2019 February California Bar

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lvogt0503

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Re: 2019 February California Bar

Postby lvogt0503 » Fri Apr 05, 2019 2:03 pm

storrez0724 wrote:Most of you seem to be forgetting that it states the father's best friend was the only witness to the subsequent will and codicil. Which would mean what, it would have to be invalid, on the basis of it failing strict formalities for a will or codicil in California or if it was performed in State X, one would discuss that it would be assumed that State X Will law does not create the power to execute a valid will with only one INTERESTED witness.

For the sake of simplicity, you would take what it told you in the question, that State X only required one witness for a valid will, however, that witness was interested and if using common sense, you would apply the same logic as CA will law that creates a presumption of undue influence if the interested witness is not accompanied by an uninterested witness. In this case, on the basis of State X law, that would have required the best friend of the father to have another witness observe the son creating the codicil. Maybe the son did have the power to create this.

HOWEVER, most of you are missing the bigger picture. The codicil was only witnessed by the person who was given the interest in the land, meaning that he was an interested witness and it's invalid if it was performed in CA, both for only having one witness and because of the presumption created by an interested witness. It would also fail as a holographic will or codicil because not all the material provisions were handwritten and we cannot assume that from the facts. If you stated the will or codicil was executed in State X, then you would have to make the assumption that State X would not allow for the creation of a valid will or codicil with only one interested witness. The only witness to that subsequent codicil was the father's best friend and he was interested and you would have to make a jump by stating that State X law, although it allows for the creation of a will or codicil with one witness, would not allow for that creation with only one INTERESTED witness, thus the codicil is invalid under either CA or State X law.



I did not see anything in the question that references Bill as the only witness. On the contrary it states that Sid signed the will and had it "properly witnessed" Therefore, I found the codicil to be valid. Perhaps in the heat of the moment you read this wrong?

Cherry805

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Re: 2019 February California Bar

Postby Cherry805 » Fri Apr 05, 2019 3:25 pm

I believe that as a Conservator, you are not allowed to create a codicil, only the testator can amend the Will.
If I remember correctly, this is the reason why I found the codicil invalid.

jennimarcy

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Re: 2019 February California Bar

Postby jennimarcy » Fri Apr 05, 2019 7:36 pm

Cherry805 wrote:I believe that as a Conservator, you are not allowed to create a codicil, only the testator can amend the Will.
If I remember correctly, this is the reason why I found the codicil invalid.


I remember a lecture online by Emerson bar review (free to the public still) which stated that a conservator is allowed to make the codicil when capacity is no longer held by the testator. In addition, there was a bar question in CA that addressed this, however, the gift was to the conservator and his sister - making it invalid. But here, the gift with intent was to the friend, but only the testator could gift away his cp, not his wife's. That is how I handled the codicil after I found it valid.

Cherry805

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Re: 2019 February California Bar

Postby Cherry805 » Fri Apr 05, 2019 9:08 pm

jennimarcy wrote:
Cherry805 wrote:I believe that as a Conservator, you are not allowed to create a codicil, only the testator can amend the Will.
If I remember correctly, this is the reason why I found the codicil invalid.


I remember a lecture online by Emerson bar review (free to the public still) which stated that a conservator is allowed to make the codicil when capacity is no longer held by the testator. In addition, there was a bar question in CA that addressed this, however, the gift was to the conservator and his sister - making it invalid. But here, the gift with intent was to the friend, but only the testator could gift away his cp, not his wife's. That is how I handled the codicil after I found it valid.


Conservatees do not lose all rights or all voice in important decisions affecting their lives. All conservatees have the right to be treated with understanding and respect, the right to have their wishes considered, and the right to be well cared for by their conservators. Conservatees generally keep the right to (1) control their own wages or salary from employment, (2) make or change a will, (3) marry, (4) receive personal mail, (5) be represented by a lawyer, (6) ask a judge to change conservators, (7) ask a judge to end the conservatorship, (8) vote, unless a judge decides they are not capable of exercising this right, (9) control personal spending money if a judge has authorized an allowance, and (10) make their own medical decisions, unless a judge has taken away that right and given it exclusively to their conservators.

