July 2015 California Bar Exam Forum

[atticus89]

Anyone taking the exam in Century City Plaza? I wanna know how bad the traffic is in the morning coming from the Pico Robertson area. Thanks.

Leave an hour and a half early. You don't want to risk it. I am taking in culver city so I'm forced to get a hotel. I can't deal with the 405 everyday for 5 long days.

I looked on mapquest, jk who the hell uses mapquest, google maps, and it says it's 2.1 miles, a 40 minute walk. There is no way it would take an hour and a half by car, unless LA traffic really is THAT bad. But I would basically just get out of the uber and start walking if it was like that.

Ok, well I guess if you're taking Uber you won't have to deal with parking too. It once took me 1.5 hrs to go 12 miles, from Santa Monica to Korea Town.

Not sure if you're from here, but I've lived in LA my entire life. 1.5 hours early is absurd if you're going 2.1 miles from Pico-Robertson to Century City lol. You're supposed to be seated for the exam by 8:20am. There are some businesses in that area but there is going to be 0 traffic at that time (other than other exam takers trying to park). You're not going to be taking the freeway. It will take you 10-15min at most (if you run into bad luck with the lights) in an Uber going up Olympic.

I'm sorry it took you 1.5 hours to get from SM to K-town but that is an extreme case. Though I'd argue that even with traffic it should take no more than 1 hour unless you got lost. If you travel nearly 13 miles from the western most point of any major city directly towards that city's downtown during rush hour, there will unsurprisingly be a shit ton of traffic.

Again, you have to be seated at 8:20am. If I left my apartment in Santa Monica before 8am it would take me 25 minutes to get to downtown LA, which is farther away than K-town.

[crumpetsandtea]

Quick question about intestate succession re pretermitted children +spouse. If someone executes a valid will leaving nothing to their two children and spouse, and leaving their estate to a TP, does that mean that TP will not get anything? Forgotten spouse gets 100% of CP and 1/3 of SP, and the two children get 2/3 of SP. That's 100% of SP and CP accounted for, so it seems like TP won't get anything. This seems oddly wrong when we keep learning about how much wills are based on intent.

Well, pretermitted children/spouses must show they were unintentionally left off from the will, though (via a will created prior to the marriage or prior to the birth of the child/the knowledge of the child). So it's not really automatic.

I don't think they have to show that at all because one of the threshold requirements under the CA Probate Code is that the Will predate the marriage or birth/conception. If the Will predates, there is a presumption they were unintentionally left out; thus, no initial burden to show it was unintentional. It's presumed by the dates in question...

Then, however, someone else can come in and show they were intentionally omitted (or one of two other exceptions to the rule).

Further, I might add: The rule can apply to children who are believed dead or the testator was unaware of the child's birth, then they are treated as being pretermitted. Then, the threshold is that the testator was unaware of the birth and the presumption follows.

Lol, your post is exactly what my post was intended to say, so you're not disagreeing at all. I think you misunderstood my response a little - by "they must show" I meant that the will has to be created before the marriage in order for a child/spouse to be pretermitted. They don't have to "show" it via extrinsic evidence - they have to "show" it by saying "look, the date on this will is before we married/I was born."

Also, when I said "knowledge of the child" I meant to refer to instances where children are believed to be dead or the birth was unkown to the testator.

So yeah, I think we're saying exactly the same thing except I just glossed over it. When I said "It's not automatic" I meant, not all children/spouses that aren't in a will are considered pretermitted, because Hermione's post seemed like she thought ALL spouses/children left off the will would still get a share via intestacy. My post was just saying, no there are requirements that must be met in order for them to be considered pretermitted.

[robinhoodOO]

Quick question about intestate succession re pretermitted children +spouse. If someone executes a valid will leaving nothing to their two children and spouse, and leaving their estate to a TP, does that mean that TP will not get anything? Forgotten spouse gets 100% of CP and 1/3 of SP, and the two children get 2/3 of SP. That's 100% of SP and CP accounted for, so it seems like TP won't get anything. This seems oddly wrong when we keep learning about how much wills are based on intent.

Well, pretermitted children/spouses must show they were unintentionally left off from the will, though (via a will created prior to the marriage or prior to the birth of the child/the knowledge of the child). So it's not really automatic.

I don't think they have to show that at all because one of the threshold requirements under the CA Probate Code is that the Will predate the marriage or birth/conception. If the Will predates, there is a presumption they were unintentionally left out; thus, no initial burden to show it was unintentional. It's presumed by the dates in question...

Then, however, someone else can come in and show they were intentionally omitted (or one of two other exceptions to the rule).

Further, I might add: The rule can apply to children who are believed dead or the testator was unaware of the child's birth, then they are treated as being pretermitted. Then, the threshold is that the testator was unaware of the birth and the presumption follows.

