Week2 mid

Intestate Succession and Elective Share

Intestate succession is the process courts follow to determine how a decedent’s estate should be distributed when a person dies without a valid will. These laws are set by states, so they can and do vary. Elective shares are amounts that certain people (surviving spouses, minor children, etc.) can elect to take from an estate even if not provided for in the decedent’s will. How these decisions and elections are made are what you will be addressing this week. Why do different states have different rules? Should we have a nationwide standard?

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Research both the intestate succession laws and elective share in your own state. Prepare a memorandum that outlines your state’s statutes on intestate succession. Use the following sources to begin your search: FindLaw, Lexis Advance, or your state’s government website.

 For more information on writing a memorandum, click 

here

 to download and review a recommended source.

Five Style Rules for a Brief
1. Avoid alphabet soup. The alphabetical short

forms for the names of the parties, statutes and
agencies become meaningless. Use the persuasive
force of words.

2. Use the parties’ names. Don’t refer to the parties
by their status (e.g., “the defendant”) unless
court rules require otherwise.

3. Rarely use block quotations. Try to fi nd pertinent
quotations of fewer than 50 words.

4. Use argumentative headings. For example,
instead of “The Relevant Provisions of the
FFDCA,” state “This Court Should Grant
Summary Judgment Because There Is No Private
Right of Action Under the Federal Food, Drug
and Cosmetic Act.”

5. Keep the brief as short as possible.

Five Style Rules for a Memo
1. Clearly and concisely state the facts in short,

simple sentences.
2. Identify and defi ne the legal issues in the case.
3. Research, select and read the cases and statutory

authority relevant to the facts and legal issues.
4. Apply the law to the facts.
5. Organize your analysis of the law and the facts.

To write a persuasive brief or an effective memo:

• Clearly and succinctly state the issues;

• Proofread the entire paper several times—no errors in
grammar, punctuation or spelling; and

• Make sure all citations are accurate and in the correct form.

Legal Writing Basics:
Tips for Writing Briefs and Memos

At A Glance

Hermann’s Rules of Style

1. Write short sentences.

2. Place only two or three paragraphs on a
typed page.

3. Use the active voice.

4. Always use an action verb rather than the
“to be” verb and an adjective.

5. Start each paragraph with a topic sentence.

6. Use headings and sub-headings to break up
the brief or memo.

7. Given a choice, use the word “that” instead
of the word “which.”

8. Do not start a sentence with the word
“However.”

9. Do not use the phrase “In order to.”
Instead, use “To.”

10. Read the fi nal work with an eye toward
fi nding and correcting each of the nine errors
listed above.

Information extracted from How to Write: A Memorandum
from a Curmudgeon by Mark Hermann, © 1997, American
Bar Association Litigation, Fall, 1997, 24 Litigation 3

At-A-Glance

U.S. Supreme Court appellate briefs on
LexisNexis at www.lexis.com
Go online and look at some of the U.S. Supreme Court
appellate briefs to get an idea about structure, tone and
length of a brief.

To access this source:
1. Sign on www.lexis.com
2. Click Legal > Cases – U.S. > US Supreme Court Briefs
3. Type your search terms in the open fi eld of the Search

Terms template.
4. Click Search.

• Lexis® Search Advisor
will fi nd cases and secondary sources that are
pertinent to your legal issues.

• LexisNexis® Case Summaries
provide concise, targeted synopses of cases,
with each case summary containing:

— Procedural Posture that describes the case’s
procedural history, i.e., how the case arrived
before the court.

— Overview provides a brief review of the
court’s holding on the legal issues raised.

— Outcome reviews the procedural disposition
of the case.

• LexisNexis® Core Terms
list the terms and concepts that are integral to

this case.

• LexisNexis® Headnotes
are the key legal points of a case, selected by a

team of legal editors, and drawn directly from
the language of the court. LexisNexis Headnotes
let you link to Lexis Search Advisor for a more
in-depth search on your topic.

• The FOCUSTM feature
lets you search for specifi c terms or phrases within

a case.

• More Like This and More Like Selected Text
help you fi nd cases similar to a case you can use to

support a point of law.

• Shepard’s ® Citations Service
is needed for the full range of editorial analysis and
history needed to verify the status of a case.

• CheckCite® v. 8.7
Use CheckCite v. 8.7 software to automatically
get, Shepardize ®, or print cases from your
word-processing documents. Updating is fast and
easy with CheckCite as you verify the accuracy of
your work, pinpoint the right facts, and save valuable
research time.

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call LexisNexis Customer Support:

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Write a more effective
appellate brief or memo
using the LexisNexis® services

An appellate brief should contain:

Donald J. Willy, Petitioner, v. The Coastal Corporation, et al., Respondents.
No. 90-1150

1990 U.S. Briefs 1150
October Term, 1991

July 30, 1991

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit
Brief for Petitioner Donald J. Willy

Michael A. Maness, Counsel of Record for Petitioner, 1900 North Loop West, Suite 500, Houston,
Texas 77018, (713) 680-9922, (713) 680-0804 (FAX)

Did the district court violate Article III § 2 of the Constitution by awarding attorney’s fees,
claimed by defendants who wrongly invoked subject-matter jurisdiction by mistakenly removing the
case from a state court, as a sanction for asserted bad-faith litigation by the plaintiff, who correctly
resisted the unconstitutional exercise of federal judicial power, and who did not impede, obstruct, or
delay resolution of any jurisdictional issue?

Petitioner Donald J. Willy was the plaintiff in the district court and the appellant in the court of
appeals.
Respondents in this Court are the coastal corporation, Coastal States Management Company,
Inc., James R. Paul, George L. Brundrett, Charles F. Joens, William L. Dunker,
and E.C. (Bud) Simpson.