A Conservator does not have inherent powers to make such significant changes. Ultimately, I don't think the examiners care if the codicil is valid or not, they are probably more interested in your analysis and how it supports your conclusion.

jennimarcy

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Re: 2019 February California Bar

Postby jennimarcy » Sat Apr 06, 2019 3:02 pm

Cherry805 wrote:
jennimarcy wrote:
Cherry805 wrote:I believe that as a Conservator, you are not allowed to create a codicil, only the testator can amend the Will.
If I remember correctly, this is the reason why I found the codicil invalid.


I remember a lecture online by Emerson bar review (free to the public still) which stated that a conservator is allowed to make the codicil when capacity is no longer held by the testator. In addition, there was a bar question in CA that addressed this, however, the gift was to the conservator and his sister - making it invalid. But here, the gift with intent was to the friend, but only the testator could gift away his cp, not his wife's. That is how I handled the codicil after I found it valid.


Conservatees do not lose all rights or all voice in important decisions affecting their lives. All conservatees have the right to be treated with understanding and respect, the right to have their wishes considered, and the right to be well cared for by their conservators. Conservatees generally keep the right to (1) control their own wages or salary from employment, (2) make or change a will, (3) marry, (4) receive personal mail, (5) be represented by a lawyer, (6) ask a judge to change conservators, (7) ask a judge to end the conservatorship, (8) vote, unless a judge decides they are not capable of exercising this right, (9) control personal spending money if a judge has authorized an allowance, and (10) make their own medical decisions, unless a judge has taken away that right and given it exclusively to their conservators.

A Conservator does not have inherent powers to make such significant changes. Ultimately, I don't think the examiners care if the codicil is valid or not, they are probably more interested in your analysis and how it supports your conclusion.


Well, according to Murphy v. Murphy and my Wills, Trusts and Estates book from law school a conservator has the power to make the will.

"In some states a guardian or conservator appointed by the court has the power not only to make, amend, or revoke a trust for the ward, but also to make, amend, or revoke the ward's will. If challenged, under the substituted judgment standard the guardian or conservator must show that the ward probably would have under taken the same action. See UPC §5-411 (1990). In Murphy v. Murphy, 78 Cal. Rptr. 3d 784 (App. 2008), the court held that a judicial substituted judgment order during the ward's life precluded a post-death challenge to the estate plan as modified by a conservator....." This is an actual quote from my book.

jptx

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Re: 2019 February California Bar

Postby jptx » Sat Apr 06, 2019 6:10 pm

jennimarcy wrote:
Cherry805 wrote:
jennimarcy wrote:
Cherry805 wrote:I believe that as a Conservator, you are not allowed to create a codicil, only the testator can amend the Will.
If I remember correctly, this is the reason why I found the codicil invalid.


I remember a lecture online by Emerson bar review (free to the public still) which stated that a conservator is allowed to make the codicil when capacity is no longer held by the testator. In addition, there was a bar question in CA that addressed this, however, the gift was to the conservator and his sister - making it invalid. But here, the gift with intent was to the friend, but only the testator could gift away his cp, not his wife's. That is how I handled the codicil after I found it valid.


Conservatees do not lose all rights or all voice in important decisions affecting their lives. All conservatees have the right to be treated with understanding and respect, the right to have their wishes considered, and the right to be well cared for by their conservators. Conservatees generally keep the right to (1) control their own wages or salary from employment, (2) make or change a will, (3) marry, (4) receive personal mail, (5) be represented by a lawyer, (6) ask a judge to change conservators, (7) ask a judge to end the conservatorship, (8) vote, unless a judge decides they are not capable of exercising this right, (9) control personal spending money if a judge has authorized an allowance, and (10) make their own medical decisions, unless a judge has taken away that right and given it exclusively to their conservators.

A Conservator does not have inherent powers to make such significant changes. Ultimately, I don't think the examiners care if the codicil is valid or not, they are probably more interested in your analysis and how it supports your conclusion.


Well, according to Murphy v. Murphy and my Wills, Trusts and Estates book from law school a conservator has the power to make the will.