Lol, your post is exactly what my post was intended to say, so you're not disagreeing at all. I think you misunderstood my response a little - by "they must show" I meant that the will has to be created before the marriage in order for a child/spouse to be pretermitted. They don't have to "show" it via extrinsic evidence - they have to "show" it by saying "look, the date on this will is before we married/I was born."

Also, when I said "knowledge of the child" I meant to refer to instances where children are believed to be dead or the birth was unkown to the testator.

So yeah, I think we're saying exactly the same thing except I just glossed over it. When I said "It's not automatic" I meant, not all children/spouses that aren't in a will are considered pretermitted, because Hermione's post seemed like she thought ALL spouses/children left off the will would still get a share via intestacy. My post was just saying, no there are requirements that must be met in order for them to be considered pretermitted.

No worries; I hear what you're saying now

I just wanted to make it 100% clear, because it's a very particular rule that I've noticed some LS buddies get completely wrong by over-complicating it

[Hermione]

Quick question about intestate succession re pretermitted children +spouse. If someone executes a valid will leaving nothing to their two children and spouse, and leaving their estate to a TP, does that mean that TP will not get anything? Forgotten spouse gets 100% of CP and 1/3 of SP, and the two children get 2/3 of SP. That's 100% of SP and CP accounted for, so it seems like TP won't get anything. This seems oddly wrong when we keep learning about how much wills are based on intent.

Well, pretermitted children/spouses must show they were unintentionally left off from the will, though (via a will created prior to the marriage or prior to the birth of the child/the knowledge of the child). So it's not really automatic.

I don't think they have to show that at all because one of the threshold requirements under the CA Probate Code is that the Will predate the marriage or birth/conception. If the Will predates, there is a presumption they were unintentionally left out; thus, no initial burden to show it was unintentional. It's presumed by the dates in question...

Then, however, someone else can come in and show they were intentionally omitted (or one of two other exceptions to the rule).

Further, I might add: The rule can apply to children who are believed dead or the testator was unaware of the child's birth, then they are treated as being pretermitted. Then, the threshold is that the testator was unaware of the birth and the presumption follows.

Lol, your post is exactly what my post was intended to say, so you're not disagreeing at all. I think you misunderstood my response a little - by "they must show" I meant that the will has to be created before the marriage in order for a child/spouse to be pretermitted. They don't have to "show" it via extrinsic evidence - they have to "show" it by saying "look, the date on this will is before we married/I was born."

Also, when I said "knowledge of the child" I meant to refer to instances where children are believed to be dead or the birth was unkown to the testator.

So yeah, I think we're saying exactly the same thing except I just glossed over it. When I said "It's not automatic" I meant, not all children/spouses that aren't in a will are considered pretermitted, because Hermione's post seemed like she thought ALL spouses/children left off the will would still get a share via intestacy. My post was just saying, no there are requirements that must be met in order for them to be considered pretermitted.

No worries; I hear what you're saying now

I just wanted to make it 100% clear, because it's a very particular rule that I've noticed some LS buddies get completely wrong by over-complicating it

Right. But assuming that you've shown that the pretermitted spouse and children were unintentionally left off, say if the will predates both children and the new spouse, and none of them are taken care of outside of the testamentary instrument. In that case, you've got 100% of CP going to spouse, and the SP is split in thirds and is going to spouse and the two children. That still leaves nothing for a third party. In other words, the court assumes that if you drafted a will before you had children and a spouse, you would have wanted those children and spouse to get everything, even if you left something to a third party. The third party's share then gets abated to nothing, do I have that correct?

[BuenAbogado]

Quick question about intestate succession re pretermitted children +spouse. If someone executes a valid will leaving nothing to their two children and spouse, and leaving their estate to a TP, does that mean that TP will not get anything? Forgotten spouse gets 100% of CP and 1/3 of SP, and the two children get 2/3 of SP. That's 100% of SP and CP accounted for, so it seems like TP won't get anything. This seems oddly wrong when we keep learning about how much wills are based on intent.

Well, pretermitted children/spouses must show they were unintentionally left off from the will, though (via a will created prior to the marriage or prior to the birth of the child/the knowledge of the child). So it's not really automatic.

I don't think they have to show that at all because one of the threshold requirements under the CA Probate Code is that the Will predate the marriage or birth/conception. If the Will predates, there is a presumption they were unintentionally left out; thus, no initial burden to show it was unintentional. It's presumed by the dates in question...

Then, however, someone else can come in and show they were intentionally omitted (or one of two other exceptions to the rule).

Further, I might add: The rule can apply to children who are believed dead or the testator was unaware of the child's birth, then they are treated as being pretermitted. Then, the threshold is that the testator was unaware of the birth and the presumption follows.

