2015 February California Bar Exam Forum

[Evaly]

On one of my graded essays for Wills, the grader noted that I should go through the prima facie undue influence test not the other ones (common law, statutory). What do you guys think?

There are three tests for undue influence?!? Oh lord

[Elms]

On one of my graded essays for Wills, the grader noted that I should go through the prima facie undue influence test not the other ones (common law, statutory). What do you guys think?

My tutor said the same thing. I guess if you can prove it up under prima facie why bother with the other two. I know Saki said all 3, I think Prof. Sheff said all three but I'm going with the tutors advice unless statutory is applicable based on the facts.

I was thinking of packing wine but now I'm considering tequila.

My thought is... As an attorney, you want to make every argument you can. So you argue the other tests even if YOU think the first test is sufficient. Because, what if the court doesn't agree with you? I plan to argue all three. (Even if the court did not agree that prima facie undue influence applies here, it may still find a presumption of undue influence because...) etc.

Collect those points!

[gaagoots]

On one of my graded essays for Wills, the grader noted that I should go through the prima facie undue influence test not the other ones (common law, statutory). What do you guys think?

My tutor said the same thing. I guess if you can prove it up under prima facie why bother with the other two. I know Saki said all 3, I think Prof. Sheff said all three but I'm going with the tutors advice unless statutory is applicable based on the facts.

I was thinking of packing wine but now I'm considering tequila.

My thought is... As an attorney, you want to make every argument you can. So you argue the other tests even if YOU think the first test is sufficient. Because, what if the court doesn't agree with you? I plan to argue all three. (Even if the court did not agree that prima facie undue influence applies here, it may still find a presumption of undue influence because...) etc.

Collect those points!

You make a good point. If I leave it out and they are worth 5 points that's easier to get then 5 MBE points on a freaking RAP question...or any math mbe question that I just guess.

[cndounda1985]

All of the subjects are running together in my mind lol exhaustion is setting in...sheesh

[a male human]

I dunno but all the sample essays I've seen the writer went through all three kinds, so that's what I was planning on doing.

same. What these essay graders point out in the essay and what consistently get high marks on baressays.com are completely off. I swear I wanted to copy an essay that scored 80+ on baressays word for word and see what the essay grader would've given me.

That's hilarious this question came up - I JUST emailed my tutor about an hour or so ago and asked her what to do because the older answers only address one, but the newer ones seem to analyze under all three approaches. I'll let you know what she says! (Then you all owe me $200).

Does your tutor really charge you $200 to answer a question about an essay? I should get into the tutoring business.

[cndounda1985]

On one of my graded essays for Wills, the grader noted that I should go through the prima facie undue influence test not the other ones (common law, statutory). What do you guys think?

There are three tests for undue influence?!? Oh lord

LOL..only because i'm currently reviewing wills as i type. It's Regular prima facie undue influence, the a different test for undue influence if there's a confidential relationship and then statutory undue influence. I've yet to memorize the statutory one but i shall.

[cndounda1985]

My tutor charges $125 per hour and charges per hour for emails as well. It has quickly added up but has been worth it so far. Hopefully i shall see in May lol

I dunno but all the sample essays I've seen the writer went through all three kinds, so that's what I was planning on doing.

same. What these essay graders point out in the essay and what consistently get high marks on baressays.com are completely off. I swear I wanted to copy an essay that scored 80+ on baressays word for word and see what the essay grader would've given me.

That's hilarious this question came up - I JUST emailed my tutor about an hour or so ago and asked her what to do because the older answers only address one, but the newer ones seem to analyze under all three approaches. I'll let you know what she says! (Then you all owe me $200).

Does your tutor really charge you $200 to answer a question about an essay? I should get into the tutoring business.

[a male human]

My tutor charges $125 per hour and charges per hour for emails as well. It has quickly added up but has been worth it so far. Hopefully i shall see in May lol

What kind of questions do you ask your tutor as opposed to people on TLS for example?

[Evaly]

On one of my graded essays for Wills, the grader noted that I should go through the prima facie undue influence test not the other ones (common law, statutory). What do you guys think?

There are three tests for undue influence?!? Oh lord

LOL..only because i'm currently reviewing wills as i type. It's Regular prima facie undue influence, the a different test for undue influence if there's a confidential relationship and then statutory undue influence. I've yet to memorize the statutory one but i shall.

I had to go look this up. Is this what you are talking about?

Prima facie undue influence: Susceptibility, Motive, Opportunity and Causation
Common law: confidential relationship - presumption of undue influence
Statutory: beneficiary of will who also help draft the will - presumption of undue influence

My test prep mentioned all three, but did not call the other two "common law" or "statutory."