"In some states a guardian or conservator appointed by the court has the power not only to make, amend, or revoke a trust for the ward, but also to make, amend, or revoke the ward's will. If challenged, under the substituted judgment standard the guardian or conservator must show that the ward probably would have under taken the same action. See UPC §5-411 (1990). In Murphy v. Murphy, 78 Cal. Rptr. 3d 784 (App. 2008), the court held that a judicial substituted judgment order during the ward's life precluded a post-death challenge to the estate plan as modified by a conservator....." This is an actual quote from my book.


The actual statute is Section 2580(b)(13) of the California Probate Code. For the conservator to do this he would have to petition the court, or alternatively an interested person could petition to required to conservator to make a will if the three purposes set forth in 2580(a) are met to the court's satisfaction. (https://codes.findlaw.com/ca/probate-co ... -2580.html). The fact pattern involved no petition to the court or court evaluation of the factors. I cannot believe answer to this question would be known by most attorneys or judges absent legal research. Really glad I did not take the test this time-- I would have had no clue how to answer this.

jennimarcy

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Re: 2019 February California Bar

Postby jennimarcy » Sat Apr 06, 2019 7:45 pm

jptx wrote:
jennimarcy wrote:
Cherry805 wrote:
jennimarcy wrote:
Cherry805 wrote:I believe that as a Conservator, you are not allowed to create a codicil, only the testator can amend the Will.
If I remember correctly, this is the reason why I found the codicil invalid.


I remember a lecture online by Emerson bar review (free to the public still) which stated that a conservator is allowed to make the codicil when capacity is no longer held by the testator. In addition, there was a bar question in CA that addressed this, however, the gift was to the conservator and his sister - making it invalid. But here, the gift with intent was to the friend, but only the testator could gift away his cp, not his wife's. That is how I handled the codicil after I found it valid.


Conservatees do not lose all rights or all voice in important decisions affecting their lives. All conservatees have the right to be treated with understanding and respect, the right to have their wishes considered, and the right to be well cared for by their conservators. Conservatees generally keep the right to (1) control their own wages or salary from employment, (2) make or change a will, (3) marry, (4) receive personal mail, (5) be represented by a lawyer, (6) ask a judge to change conservators, (7) ask a judge to end the conservatorship, (8) vote, unless a judge decides they are not capable of exercising this right, (9) control personal spending money if a judge has authorized an allowance, and (10) make their own medical decisions, unless a judge has taken away that right and given it exclusively to their conservators.

A Conservator does not have inherent powers to make such significant changes. Ultimately, I don't think the examiners care if the codicil is valid or not, they are probably more interested in your analysis and how it supports your conclusion.


Well, according to Murphy v. Murphy and my Wills, Trusts and Estates book from law school a conservator has the power to make the will.

"In some states a guardian or conservator appointed by the court has the power not only to make, amend, or revoke a trust for the ward, but also to make, amend, or revoke the ward's will. If challenged, under the substituted judgment standard the guardian or conservator must show that the ward probably would have under taken the same action. See UPC §5-411 (1990). In Murphy v. Murphy, 78 Cal. Rptr. 3d 784 (App. 2008), the court held that a judicial substituted judgment order during the ward's life precluded a post-death challenge to the estate plan as modified by a conservator....." This is an actual quote from my book.


The actual statute is Section 2580(b)(13) of the California Probate Code. For the conservator to do this he would have to petition the court, or alternatively an interested person could petition to required to conservator to make a will if the three purposes set forth in 2580(a) are met to the court's satisfaction. (https://codes.findlaw.com/ca/probate-co ... -2580.html). The fact pattern involved no petition to the court or court evaluation of the factors. I cannot believe answer to this question would be known by most attorneys or judges absent legal research. Really glad I did not take the test this time-- I would have had no clue how to answer this.



I think basically the examiners wanted the argument that the appointed conservator must do the following for making a will: conservatee must not have capacity, give notice to affected parties, the intent of the conservatee must be in accordance with the codicil to be valid if formational requirements are met AND file the petition under the SJ with the courts (which of course I did not put in my answer). Even though I answered it without mentioning the filing of the petition, I mentioned that notice must be given to the wife under a different code. I did mention the incapacity issue and the intent too which all fit the facts. At this point I can't remember my answer completely but I found the codicil valid. Whether it was good enough without the SJ, who knows what the grader will think of my answer.

echo foxtrot

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Re: 2019 February California Bar

Postby echo foxtrot » Tue Apr 16, 2019 2:00 pm

jennimarcy wrote:
jptx wrote:
jennimarcy wrote:
Cherry805 wrote:
jennimarcy wrote:
Cherry805 wrote:I believe that as a Conservator, you are not allowed to create a codicil, only the testator can amend the Will.
If I remember correctly, this is the reason why I found the codicil invalid.


