Following up on this previous post.
FYR, full post here:
http://www.top-law-schools.com/forums/v ... 5#p7427178
a male human wrote:The pattern I notice is that the more you write, the worse it becomes. Like know enough prose and see enough connections to be confusing instead of organized within the limited time. If you write well, you probably take the time to organize all your thoughts in more than 1 hour. Trick of the day: Write succinctly and write LESS. Instead of a clusterfuck of information, I now try to separate each element, each issue, making it simple. I don't know if the graders at Kaplan are more generous now, but I've only been getting "green" grades (for all 4 submitted so far). Here is an excerpt from the latest one I submitted (will update with score later):
2006 July Q6 (wills & trusts)
[blah blah]
Check out the 2807's "whether" statements. A Kaplan grader once commented that my issues were easy to follow in an essay full of "whether."
Actually I'm not sure if the above is all that great because I haven't really weaved in "since" and "because" to connect facts to the law, rather than just reciting them.
Seems like "whether" statements work well as issue statements:
I only got a 77.5 for this because my cy pres conclusion was "incorrect"...even though the calbar model answers reach different conclusions. Otherwise I apparently got perfect score on the first interrogatory. 2807, mind taking a look at possible improvements?
Wish we had spoiler tags so I don't take up so much screen space.
One structural improvement I can add is not making a line break after each of the small formality elements. E.g., I could just say "
In writing? Here, the 2003 will is in writing because it was typewritten." Also in this case, perhaps I could underline the element instead of italicize, to make them stand out even more, especially in light of the previous posts pointing out the short time graders spend (in fact, I heard about a grader who grades at red lights instead of texting like normal people). I'm thinking probably not because these subelements can vary depending on how you set up the rule, and it might just confuse the grader.
(1) Whether Nan’s has any rights in Tom’s estate
A beneficiary will take under a will if the will is valid and in force.
Whether the 2003 will is valid
For a will to be valid, the testator must be capable, and the will must meet certain formalities.
Requirements for a will are testator’s intent and capacity. A testator must have the testamentary intent to give away his property. A testator must also have the mental capacity to understand his act, the nature and extent of his property, and his relation to beneficiaries.
Testamentary Intent
Here, Tom had the testamentary to devise his estate in his 2003 will because he had a type written will. He asked his attendant, Lilly, to help him execute it. Furthermore, his will stated a specific amount to his niece, Nan, and left the residue to Happy Home because it “does such important work for the aged who are disabled.” From the language and reasoning contained in the will, his intent to leave his property is clearly shown. Thus, Tom had the testamentary intent to give away his property.
Testamentary Capacity
Tom also had the mental capacity because he understood what he was doing, as shown in his will stating his reason for giving the residue of his estate to Happy Home. He knew the nature and extent of his property because he had a million-dollar estate and left $100,000 to Nan, which is within the limit of his estate. He also understood his relation to his beneficiaries Nan and Happy Home because he called Nan his “niece,” and he had charitable reasons for leaving the rest of his estate to Happy Home. Thus, Tom had testamentary capacity.
Will Formalities
A formally attested will is a will that is subscribed by two disinterested witnesses, and it has specific formalities to be a valid will. It must 1) be in writing, 2) signed by testator or by another at testator’s direction and presence, 3) signed or acknowledged in the joint presence of at least two disinterested witnesses, 4) signed by at least two disinterested witnesses within the testator’s lifetime, and 5) the witnesses understand that the instrument they witness is the testator’s will.
A disinterested witness is a witness who is not named as a beneficiary in the will. A disinterested witness will create a rebuttable presumption of undue influence.
In writing?
Here, the 2003 will is in writing because it was typewritten.
Signed by testator?
Here, the 2003 will was signed properly because Tom directed Lilly to sign his name under his direction and in his presence. Since this is an acceptable alternative to the testator’s direct signature, it is considered to be signed.
Signed in joint presence of two witnesses?
Here, the 2003 will was signed by Lilly and another attendant signed as witnesses in the presence of each other, so it was signed in the joint presence of at least two disinterested witnesses. Since neither is a beneficiary under the will, neither is a disinterested witness that invalidates this formal requirement.
Signed within Tom’s lifetime?
Here, the will was signed by Lilly and the other attendant at Tom’s request. Since he was alive, it was signed within Tom’s lifetime; this formal requirement is met.
Witnesses understood?
Here, the will was named “my will,” so the other attendant understood the document was his will. Lilly also understood it because she helped Tom execute his will.
Therefore, the attested will was validly executed.
Whether the 2003 will was revoked by the 2004 will
A subsequent instrument can cancel a prior will by explicit or implicit revocation. It can be implicitly revoked by inconsistent terms in the new will.
Will Formalities
See above for formal requirements for an attested will.
In writing?
Here, the 2004 will is in writing because it was typed by Lilly.
Signed by testator?
Here, the 2004 will was signed properly because Tom signed his name at the end of the document.
Signed in joint presence of two witnesses?
Here, the 2004 will was signed by the first attendant and the second attendant alone and separately. Lilly was not present when they each signed the document alone. Thus, the 2004 will was not signed in the joint presence of two witnesses.
Signed within Tom’s lifetime?
Here, the will was signed by the two attendants in Tom’s presence. Since he was alive, it was signed within Tom’s lifetime; this formal requirement is met.
Witnesses understood?
Here, Tom explained the purpose of the document to the first witness but not in the presence of the second witness. Thus, the first attendant understood the purpose, but it is unclear whether the second did.
Nonetheless, the joint presence requirement is not met, so this will is invalid. Therefore, the 2004 will was not a valid revocation of the 2003 will.
Dependent relative revocation
DRR is a doctrine that allows a testator to cancel an earlier revocation if he believed that another disposition would be effective, and but for his mistaken belief in the law or facts, he would not have revoked the first will. However, DRR is not applied where the revoking will is not legally valid.
Here, the 2004 will was not validly executed. Thus, it could not have validly revoked the 2003 will. Therefore, DRR is not applicable, and the 2003 will remains in force.
In sum, since the 2003 will remains effective, so is the gift to Nan. Nan takes the $100,000 from Tom.
