Florida Bar Exam Questions and Answers (Latest Update 2024) pass Guaranteed, Exams of Constitutional Law

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If the defendant is in custody for any offense, the determination of whether probable cause exists must be made: - Correct Answer ✅within 48 hours of arrest. The state is permitted to two 24-hour extensions, for good cause. (total maximum of 96 hours) The trustees of a business trust are usually held personally liable to trust creditors. - Correct Answer ✅However, contractual exculpatory clauses negating the trustees' personal 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. All partners are jointly and severally liable for all obligations of the partnership, whether the obligations arise in contract or tort. Thus, an action may be brought against one or more of the partners or the

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partnership. A judgment against a partnership, however, is not itself a judgment against a partner. - Correct Answer ✅A judgment is not personally

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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. Florida requires that two standards be passed in order for a payment of dividends to be proper: - Correct Answer ✅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) 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. - Correct Answer ✅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.

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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. - Correct Answer ✅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. Florida is one of many states that permit a will to be made self-proved at the time it is executed. - Correct Answer ✅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

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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

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will is executed, eliminating the need to track down the witnesses and arrange for their testimony in probate court after the testator's death. A will drafted in a foreign language will: - Correct Answer ✅be accepted as long as an English translation is provided for the court. 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. - Correct Answer ✅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. Additional general partners can be admitted as provided in writing in the partnership agreement or, - Correct Answer ✅if the partnership agreement does not provide in

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writing for

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the admission of additional general partners, with the written consent of all partners. Where a proposed amendment to the articles of incorporation would adversely affect the rights of a class of shareholders, - Correct Answer ✅those shareholders are entitled to vote as a group on the amendment even if they belong to a nonvoting class. Florida and federal banks, savings and loans, and other trust companies authorized to exercise fiduciary powers may serve as personal representatives in Florida. If the decedent left a will, the order of preference for appointment as personal representative is: - Correct Answer ✅(i) the person nominated in the will; (ii) the person selected by a majority in interest of the persons entitled to the estate; and (iii) a devisee under the will. When a decedent is not survived by minor children and the surviving spouse has waived homestead rights, there is no constitutional restriction on devising homestead property. - Correct Answer ✅The homestead exemption from forced

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sale by creditors in article X, section 4, inures to the surviving spouse or heirs of the owner. This provision allows a testator with no surviving spouse or minor children to choose to pass by will the homestead property with its accompanying protection from creditors to any family member within the class of persons categorized in the intestacy statute. How many peremptory challenges does each side get for capital or life felonies? - Correct Answer ✅10. A will may be revoked by canceling, defacing, or obliterating it with the intent, and for the purpose, of revocation. - Correct Answer ✅The intention to revoke must be present at the time of the physical act for revocation to be effective. In Florida, the attorney owes a duty, not only to the client who contracted for his services, but also to the beneficiaries named in the will. - Correct Answer ✅Thus, the beneficiaries can sue the attorney for negligence in the preparation of the will.

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Generally, all persons held in custody are entitled to pretrial release on reasonable conditions. - Correct Answer ✅However, an accused may be detained pending trial if no condition of release can adequately protect the community from the risk of harm to any person. The Florida statute provides a broad grant of authority to the personal representative to perform many transactions without court order. In the vast majority of cases, if a fee simple owner may do it, a personal representative may do it without a court order. - Correct Answer ✅However, there are some exceptions. If the will does not grant a power of sale, any sale of real property must be authorized or confirmed by the court. The power of a personal representative to continue the decedent's unincorporated business without court order is limited to a period of four months from the date of his appointment; after that period, the personal representative must get approval of the circuit court.

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Under Florida law, a corporation incorporated in another state, but doing business in Florida must: - Correct Answer ✅obtain a certificate of authority to transact business within

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the state and must file an annual report with the Department of State. In addition, a foreign corporation doing business in Florida must maintain a registered office and agent in the state. Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator's intent if it is proved by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator's original intent, the court may consider evidence relevant to the testator's intent even though the evidence contradicts an apparent plain meaning of the will. - Correct Answer ✅A latent ambiguity exists when the language of the will, although clear on its face in describing a beneficiary or property, results in a misdescription when applied to the facts to which it refers. Extrinsic evidence is admissible to cure the latent ambiguity. Extrinsic evidence may be admissible to show that a provision was mistakenly omitted from a will, or that a provision contained in the will is not what the testator intended. If the alleged mistake

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involves the reasons that led the testator to make the will, relief may be granted if there is

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clear and convincing evidence that the accomplishment of the testator's intent and the terms of the will were affected. An incoming partner is liable for all obligations of the partnership including those incurred before becoming a member of the partnership. - Correct Answer ✅However, that liability is not personal unless the incoming partner subjects himself to personal liability by novation or by a promise to pay the existing debt. A disclaimer in interest to an estate must be in writing, signed, witnessed, and acknowledged in the manner provided for the conveyance of real property. Then the disclaimer is filed with the clerk of court. - Correct Answer ✅A disclaimer filed under the statute is irrevocable, and is effective on the date it is filed. In Florida, the right to disclaim will be barred if the beneficiary is insolvent at the time of the event giving rise to the right to disclaim. A copy of the disclaimer instrument must be delivered to the personal representative, trustee, or other person having title to or possession of the disclaimed interest.

