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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?

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.

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.

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.

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.

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.

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.

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.

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

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

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

Does anyone know if the graders mark upwards or downwards? If they think your essay is between 55 and 60 will they mark it as a 60 or 55?

Blueplanet wrote:Does anyone know if the graders mark upwards or downwards? If they think your essay is between 55 and 60 will they mark it as a 60 or 55?

Probably whichever they think is closer. Graders are humans too, so it's in your best interest to present it well and make it easy to read so that they're inclined to give you the bump up if they're on the fence.

Blueplanet wrote:Does anyone know if the graders mark upwards or downwards? If they think your essay is between 55 and 60 will they mark it as a 60 or 55?

So my understanding, which may be totally wrong, is that the grader is supposed to look at the essay holistically.

A 60 is pretty close to passing (which is like a 62.5 right?). So, like AMH is saying, I imagine the thinking is...."is this a kinda crappy essay overall, or is this a mostly decent essay overall"

And things like readability, at least some acknowledgement of an issue even if you messed up the rule, good structure, etc etc probably tip the scales in your favor.

But I also think that you could just be screwed if the grader is having a shit day and could get lucky if the grader got lucky....if you know what I mean!

ETA - my tutor was a former grader. He could grade my essays on the fly in like 5 minutes and tell me how many points he'd give for each issue. It was freaky, but it just drilled the point home that the graders do not spend a lot of time ruminating over your score.

Anyone having trouble going on the admission status page? This is the link where i'm trying to access to: http://sbc.calbar.ca.gov/

a male human wrote:

Blueplanet wrote:Does anyone know if the graders mark upwards or downwards? If they think your essay is between 55 and 60 will they mark it as a 60 or 55?

Probably whichever they think is closer. Graders are humans too, so it's in your best interest to present it well and make it easy to read so that they're inclined to give you the bump up if they're on the fence.

Grader for a major bar prep company here, who's guidelines include actual CA bar graders -- a male human is correct. It's what they think is closer, at least that's what they're supposed to do. They may feel generous that day. Or your essay may depend on how bad the previous 20 essays were (i.e. "wow the last essay was so much worse, and i gave it a 65? jees this one should be a 65 ... or 70.. probably 65 since 70 is supposed to be sooo good. darn i wish 67.5 was an option.).

chickenb00b wrote:

a male human wrote:

Blueplanet wrote:Does anyone know if the graders mark upwards or downwards? If they think your essay is between 55 and 60 will they mark it as a 60 or 55?

Probably whichever they think is closer. Graders are humans too, so it's in your best interest to present it well and make it easy to read so that they're inclined to give you the bump up if they're on the fence.

Grader for a major bar prep company here, who's guidelines include actual CA bar graders -- a male human is correct. It's what they think is closer, at least that's what they're supposed to do. They may feel generous that day. Or your essay may depend on how bad the previous 20 essays were (i.e. "wow the last essay was so much worse, and i gave it a 65? jees this one should be a 65 ... or 70.. probably 65 since 70 is supposed to be sooo good. darn i wish 67.5 was an option.).

Insightful look into the thought process (and dilemmas apparently) of a grader. Thanks for sharing!

rcharter1978 wrote:

Blueplanet wrote:Does anyone know if the graders mark upwards or downwards? If they think your essay is between 55 and 60 will they mark it as a 60 or 55?

So my understanding, which may be totally wrong, is that the grader is supposed to look at the essay holistically.

A 60 is pretty close to passing (which is like a 62.5 right?). So, like AMH is saying, I imagine the thinking is...."is this a kinda crappy essay overall, or is this a mostly decent essay overall"

And things like readability, at least some acknowledgement of an issue even if you messed up the rule, good structure, etc etc probably tip the scales in your favor.

But I also think that you could just be screwed if the grader is having a shit day and could get lucky if the grader got lucky....if you know what I mean!

ETA - my tutor was a former grader. He could grade my essays on the fly in like 5 minutes and tell me how many points he'd give for each issue. It was freaky, but it just drilled the point home that the graders do not spend a lot of time ruminating over your score.

bar prep co. grader here -- just wanted to comment on the 5-minute grading.
When I receive a batch of answers on an essay prompt i'm not familiar with (i.e. I haven't graded this exact question before), the first couple answers will take me a while. The next 40 or so can be done in 5-10 minutes.