[redblueyellow]

So, apparently there are differences between Omitted Child and Pretermitted Child.

Looks like the only (?) difference is the time when the child is born. An omitted child is one that was born after the execution of the testamentary documents, whereas a pretermitted child is one that was born prior. The tests seem to be the same for both, I think.

Question:

For CA wills, do we only need to know per capita (with representation?) distribution or do we need to know per stirpes, etc, as well?

[Evaly]

So, apparently there are differences between Omitted Child and Pretermitted Child.

Looks like the only (?) difference is the time when the child is born. An omitted child is one that was born after the execution of the testamentary documents, whereas a pretermitted child is one that was born prior. The tests seem to be the same for both, I think.

Question:

For CA wills, do we only need to know per capita (with representation?) distribution or do we need to know per stirpes, etc, as well?

Per capita with representation is the most important. Depends on your time constraint, it may not be worthwhile to memorize the others.

[redblueyellow]

So, apparently there are differences between Omitted Child and Pretermitted Child.

Looks like the only (?) difference is the time when the child is born. An omitted child is one that was born after the execution of the testamentary documents, whereas a pretermitted child is one that was born prior. The tests seem to be the same for both, I think.

Question:

For CA wills, do we only need to know per capita (with representation?) distribution or do we need to know per stirpes, etc, as well?

Per capita with representation is the most important. Depends on your time constraint, it may not be worthwhile to memorize the others.

Alrighty, I don't have time to really study the rest, unless it's key. Still need to do trusts, learn about PTs, Cal Civ Pro, Cal Evid, and probably go over everything again anyways.

Also, is "wills" ALWAYS going to be "per CA rules?"

Leansheets have rules for Fed and CA it seems.

[Evaly]

Alrighty, I don't have time to really study the rest, unless it's key. Still need to do trusts, learn about PTs, Cal Civ Pro, Cal Evid, and probably go over everything again anyways.

Also, is "wills" ALWAYS going to be "per CA rules?"

Leansheets have rules for Fed and CA it seems.

Good question. I've looked at five wills essays. Four of them call for CA rules. The last one has two parts. The first part calls for CA rules, and the second part is about doctrine of cy pres but does not specify CA or federal. This small sample suggests that it'll almost always be CA rules.

[redblueyellow]

Alrighty, I don't have time to really study the rest, unless it's key. Still need to do trusts, learn about PTs, Cal Civ Pro, Cal Evid, and probably go over everything again anyways.

Also, is "wills" ALWAYS going to be "per CA rules?"

Leansheets have rules for Fed and CA it seems.

Good question. I've looked at five wills essays. Four of them call for CA rules. The last one has two parts. The first part calls for CA rules, and the second part is about doctrine of cy pres but does not specify CA or federal. This small sample suggests that it'll almost always be CA rules.

Yea, those are good enough odds to just run/learn the CA rules.

One more thing, if you happen to know:

In some essays I've seen (cal bar models) and then high scoring essays on baressays, students write the validity of wills in two methods, and I don't know which one is correct or more importantly, when they apply. Kaplan is not doing a good job or telling me how to structure a Wills essay.

1. Sometimes I see something along the lines of: "A valid will includes testamentary intent, proper capacity, and performance of the execution conformed with proper will formalities." Once that's done, they will then go on to mention whether it's attested or holographic, and in some cases, omit the attested/holographic elements entirely.

2. However, another method I see is people jumping directly into whether the will is attested or holographic, and give the elements of those. They won't mention the "a valid will includes" portion at all. Once they run the elements of either an attested or holographic will, then they'll start looking at capacity and move on to other defenses if appropriate.

Which way am I supposed go about structuring the essay? Why in #1 are the elements for an attested/holographic will completely omitted?

[Evaly]

One more thing, if you happen to know:

In some essays I've seen (cal bar models) and then high scoring essays on baressays, students write the validity of wills in two methods, and I don't know which one is correct or more importantly, when they apply. Kaplan is not doing a good job or telling me how to structure a Wills essay.

1. Sometimes I see something along the lines of: "A valid will includes testamentary intent, proper capacity, and performance of the execution conformed with proper will formalities." Once that's done, they will then go on to mention whether it's attested or holographic, and in some cases, omit the attested/holographic elements entirely.

2. However, another method I see is people jumping directly into whether the will is attested or holographic, and give the elements of those. They won't mention the "a valid will includes" portion at all. Once they run the elements of either an attested or holographic will, then they'll start looking at capacity and move on to other defenses if appropriate.