(optional depending on length)

Cases:
Aetna Life Insurance Co. v. Hawaorth, 300 U.S. 227 (1937)
Aldinger v. Howard, 427 U.S. 1 (1976)
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975)
American Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951)
Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936)
Bender v. Williamsport Area School District, 475 U.S. 534 (1986)
Blacklock v. Small, 127 U.S. 96 (1888)
Ex parte Burr, 9 Wheat. 529 (1824)

The relevant provisions of Article III of the Constitution of the United States, Title 28
of the United States Code, and F.R. Civ. P. 11 are reproduced in the appendix to the petition for
certiorari, beginning on page 57.

Donald J. Willy worked as an in-house environmental attorney for the Coastal Corporation in
Houston from 1981 until 1984, when he was fi red … None of Willy’s claims arose under or was
created by a federal statute, and he did not allege entitlement to any federal remedy … (text omitted
due to length)

1. Article III of the Constitution limits the judicial power of the United States to cases
and controversies over which Congress has conferred subject-matter jurisdiction
(text omitted due to length)

The district court violated Article III § 2 of the Constitution by awarding attorney’s fees,
claimed by defendants who wrongly invoked subject-matter jurisdiction by mistakenly removing the
case from a state court, as a sanction for asserted bad-faith litigation by the plaintiff, who correctly
resisted the constitutional exercise of federal judicial power, and who did not impede, obstruct, or
delay resolution of any jurisdictional issue. . . .
(text omitted due to length)

The district court’s sanctions order, and the judgment of the court of appeals affi rming it, are
unconstitutional and should be reversed.

Respectfully submitted,

Michael A. Maness, Counsel of Record for Petitioner, 1900 North Loop West, Suite 500, Houston,
Texas 77018, (713) 680-9922, (713) 680-0804 (FAX)

July 1991

Cover Page

Questions
Presented

List of
all Parties

Table of Contents
Table of
Authorities

Constitutional
Provisions

Statement of
the Case

Summary of
the

Argument

Argument

Conclusion

An open memo should contain:
Smith v. Jones

Supreme Court, Ames County
Abner Price, J.

Date: April 15, 2000
To: Norman White
From: Wesley Black
Re: Appeal from lower court judgment against our client Jones

Question Presented:
You have inquired: Did a mutual mistake about the character of a parcel of land entitle our client to recover his
deposit and avoid performance of a fully-integrated purchase contract that did not disclose the mistake on its face?

Facts:
Jones contracted with Smith to purchase a parcel of land in the Borough of Lafayette, County of Ames … (text
omitted due to length) … There is no evidence that Smith knew of the unique character of this small tract. Jones
demanded the return of his deposit and refused to close. Smith brought this action for specifi c performance and
Jones claimed the return of his deposit.

Lower Court:
Plaintiff Smith moved for summary judgment, relying in his supporting affi davit only on the contract of sale. Smith
argued that the contract was fully integrated … (text omitted due to length) … The court granted Smith’s motion.
In its opinion, the court reached two conclusions:

1. Evidence as to any correspondence or negotiations between the parties prior to the contract was barred by
the parol evidence rule.

2. The mistake between the parties, if any, did not relate to the quality of the land, but only to its value, as to
which both parties took the risk.

Cases and Authorities:
The parol evidence rule and mutual mistake:
UCC § 2-202 (statement of rule)
Restatement of Contracts Second § 214, Comment c. Invalidating Cause; Comment d. Remedies, Illustration 7
Farnsworth, Contracts, Third Edition 1999, § 7.4, p. 442
Murray on Contracts, Third Edition 1990, § 85, p. 400
Edwards v. Trinity & Brazos Valley Ry., 118 S.W. 572 (Tex. 1909)
Mutual Mistake as to Basic Assumption in Contract:
Restatement of Contracts Second § 152, Comment b, Basic Assumption, Illustration 6
Farnsworth, Contracts, Third Edition 1999 § 9.3, pp. 624-630
Murray on Contracts, Third Edition, 1990, § 91D.1., 2., pp. 444-47
Dover Pool & Racquet Club v. Brooking, 322 N.E. 2d 168 (Mass. 1975)
Sherwood v. Walker, 33 N.W. 919 (Mich. 1887)
Wood v. Boynton, 25 N.W. 42 (Wis. 1885)
Smith v. Zimbalist, 38 P.2d 170 (Cal. 1934)

Discussion:
1. Jones is entitled to void the land contract because of the mutual mistake of the parties … (text omitted due
to length). A contract is voidable “where a mistake of both parties as to a basic assumption on which the contract
was made has a material affect on the agreed exchange of performance …” Restatement Second § 152(1).
2. Parol evidence rule does not bar evidence of mutual mistake by the parties as to a basic assumption that

induced the contract … (text omitted due to length).

Conclusion:
1. The contract between Jones and Smith is voidable by Jones because of the mutual mistake of the parties as

to a basic quality of the land involved; i.e., that it could be mined for methane gas in the same way as the land
around it.

2. Evidence as to the mutual mistake is not barred by the parol evidence rule because the mistake is as to a basic
assumption on which the contract was made.

3. Summary judgment for Smith should be reversed and a trial ordered to permit Jones to present evidence of the
prior correspondence and negotiations between the parties and of the fi ndings and conclusions
of the geologist.

Heading or
Caption

Identify Yourself
and Partner
Addressed

Defi ne Issues

Give Procedural
History

List Cases
and Authorities

Relate the
Facts to the Law

State Your
Conclusions and
Recommendations

State the
Facts Requiring
Analysis

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their respective companies. © 2005 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. LO12869-2 0205

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