We were told (or trained) that this was absolutely normal. There's a lot of "pre-work" to be done before grading essays. We have to review the outline, all the issues, and facts supporting the analysis, sample answer, etc. That's true for real CA bar graders too. They actually meet before-hand with other graders to discuss all the issues, etc. There's certainly a lot more prep work for them considering how they don't have a sample answer to go off of, and have to spot the issues together.

Which goes without saying, structure, ease of legibility, big fancy words all help.

What doesn't help? This answer I just read that brought up an issue that was not contemplated at all by my 10 page outline. Generally speaking, and no offense to that student, but that's just bad lawyering. You can't pull arguments based on facts that did not exist. If nothing in the facts suggest such an argument, don't write it. Everytime I see such an argument, I take a long pause to try to appreciate their creativity. But in the real world, it just doesn't work like that.

And sure, in law school I'm guilty of such a method on exams. After all, I'm not that confident in my knowledge in Torts and should write it all out for the chance that it may be an issue. But, really, I just think you don't know what you're talking about and is dumping a lot of information you tried to memorize. (i also recognize that many professors tell you that you won't be docked for addressing issues that should not have been addressed, but most professors take more than 5 minutes to grade each paper (maybe 15-20 minutes!). Either way, you're more likely to get a 55/60 from me.

Edit for additional info: also note that law school exams are drafted to have more issues to discuss, thus the possibility that your creative issue is in fact an issue contemplated by the professor is greater. CA bar exams are done within much less time.

That's interesting because I truly think that it would be tempting to information dump when you're faced with a subject you're really weak in.

I’ve read all the essay no. 1 posts I can find. This essay included multifaceted issues which may never have been tested prior in the same essay. Many of us concluded the condo would belong to Sid because husband had the right to convey his separate property without the consent of the wife, which is generally true. However, this is where knowledge of the Cal. Probate Code section 102 is controlling, which as far as I can tell, all of us missed. It provides if a spouse conveys property as JTWROS and does not receive adequate consideration or retains possession, half of the value at the time of conveyance is recoverable by the surviving spouse if the property was QCP, which it became when Hubby died.

Second question about the codicil was pretty easy. Probate Code 6110 provides a conservator can make a Will for a ward, but case law (in re Romo) held not when the ward is mentally incapacitated; so invalid codicil, state X prop goes to wife.

Third question. Can creditors recovery from the trust? Yes, because Hubby had an interest in the trust assets when he died. Creditors can recover from nonprobate assets, even if already distributed. These assets were an inheritance of hubby, so separate property. That’s somewhat irrelevant because all community property is attachable to satisfy claims, even the surviving spouse’s half.

For the creditor recovery from the trust (call 3 of essay 1), see Cal. Pro. Code 19008, 19400, etc. If you missed this answer, you’re among the majority who are licking their bar essay wounds. We will heal and be stronger and
wiser.

A critical point in the conveyance of the condo was if it occurred before or after the move to California. If before the wife did not have an expectancy interest under Pro Code Section 101, if after (which was the case) she had an expectancy interest, so half the value at the time of conveyance was recoverable.

It's may, when are results out?

In the debrief they seem to say MPT didn’t require statement of facts. That may be true, but I thought most people did it since it didn’t say one way or another. Thoughts?

Hello - I just watched that debrief on the PT - I will tell you I wrote a statement of facts. Never in my legal work of 25 years have I ever submitted a brief without one. It is required by most local rules. If it wasn't required, the question should not have called for a brief, but rather a memo or an analysis of arguments. If the Bar Examiners did not want one, well then, I can only say I wasted valuable time marshaling the facts and shaping them prior to the argument that followed. Well written fact statements shape the law and help the argument - every time.

I am interested, if anyone knows, in how the examiner's grade issues - are they counting issues that are spotted? Are they assigning different weight to different issues? Must the conclusions be correct to have full point weight? I have reviewed the bar secrets model answers - and frankly, I was all over the map with what I hit and didn't hit. Thinking about the hour time limit, it is the bar to full analysis - I mean simply typing fast enough can be an issue. I also could have, and did, immediately think of other issues outside the time constraints - things that could have been the focus but didn't hit me in the first read thru of the question. I also found it very difficult to truly shape a cogent analysis given the sheer number of issues, perhaps because my recall of rules was too slow. Having heard this review, particularly of the PT where I did write a SOF, I am very disheartened.