Which way am I supposed go about structuring the essay? Why in #1 are the elements for an attested/holographic will completely omitted?

I'd say either way is fine as long as you analyzed the elements at some point. Whether you mention them at the outset or mention them when you do the attested / holographic analysis is just personal preference. I'd go with the method that is easiest to recall and most natural for you.

[redblueyellow]

One more thing, if you happen to know:

In some essays I've seen (cal bar models) and then high scoring essays on baressays, students write the validity of wills in two methods, and I don't know which one is correct or more importantly, when they apply. Kaplan is not doing a good job or telling me how to structure a Wills essay.

1. Sometimes I see something along the lines of: "A valid will includes testamentary intent, proper capacity, and performance of the execution conformed with proper will formalities." Once that's done, they will then go on to mention whether it's attested or holographic, and in some cases, omit the attested/holographic elements entirely.

2. However, another method I see is people jumping directly into whether the will is attested or holographic, and give the elements of those. They won't mention the "a valid will includes" portion at all. Once they run the elements of either an attested or holographic will, then they'll start looking at capacity and move on to other defenses if appropriate.

Which way am I supposed go about structuring the essay? Why in #1 are the elements for an attested/holographic will completely omitted?

I'd say either way is fine as long as you analyzed the elements at some point. Whether you mention them at the outset or mention them when you do the attested / holographic analysis is just personal preference. I'd go with the method that is easiest to recall and most natural for you.

Awesome, thanks. Seems easier for me to remember if I start from the super beginning (what is a valid will?) and then move down.

[aretoodeetoo]

I have a room at Courtyard Oakland Downtown from Wednesday to Thursday. I'm thinking I'd rather just commute each morning. Currently there are no available rooms and the rate is ~$325 before taxes and that fun. Fielding offers in case anyone wants that room. (1 king bed, 1 extra sofa bed, 375 sq ft.)

I may give it away if I can't cancel and no one wants (to pay) for it. PM me if interested.

[Cole45]

Hi all - new subscriber here. I was looking for thoughts on predictions besides Sacuzzo. This thread is wicked long so I started a new one with some that were suggested to me. Please weigh in! http://www.top-law-schools.com/forums/v ... 1&t=244002

[mhub172]

The night before the exam, I have a plan A and a plan B and a plan C.

Plan A: Stay up and study all night, survive the exam with a ton of coffee.

Plan B: Take some OTC sleeping pills, to help me sleep my 8 hours. However, sometimes I get a side effect of tiredness/grogginess that lasts until afternoon when I take pills.

Plan C: Try to fall asleep (drug free), most likely won't fall asleep until 4-5am and I'll end up getting roughly 3 hours. I can't even sleep for hours now due to stress, and it's about 5 days away.

I'm thinking Plan A feels best.

Any thoughts on what I should try to do?

I really don't feel like there's anyway that i'll sleep more than 5 hours that night without some drug to sedate me. Yeah I know, I shouldn't stress, but can't help but stress. Since stress will keep me up, I figured I might as well be productive and not sleep at all. Besides it feels pretty horrible to wake up on 3-5 hours of sleep, more horrible than not sleeping at all.

Have you tried straight melatonin? It's more natural and leaves you less groggy in the morning. I know it's probably not great for you, but I've been using it for the past week just to see how it works and how I feel in the morning and I have to say, it's been great! I take it around 9pm and I literally can't keep my eyes open at 10:30. Then in the morning I haven't had that groggy feeling like I do with some other OTC sleeping pills. Each person is different but I know that I need my sleep to function!

[melvinIII]

So, apparently there are differences between Omitted Child and Pretermitted Child.

Looks like the only (?) difference is the time when the child is born. An omitted child is one that was born after the execution of the testamentary documents, whereas a pretermitted child is one that was born prior. The tests seem to be the same for both, I think.

Question:

For CA wills, do we only need to know per capita (with representation?) distribution or do we need to know per stirpes, etc, as well?

Pretermitted is born after, omitted born before.

Per capita with representation is the default in CA, but a different scheme can be applied if the will specifies. I did an old CA essay from 2009/2010ish that said the testator's will devised property per stirpes.

As for the prima facie/CL/statutory undue influence tests I haven't heard those specific terms used. I assume if you make a heading for "whether there was undue influence" and discuss all those circumstances without using the names for the tests the grading won't be any different.

[CourtneyElizabeth]

Alrighty, I don't have time to really study the rest, unless it's key. Still need to do trusts, learn about PTs, Cal Civ Pro, Cal Evid, and probably go over everything again anyways.

