remainder of my estate to the Foundation for Improved Business Techniques." 
At the time of his death, however, no such foundation was in existence. 
Further, there is no evidence that a foundation by this name was ever in
operation.

     Two weeks before he died, Sam traded his sailboat for a Morgan horse,
named Major.

     You served as Sam's divorce attorney.  The day of his divorce hearing,
July 5, 1996, Sam asked you to draft another will leaving everything to
Dorothy.  When he came to your office a week later to review and execute the
new will, the following dialog occurred:

     You: Have you read the document I have placed before you?
     Sam: Yes.
     You: Do you understand the terms of the document?
     Sam: Yes.
     You: Do you declare this document to be your last will and testament?
     Sam: Yes.
     You: Do you want the three of us to serve as witnesses to the signing of
          your last will and testament?
     Sam: Yes.

     After this exchange, Sam picked up a pen and bent over the will to sign
his name.  You and the other two witnesses saw the pen make contact with the
paper, but this was immediately followed by an agonized groan as Sam slumped
to the floor.  After hurriedly signing the will as witnesses, the three of
you administered CPR, but Sam died of a heart attack later that evening.


     1.  What are the arguments that can be made regarding the validity of
         each will?

     2.  Discuss the disposition of Sam's property under each will.


Model Answers
QUESTION II - FEBRUARY 1997 You are asked to assist one of the partners in your firm with a case that is scheduled for trial in a few weeks. You are advised of the following facts and asked to research any evidentiary issues that may come up during trial. On June 4, 1995, Peter Smith was driving east on Railway Street, a city road in Whoville, Vermont. It was approximately 6:00 a.m., and Peter Smith had just left a friend's house, where he had spent the weekend. He was not familiar with the area, since he lived in Massachusetts. He approached a 4-way intersection with Park Lane; there was no stop sign in his direction, and he drove through it without slowing down. Coming from the south on Park Lane was another car containing your client, Paul Hines, and his wife, Mary. There was no stop sign or traffic control signal on Park Lane, either. The Hineses were long-time residents of Whoville. They were not anticipating many cars on the road at this time of morning, and they did not slow down as they approached the intersection. They struck Peter Smith's car, causing his car to hit an oncoming truck in the westbound lane of Railway Street. A copy of the diagram from Paul Hines' accident report is set out below. Peter Smith filed a suit against your client, Paul Hines, for the personal injuries and damage to his car suffered as a result of the accident. The City of Whoville was also named as a defendant in the action. During a deposition of Mary Hines, she testified that, as they approached the intersection, Mrs. Hines told her husband, "Slow down! Don't you remember what happened to my dad?!" In his deposition, Paul Hines stated that he could not remember hearing Mary make this statement. He also stated that he felt either party at the intersection had an equal right-of-way. Mary's father also lived in the City of Whoville, and he had had a similar accident at that intersection five years prior. Paul Hines had actually been a witness to that accident, and he had testified at his father-in-law's trial. Mary's father had been traveling in the same east-west direction on Railway Street as Peter Smith. You and the partners in your firm have obtained a copy of your client's, Paul Hines', testimony from that trial. At that trial, Paul stated that his father-in-law had not been at fault since the common practice in the City has always been that the east-west traffic in Railway Street has the right-of-way; Paul explained that because Railway Street is a larger and busier street, cars traveling north and south on Park Lane always stop at the intersection and give way to the traffic on Railway Street. Two weeks before the trial, your client, Paul Hines, has a severe stroke. He loses his speech, and his doctors tell you that he will be hospitalized for at least a month. The trial judge refuses to continue the trial. A second, follow-up deposition of Mary Hines is taken by Plaintiff's counsel just prior to trial. In the deposition, Mary Hines states that Paul was under great stress because of the lawsuit. Over your law firm's objection, she also testifies that, just a few days before the stroke, Paul told Mary and her father, at the dinner table, that he felt terrible about the accident and that he knew it had been his fault. The City of Whoville is also a defendant in this action. You are told that in September 1995, the City installed stop signs at the intersection where this accident ocurred. They are placed on Park Lane, in the north/south direction. Your office has had photos of the new stop signs taken, and copies have been provided to the City's counsel through discovery. Your office also has obtained copies of five previous motor vehicle accident reports issued by the City of Whoville Police Department, all regarding accidents that occurred at the same intersection within two years prior to June 4, 1995. All of those accident cases were settled out-of-court without any lawsuits being filed. As defense attorney for Paul Hines, identify and analyze the evidentiary issues on behalf of your client. Explain how the court is likely to rule on each issue. || || N || Park || | || Lane || | || || || || || || ================== ==================== ======== ======== |Smith | |Truck | ======== ======== Railway St. ================ ^ ================== || | || || | || || ======= || || |Hines| || || ======= || || ||