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A disclaimed interest passes as though the disclaiming party predeceased the decedent. - Correct Answer ✅Thus, it passes to children, per stirpes. Circuit courts have jurisdiction over disputes seeking more than $15,000, excluding interest and costs. - Correct Answer ✅In a class action, the claims of the class members may be aggregated to meet the jurisdictional amount. A contract reformation is an action of equity which is within the circuit court's jurisdiction. Punitive damages are included when computing the jurisdictional amount. While the prosecution may agree not to seek a departure from the recommended sentence, this does not preclude the judge from using discretion and following sentencing guidelines. - Correct Answer ✅The court may consider the defendant's criminal history, the finite sources of the prison system, and the scoring system of the Criminal Punishment Code worksheet that is used to compute sentencing in Florida. The state attorney's office prepares the worksheet,

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and the worksheet must be presented to defense counsel to review for accuracy.

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Under Florida law, the revocation of a will revokes all codicils to that will. However, if the grantor mistakenly believed that by revoking a will, she could revive a previous will, the court would probably employ the doctrine of dependent relative revocation to save the devisee. - Correct Answer ✅Doctrine of relative revocation makes a revocation of a former will ineffective if the testator made the revocation through execution of a new will, and that newly executed will is determined invalid. To establish undue influence, it must be established that: - Correct Answer ✅(i) influence was exerted against grantor; (ii) the effect of the influence was to overpower grantor's mind and free agency; and (iii) the product was a will that would not have been executed but for the undue influence. An advancement is a gift made to a next of kin with the intent that the gift be applied against any share that the next of kin inherits from the donor's estate. In Florida, no gift is to be considered an advancement unless the intention to have it so treated is declared in a

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contemporaneous writing by the decedent or acknowledged in writing as such by the heir. - Correct Answer ✅The value of the advancement is

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determined as of the time the gift was made, and any fluctuations in the value of the advanced property will not affect the position of the next of kin. Generally, an advancement made to a next of kin is binding on those who succeed to the estate of the next of kin who received the advance if he predeceases the donor. In Florida, however, an advancement is not binding on a predeceased heir's successors unless the writing or acknowledgement required by statute specifically provides otherwise. The state has 30 days to file a charging document when an accused is detained before trial, or else he will be released on the 33rd day. - Correct Answer ✅Only persons in custody who are accused of a felony may move for an adversarial preliminary hearing if a charging document is not filed within 21 days. A misdemeanor may be charged by: - Correct Answer ✅information, docket entry, notice to appear, affidavit, or indictment.

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Which of the following sanctions may be imposed against a corporation for failure to file an annual report with the department of state? - Correct Answer ✅Involuntary dissolution and barred from bringing or defending any action in Florida courts. To gain jurisdiction of a partnership, service need only be made on one of the general partners. To gain jurisdiction of each individual partner, each partner must be named and served. - Correct Answer ✅Failure to name and serve a partner will make his individual assets unavailable for satisfaction of the judgment. Under the Simultaneous Death Act, when the title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person is disposed of as if he had survived. - Correct Answer ✅In other words, the property passes as though the beneficiary or heir predeceased the other decedent. The Act applies to distributions of property by any means, including will or life insurance contract. If one has no lineal descendant,

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surviving parents, brothers or sisters and descendants of brothers or

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sisters, surviving grandparents or descendants of surviving grandparents, his estate would pass to the kindred of the last deceased spouse. A shareholder will have preemptive rights based on the fact that the articles establish such rights. - Correct Answer ✅Stock in exchange for property does not fall within a category to which preemptive rights are applicable. The criteria for incorporation of an instrument into a will by reference are: - Correct Answer ✅(i) document is in existence when will is executed; (ii) will's text reasonably identifies the instrument; and (iii) reference shows testator's intention to incorporate document into will. An indigent defendant charged with a misdemeanor or ordinance violation punishable by imprisonment is entitled to appointed counsel, unless the court enters a written order that there will be no imprisonment is entered. - Correct Answer ✅A waiver of counsel must be in writing and attested to by two witnesses, or made in court on the record

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after a thorough inquiry to determine that the waiver is made knowingly, voluntarily, and intelligently. What is required before any plea of guilty or no contest may be accepted by the court? - Correct Answer ✅A determination that the plea is voluntary with a full understanding of his rights, and that there was a factual basis for the plea AND a statement under oath that he was pleading guilty because he was in fact guilty, or because it was in his best interest. A partner's death causes a dissociation, but after dissociation, a partner or his estate can still be bound on partnership contracts made for up to one year after the dissociation unless: - Correct Answer ✅the third party with whom the partnership dealt knew, or had notice of, the dissociation. A defendant may file a motion anytime after the complaint is filed. - Correct Answer ✅A defendant need not wait 10 days to serve a MSJ.

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Florida rules require that opposing affidavits be served no later than: - Correct Answer ✅5 p.m. at least two business days before the hearing if personally delivered to the movant's attorney. If delivery is by mail, five days are necessary. If a will beneficiary dies during the testator's lifetime, the gift lapses. Florida has an anti-lapse statute that operates to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator and left descendants who survived the testator. In such a case, the beneficiary's descendants take by substitution under the anti-lapse statute. - Correct Answer ✅In Florida, the scope of the anti- lapse statute is the same as under the statute governing inheritance. The anti-lapse statute covers predeceasing beneficiaries under wills and testamentary trusts who were grandparents or descendants of grandparents. Despite a will specifically disinheriting all heirs, estate still passes to heirs by intestate succession under Florida law. In the absence of any provision in the articles setting forth preemptive rights, shareholders have no

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preemptive rights. - Correct Answer ✅The articles of incorporation may set forth