I remember a lecture online by Emerson bar review (free to the public still) which stated that a conservator is allowed to make the codicil when capacity is no longer held by the testator. In addition, there was a bar question in CA that addressed this, however, the gift was to the conservator and his sister - making it invalid. But here, the gift with intent was to the friend, but only the testator could gift away his cp, not his wife's. That is how I handled the codicil after I found it valid.


Conservatees do not lose all rights or all voice in important decisions affecting their lives. All conservatees have the right to be treated with understanding and respect, the right to have their wishes considered, and the right to be well cared for by their conservators. Conservatees generally keep the right to (1) control their own wages or salary from employment, (2) make or change a will, (3) marry, (4) receive personal mail, (5) be represented by a lawyer, (6) ask a judge to change conservators, (7) ask a judge to end the conservatorship, (8) vote, unless a judge decides they are not capable of exercising this right, (9) control personal spending money if a judge has authorized an allowance, and (10) make their own medical decisions, unless a judge has taken away that right and given it exclusively to their conservators.

A Conservator does not have inherent powers to make such significant changes. Ultimately, I don't think the examiners care if the codicil is valid or not, they are probably more interested in your analysis and how it supports your conclusion.


Well, according to Murphy v. Murphy and my Wills, Trusts and Estates book from law school a conservator has the power to make the will.

"In some states a guardian or conservator appointed by the court has the power not only to make, amend, or revoke a trust for the ward, but also to make, amend, or revoke the ward's will. If challenged, under the substituted judgment standard the guardian or conservator must show that the ward probably would have under taken the same action. See UPC §5-411 (1990). In Murphy v. Murphy, 78 Cal. Rptr. 3d 784 (App. 2008), the court held that a judicial substituted judgment order during the ward's life precluded a post-death challenge to the estate plan as modified by a conservator....." This is an actual quote from my book.


The actual statute is Section 2580(b)(13) of the California Probate Code. For the conservator to do this he would have to petition the court, or alternatively an interested person could petition to required to conservator to make a will if the three purposes set forth in 2580(a) are met to the court's satisfaction. (https://codes.findlaw.com/ca/probate-co ... -2580.html). The fact pattern involved no petition to the court or court evaluation of the factors. I cannot believe answer to this question would be known by most attorneys or judges absent legal research. Really glad I did not take the test this time-- I would have had no clue how to answer this.



I think basically the examiners wanted the argument that the appointed conservator must do the following for making a will: conservatee must not have capacity, give notice to affected parties, the intent of the conservatee must be in accordance with the codicil to be valid if formational requirements are met AND file the petition under the SJ with the courts (which of course I did not put in my answer). Even though I answered it without mentioning the filing of the petition, I mentioned that notice must be given to the wife under a different code. I did mention the incapacity issue and the intent too which all fit the facts. At this point I can't remember my answer completely but I found the codicil valid. Whether it was good enough without the SJ, who knows what the grader will think of my answer.


Review of Q.1 (Comm Prop/Wills/Trusts).

All the comments here are intriguing. This question had an extraordinary amount facts and a lot of issues and sub-issues. I hope those who took it stayed organized and passed. Here is my review of the question and all the best to you. -Eddie https://www.youtube.com/watch?v=FSA345l55wQ

Disclaimer: This is not meant to be an exhaustive list of possible issues.

mr_pobuho

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Re: 2019 February California Bar

Postby mr_pobuho » Tue Apr 16, 2019 5:33 pm

Just a little over a month...Almost there!

Cherry805

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Re: 2019 February California Bar

Postby Cherry805 » Thu Apr 18, 2019 6:56 pm

Bar Exam MBE scores increase for first time in 5 years!!

https://abovethelaw.com/2019/04/bar-exa ... n-5-years/



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