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QUESTION III - FEBRUARY 1997 Tom and Jane Goodlife became tired of the hustle and bustle of urban life and decided to pursue their dream of owning and operating an inn in rural Vermont. After several months of searching, they found the perfect location and negotiated with the sellers to purchase an ongoing inn business. Adjacent to the property was a fifty acre parcel which Tom and Jane hoped to also purchase within a year and convert to a cross country ski operation. Tom and Jane have a friend from Canada, Robert Tent Eagle, who is known in the industry for designing cross country ski areas which can be used in the summer for other purposes such as golfing or camping. Tom and Jane know they will need additional funds to set up the golf and ski operation and hope to persuade Mr. Eagle to invest in their project at the time they purchase the adjacent parcel. They do not, however, want to give Mr. Eagle voting rights or control of the business. The Goodlifes have $50,000 of their own cash and will need to borrow $300,000 in order to purchase the inn property. 1. Tom and Jane come to visit you at the onset of their business venture. They ask you to advise them which form of business entity would be most appropriate for their plans, including their intent to purchase the adjacent property in the future. What would you advise, giving an analysis of the various business forms available to them? 2. Assume for this question that Tom and Jane intend to purchase the inn property in their own names and lease the property to their business entity for the operation of the inn. Identify the loan documents that, at a minimum, a prudent lender would require to secure financing of the real and personal property in the amount of $300,000. Depending on the business entity chosen, who would the lender require to execute the loan documents? Several months later Tom and Jane find themselves working what seems like 26 hour days in the hustle and bustle of running an inn in rural Vermont. A winter of no snow has left them well below their projected returns and they have fallen behind in their payments to the bank. To compound matters, Connie Careful, a guest staying at the inn, has injured herself on the front steps which had not been cleared of ice from the storm of the day before. Tom and Jane have had it with the inn business and are looking forward to their return to the city. 3. Assume the business defaults on its loan obligations to the lender. What remedies are available to the lender and who would the lender look to depending on the type of entity Tom and Jane chose? 4. Depending on the entity chosen, who may be liable to Connie Careful?
Model Answers
QUESTION IV - FEBRUARY 1997 After experiencing frustration at the lack of available air time at the already overcrowded AirLease Corporation located in Fair Skies, Vermont, four friends - Fred, Frank, Fran and Flora, started their own flying club which they called The Flying Aces. The four scraped up all their extra money and came up with $1,000 to be used as a downpayment for the purchase of a used aircraft. As luck would have it, when Fran and Flora were on their way to the bank with the $1,000, Fran spotted an old Cessna airplane and inquired about its availability. The plane had been stored for some time in an historic barn which was now slated for immediate restoration. The plane's owner, Amelia Airhart, was in a hurry to sell and named $14,000 as a price she would take for the plane. After hearing Amelia describe how airworthy the plane was, Fran was jubilant; she was sure she could convince Frank and Fred that this plane was perfect for The Flying Aces. Amelia and Fran sealed the deal with a handshake; Flora clapped her hands and shouted out, "Hooray." Amelia told Fran and Flora they needed to pick up the plane immediately. Fran gave Amelia the $1,000 she was carrying as a gesture of good faith and promised to send Amelia an agreement that would capture their mutual understanding regarding a payment schedule. Despite Fran's good intentions, she didn't get around to putting the details on paper. Fran had hesitated in part because she and Flora had recalled the conversation somewhat differently. Fran did arrange for insurance on the airplane in the amount of the purchase price with The Flying Aces named as the owner. The Flying Aces located an available hangar adjacent to the Fair Skies airstrip and entered into a one-year lease for $1,200 or $100 per month with Happy Hangars, Inc. The first lease payment was due at the end of the month. Fred had been shopping for a small tractor which he intended to use in his farming operation which was also located in Fair Skies. He offered The Aces occasional use of the tractor in order to tow the plane from the hangar to the field. The Aces were happy with the proposed arrangement. Fred went ahead and purchased the tractor for $3,200 from Farmers Supply. Since he didn't have much extra money, he paid $200 as a downpayment, and offered the Cessna as collateral. Fred and Farmers Supply executed a purchase agreement for the balance due. Fred called the insurance company and had Farmers Supply listed on the policy as a secured creditor in the plane. Farmers Supply properly perfected their security interest. Fred used the tractor to tow the Cessna from Amelia's barn to the hangar. During the plane's first flight, tragedy struck. Frank was piloting the plane when the engine caught on fire and the plane plummeted to the earth. Frank was killed on impact. The cause of the disaster was later traced to hay that was found in the engine. The remaining three Aces were heartsick. They scarcely noticed that Frank had named The Flying Aces as his sole beneficiary on a $5,000 life insurance policy. The Club also received $14,000 from the insurance company for the loss of the plane. Fred has used the $3,500, his share of the insurance proceeds from the airplane loss, to purchase watering troughs and to replace the old fencing he had used to keep his sheep in their pasture. With the remaining insurance proceeds, approximately $750, he bought a saddle for his riding horse. In the meantime, Fred has suffered serious losses on his farm from a pest infestation that has decimated his crops. He used his credit card to buy a number of expensive organic pest control remedies, but the products were virtually useless. Now Fred has a meager harvest and a large debt on his credit card. He doesn't know if it is worth putting up the farmstand sign, which in past years he has erected next to his home, a cabin which he had built in more carefree days. He is happy his aging Subaru doesn't require much maintenance. He still owes Farmers Supply the $3,000 for the tractor. The club has defaulted on its lease with Happy Hangars. In addition, the club agreed, in a moment of emotional distress, to cover Frank's $6,000 funeral expenses. After several months go by, Amelia contacts Fran who tells Amelia about the accident, Frank's death, and the destruction of the plane. She explains that she just doesn't know when or how Amelia will get paid the money owed to her. 1. Amelia comes to you for advice regarding how she will get her money for the plane. Who should you tell Amelia to sue and why? What theories should Amelia rely on? Discuss how successful Amelia is likely to be. 2. Imagine that Fred comes to you for legal advice instead of Amelia. He is afraid Amelia, Happy Hangars, Farmers Supply, and his credit card company will sue him and he will lose his farm. How would you advise him? Is bankruptcy an option? Assuming it is, explain how the Code will apply to Fred's situation. How will this affect Amelia's legal avenues? Please ignore issues of tort law.
