Florida Bar Exam
1. If the defendant is in custody for any offense, the determination of whether
probable cause exists must be made Ans: within 48 hours of arrest. The state
is permitted to two 24-hour extensions, for good cause. (total maximum of 96
hours)
2. The trustees of a business trust are usually held personally liable to trust
creditors Ans: However, contractual exculpatory clauses negating the trustees'
per- sonal liability and relegating creditors to the trust assets are quite common
and are generally held valid. Even absent such clauses, however, when a trustee
is found liable, she is usually entitled to indemnification from the trust, and
judgment creditors of the trustee may have an equitable derivative right to enforce
the trustee's indemnification rights for their own benefit.
3. All partners are jointly and severally liable for all obligations of the partner-
ship, whether the obligations arise in contract or tort. Thus, an action may be
brought against one or more of the partners or the partnership. A judgment
against a partnership, however, is not itself a judgment against a partner
Ans: A judgment is not personally binding on a partner unless he has been served.
To reach a partner's personal assets, there also must be a judgment against the
partner. It can't be filed against the partnership only.
4. Florida requires that two standards be passed in order for a payment of
dividends to be proper Ans: the equity test and the balance sheet test, allowing
the corporation to pay its debts as they become due and is the amount by which
the total corporate assets exceed the total liabilities. (Income plus capital minus
debts)
,5. If two or more offenses triable in the same court are based on the same
or connected acts or transactions, they may be joined as separate counts in
the same indictment or information Ans: However, if multiple charges are
properly joined, the defendant has a right to severance if he can show that
severance is proper to fairly determine guilty or innocence on each charge or is
necessary for a fair determination on each offense.
6. If a will that was last seen in the testator's will or control cannot be found
after the testator's death, a presumption arises that the will was revoked; i.e.,
the reason the will cannot be located is that the testator destroyed it with
the intent to revoke Ans: To overcome the presumption of revocation, evidence
of a competent and substantial nature is required. If the presumption of revocation
is overcome by proof that the testator did not intend to revoke the will, Florida
permits probate of a lost or destroyed will provided that a strict evidentiary test is
met. The specific content of the will must be proved by the testimony of two
disinterested witnesses, or if a correct copy is provided, it may be proved by one
disinterested witness.
7. Florida is one of many states that permit a will to be made self-proved at the
time it is executed Ans: The testator and the attesting witnesses sign the will, and
then
, sign a sworn affidavit before a notary public reciting that the testator declared to the
witnesses that the instrument was her will, and that the testator and the witnesses
all signed in the presence of each other, present at the same time. The self-proving
affidavit serves the same function as a deposition or interrogatory. It is a method by
which the witnesses' sworn testimony can be secured at the time the will is executed,
eliminating the need to track down the witnesses and arrange for their testimony in
probate court after the testator's death.
8. A will drafted in a foreign language will Ans: be accepted as long as an
English translation is provided for the court.
9. While a formal attestation clause in a will is not required, presence of
such a clause gives rise to a presumption that the will was executed in
conformity with the recitations in the clause Ans: This presumption may be
rebutted by competent testimony of witnesses. Sworn testimony of a subscribing
witness of a will that contradicts the plain language of will's attestation clause may
be sufficient to rebut the presumption that the will was properly executed that
arises by virtue of attestation clause.
10. Additional general partners can be admitted as provided in writing in the
partnership agreement or,: if the partnership agreement does not provide in writing
for the admission of additional general partners, with the written consent of all
partners.
11. Where a proposed amendment to the articles of incorporation would ad-
versely affect the rights of a class of shareholders,: those shareholders are
entitled to vote as a group on the amendment even if they belong to a nonvoting
class.
12. Florida and federal banks, savings and loans, and other trust companies
1. If the defendant is in custody for any offense, the determination of whether
probable cause exists must be made Ans: within 48 hours of arrest. The state
is permitted to two 24-hour extensions, for good cause. (total maximum of 96
hours)
2. The trustees of a business trust are usually held personally liable to trust
creditors Ans: However, contractual exculpatory clauses negating the trustees'
per- sonal liability and relegating creditors to the trust assets are quite common
and are generally held valid. Even absent such clauses, however, when a trustee
is found liable, she is usually entitled to indemnification from the trust, and
judgment creditors of the trustee may have an equitable derivative right to enforce
the trustee's indemnification rights for their own benefit.
3. All partners are jointly and severally liable for all obligations of the partner-
ship, whether the obligations arise in contract or tort. Thus, an action may be
brought against one or more of the partners or the partnership. A judgment
against a partnership, however, is not itself a judgment against a partner
Ans: A judgment is not personally binding on a partner unless he has been served.
To reach a partner's personal assets, there also must be a judgment against the
partner. It can't be filed against the partnership only.
4. Florida requires that two standards be passed in order for a payment of
dividends to be proper Ans: the equity test and the balance sheet test, allowing
the corporation to pay its debts as they become due and is the amount by which
the total corporate assets exceed the total liabilities. (Income plus capital minus
debts)
,5. If two or more offenses triable in the same court are based on the same
or connected acts or transactions, they may be joined as separate counts in
the same indictment or information Ans: However, if multiple charges are
properly joined, the defendant has a right to severance if he can show that
severance is proper to fairly determine guilty or innocence on each charge or is
necessary for a fair determination on each offense.
6. If a will that was last seen in the testator's will or control cannot be found
after the testator's death, a presumption arises that the will was revoked; i.e.,
the reason the will cannot be located is that the testator destroyed it with
the intent to revoke Ans: To overcome the presumption of revocation, evidence
of a competent and substantial nature is required. If the presumption of revocation
is overcome by proof that the testator did not intend to revoke the will, Florida
permits probate of a lost or destroyed will provided that a strict evidentiary test is
met. The specific content of the will must be proved by the testimony of two
disinterested witnesses, or if a correct copy is provided, it may be proved by one
disinterested witness.
7. Florida is one of many states that permit a will to be made self-proved at the
time it is executed Ans: The testator and the attesting witnesses sign the will, and
then
, sign a sworn affidavit before a notary public reciting that the testator declared to the
witnesses that the instrument was her will, and that the testator and the witnesses
all signed in the presence of each other, present at the same time. The self-proving
affidavit serves the same function as a deposition or interrogatory. It is a method by
which the witnesses' sworn testimony can be secured at the time the will is executed,
eliminating the need to track down the witnesses and arrange for their testimony in
probate court after the testator's death.
8. A will drafted in a foreign language will Ans: be accepted as long as an
English translation is provided for the court.
9. While a formal attestation clause in a will is not required, presence of
such a clause gives rise to a presumption that the will was executed in
conformity with the recitations in the clause Ans: This presumption may be
rebutted by competent testimony of witnesses. Sworn testimony of a subscribing
witness of a will that contradicts the plain language of will's attestation clause may
be sufficient to rebut the presumption that the will was properly executed that
arises by virtue of attestation clause.
10. Additional general partners can be admitted as provided in writing in the
partnership agreement or,: if the partnership agreement does not provide in writing
for the admission of additional general partners, with the written consent of all
partners.
11. Where a proposed amendment to the articles of incorporation would ad-
versely affect the rights of a class of shareholders,: those shareholders are
entitled to vote as a group on the amendment even if they belong to a nonvoting
class.
12. Florida and federal banks, savings and loans, and other trust companies