Also, is "wills" ALWAYS going to be "per CA rules?"

Leansheets have rules for Fed and CA it seems.

Good question. I've looked at five wills essays. Four of them call for CA rules. The last one has two parts. The first part calls for CA rules, and the second part is about doctrine of cy pres but does not specify CA or federal. This small sample suggests that it'll almost always be CA rules.

Cy Pres is wills? Is that where if they leave $1,000,000 to some nursing home that closes, the court with use the cy press doctrine and find another nursing home to give the money to? Does that apply to trusts too?

A MALE HUMAN - She charged me $200 an hour, but no charge for phone calls, emails, other questions etc.

[BobbyBooBoo]

Alrighty, I don't have time to really study the rest, unless it's key. Still need to do trusts, learn about PTs, Cal Civ Pro, Cal Evid, and probably go over everything again anyways.

Also, is "wills" ALWAYS going to be "per CA rules?"

Leansheets have rules for Fed and CA it seems.

Good question. I've looked at five wills essays. Four of them call for CA rules. The last one has two parts. The first part calls for CA rules, and the second part is about doctrine of cy pres but does not specify CA or federal. This small sample suggests that it'll almost always be CA rules.

Cy Pres is wills? Is that where if they leave $1,000,000 to some nursing home that closes, the court with use the cy press doctrine and find another nursing home to give the money to? Does that apply to trusts too?

A MALE HUMAN - She charged me $200 an hour, but no charge for phone calls, emails, other questions etc.

If you encounter a cy press problem that involves wills, it will most likely be a pour-over will situation. Be sure to know the pour-over element incorporation of the trust and I think it should be okay.

[Evaly]

If you encounter a cy press problem that involves wills, it will most likely be a pour-over will situation. Be sure to know the pour-over element incorporation of the trust and I think it should be okay.

What is the difference between a pour-over trust and a testamentary trust? Is there even a difference? Thanks

[JJDancer]

The night before the exam, I have a plan A and a plan B and a plan C.

Plan A: Stay up and study all night, survive the exam with a ton of coffee.

Plan B: Take some OTC sleeping pills, to help me sleep my 8 hours. However, sometimes I get a side effect of tiredness/grogginess that lasts until afternoon when I take pills.

Plan C: Try to fall asleep (drug free), most likely won't fall asleep until 4-5am and I'll end up getting roughly 3 hours. I can't even sleep for hours now due to stress, and it's about 5 days away.

I'm thinking Plan A feels best.

Any thoughts on what I should try to do?

I really don't feel like there's anyway that i'll sleep more than 5 hours that night without some drug to sedate me. Yeah I know, I shouldn't stress, but can't help but stress. Since stress will keep me up, I figured I might as well be productive and not sleep at all. Besides it feels pretty horrible to wake up on 3-5 hours of sleep, more horrible than not sleeping at all.

Have you tried straight melatonin? It's more natural and leaves you less groggy in the morning. I know it's probably not great for you, but I've been using it for the past week just to see how it works and how I feel in the morning and I have to say, it's been great! I take it around 9pm and I literally can't keep my eyes open at 10:30. Then in the morning I haven't had that groggy feeling like I do with some other OTC sleeping pills. Each person is different but I know that I need my sleep to function!

Agreed.

I have to say Plan A sounds like a terrible idea - no offense.
Even if you sleep at 4-5 am and sleep 3 hours, that's a power nap/2 sleep cycles so you should be fine. I usually have an adrenaline rush if I only sleep 3 hours. But then I crash in the afternoon.
I would rather sleep 3 hours and atill load up on caffeine. Also studying all night before the exam is likely only more stress inducing.

At 11 pm start taking a shower, dimming the lights, do some meditation ( I listened to specific ones about success and "you can do it" ones to help sleep before the bar). If you spend 45 minutes in bed and can't sleep - fine, get out and do something else (some chores, write down some fears, then cross them out and instead write down "I can do it" etc. over and over). Watch a 30 minute tv show or netflix. And try to go to bed again. You will likely fall asleep by 2am..

[morescotchplease]

If you encounter a cy press problem that involves wills, it will most likely be a pour-over will situation. Be sure to know the pour-over element incorporation of the trust and I think it should be okay.

What is the difference between a pour-over trust and a testamentary trust? Is there even a difference? Thanks

pour over wills are where all assets or designated assets are poured into an existing trust. It's basically another incorporation by reference since the trust has to exist at the time of executing the will, specifically mentioned in the will. under for the uniform something act, even if the trust i later modified or has no res at the time, it's okay.