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QUESTION V - FEBRUARY 1997 Jill comes to your office. She advises you that she and Jack have been married for ten years. They have two children, ages 6 and 8. Jill does not work outside the home, but Jack has been employed by a local college as a professor for 15 years. They have been having marital difficulties for about three years. Over the course of the marriage, John has been verbally abusive to her and the children and has, on occasion, pushed her, and he has thrown objects at her during their arguments. Jill explains to you that four days earlier she and Jack had a terrible fight, and she told him to leave the house they own. Jack refused and hit her several times. She shows you some bruises on the left side of her face and a small cut on her forehead, which she indicates is from falling against a counter after being hit. As Jack was sleeping later that night, Jill and the two children left the house. They went to a friend's house and have been staying there. Two nights ago Jack found out where Jill and the children were staying, and he came over and began pounding on the door. After a while he went away, but everyone in the house was afraid he would return. As a result, the friend's children are very upset. Jill feels they can no longer stay at the friend's home. Yesterday Jill went home to collect some of her things. As she was leaving she ran into Jack who refused to allow her to take any clothing from the house. A fight ensued on the front lawn which was seen by a neighbor who called the police. Once again, Jack hit Jill several times. When the police arrived, they ended up arresting Jack for domestic assault. The police said he would be arraigned and likely would be released on conditions. Jill understands that he is not in jail. Jill didn't understand what the police were talking about when they said "arraigned" or "released on conditions," and she was too upset at the time to ask questions. The police also gave her the phone number of the local battered women's agency and told her that this organization could help her. Jill tells you that she hasn't called the agency because she is too embarrassed and doesn't believe they can do anything which would stop Jack from continuing to harm her. Jill also tells you she is relatively certain she would like to get a divorce, but she would like some time to think about it. In the meantime, however, she says that she would very much like to get back into the house, but she's sure Jack won't move out. Jill says that she feels she and the children can't stay at the friend's house anymore, and she has no idea where they can stay tonight. Jill indicates that she does not have a lot of money because all of the money is in Jack's bank account, and she does not have access to it. She tells you that although John earns a salary of $75,000, she is sure he won't pay her anything even if he's ordered to do so by the court and, even if he pays for a short period of time, he won't continue to make payments over the long term. Jill also does not want Jack to see or have contact with the children because they are afraid of him. 1. Please advise her what options she has under family law, both short and long-term. 2. She also wants you to explain to her what it means to be arrested, arraigned and released on conditions and what each involves. 3. What protections do the criminal remedies provide and what are the drawbacks of relying solely on that process?
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QUESTION VI - FEBRUARY 1997 Memo to New Associate From Senior Partner Facts: Last week clients A, B and C--two women and a man--went to the local county courthouse. Upon entering the building, they waited in line to go through the metal detector set up on the side of the entry hall. While waiting, they noticed that most, but not all, people went through the metal detector, and that about half were asked by the sheriff on duty to show an identification card, and to record their names and the purpose of their visit. When A, B and C reached the head of the line, they noticed a placard stating: "All persons entering these premises shall show the law enforcement officer on duty a government-issued identification card, and shall record their names and purpose for being here. This policy shall not apply to judges, court personnel and state prosecutors." A, B and C are members of the religious sect in the next town. At the time, they were wearing the headscarves, black hat and long black coats worn by members of that group. The sheriff on duty that day is married to A's sister, but the sheriff has refused to associate with A since A joined the religious sect. A, B and C could not produce any identification because it is against their religion to obtain or carry government-issued identification cards. B and C offered to go through the metal detector, but A refused because she is pregnant. A, B and C were denied entry into the building. After calls to various court clerks, I have found out that several state courts have similar practices, but none of them is identical to ours or to each other. Local attorneys and others tell me that persons known to the sheriff on duty at the time of entry generally do not have to show identification, even when the court is hearing high profile cases. Our clients (along with hundreds of other people) want to be able to get into the courthouse to observe the notorious gang shooting/murder case that is going on there right now. Draft an analysis of the issues our clients' case raises, indicating their best arguments, the arguments we are likely to have to meet, and the likely outcome of each issue.
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