In the OP's example, the pretermitted spouse and children would not receive anything, because the TP will easily show that testator would not have left money to the kids or spouse even if he knew about them, because he had a spouse and kids that he DID know about and didn't leave them anything.

Pretermitted usually only works when the testator showed intent to leave money to spouse and kids, so the pretermitted will force those other spouse/kids to share with them.

Now, a good hypo would be where he DID leave to wife and kids and then they did something that really offended him so he changed it. Then the pretermitted child/spouse will say that the testator does value passing on wealth to spouse/kids but these spouse/kids were haters so he was forced to change his intent. Had he known about US, he would have left us on the will since we are not haters. IMO, such a hypo could go either way, for the TP or for the pretermitted spouse/kids.

[BuenAbogado]

Evidence question:

D is charged with mail fraud. At trial, D has not yet taken the stand, but calls Witness who testifies that D's reputation is one of honesty. On cross, prosecution asks W "Didn't you hear that two years ago the D was arrested for embezzlement?"

Is the question admissible?

Relevant answer choices:

C. Yes, to impeach W's credibility
D. Yes, because the earlier arrest for a crime of dishonesty makes the D's guilt of the mail fraud more likely.

I thought about C, but then again, isn't mail fraud and embezzlement both crimes of dishonesty? If that's the case, and the character trait in question is of honesty, shouldn't D be correct?

Correct answer is C, and D was marked incorrect b/c a prosecutor is not allowed to use a bad act to show a D has propensity to commit a similar bad act. Rule 404 limits use of CE to prove conduct in accordance w/a character trait.

Buuut, if character is at issue, wouldn't the same character trait be permissible, like here? OR is the "character at issue" solely reserved for negligent entrustment, defamation, and child custody?

The reason that D is wrong is that we can't use character evidence to prove that because you did something bad before, you'll do it again. (Unless, it's rape, for some reason).

We assume that people will learn from their mistakes after being punished and not do it again. But we do assume that people that commit felonies or crimes of moral turpitude are less trustworthy on the stand, so we can impeach them with those acts if they open the door by using CE to prove they are of good character.

However, what you need to do on an essay is try to find a way to admit the embezzlement charge using the MIMIC exceptions. Won't go into that, you gotta do that on your own.

[SpAcEmAn SpLiFF]

Evidence question:

D is charged with mail fraud. At trial, D has not yet taken the stand, but calls Witness who testifies that D's reputation is one of honesty. On cross, prosecution asks W "Didn't you hear that two years ago the D was arrested for embezzlement?"

Is the question admissible?

Relevant answer choices:

C. Yes, to impeach W's credibility
D. Yes, because the earlier arrest for a crime of dishonesty makes the D's guilt of the mail fraud more likely.

I thought about C, but then again, isn't mail fraud and embezzlement both crimes of dishonesty? If that's the case, and the character trait in question is of honesty, shouldn't D be correct?

Correct answer is C, and D was marked incorrect b/c a prosecutor is not allowed to use a bad act to show a D has propensity to commit a similar bad act. Rule 404 limits use of CE to prove conduct in accordance w/a character trait.

Buuut, if character is at issue, wouldn't the same character trait be permissible, like here? OR is the "character at issue" solely reserved for negligent entrustment, defamation, and child custody?

I believe that the character wouldn't be at issue in mail fraud, which is why D is the wrong answer. The requirements to prove mail fraud don't include any sort of character, whereas, for example, a tort of negligent entrustment requires the plaintiff to prove a character for negligence.

[BuenAbogado]

Questions as I prepare for the bar pledge hazing initation:

1. Can someone list the fundamental rights as they differ between clauses and tests in Con law? I know some apply to some and others apply to others.
2. Can someone do the same for the Suspect classes?
3. Can someone also tell me why the Kardashians get so much attention?

[robinhoodOO]

Questions as I prepare for the bar pledge hazing initation:

1. Can someone list the fundamental rights as they differ between clauses and tests in Con law? I know some apply to some and others apply to others.
2. Can someone do the same for the Suspect classes?
3. Can someone also tell me why the Kardashians get so much attention?

I'm going to make this extremely simple: The answer to each question is simply "'Merica." Throw in a 'fuck ya' at the end and you're good to go...

[crumpetsandtea]

This is the closest thing I have on hand for what you asked for:

SUBSTANTIVE DUE PROCESS
STRICT SCRUTINY: marriage, procreation, custody, keep family together, control upbringing of children, access to contraceptives, right to travel, durational residency requirements, voting
UNDUE BURDEN: abortions (regulation is ok as long as it does not create undue burden on right). After viability, prohibition is allowed.
UNCLEAR STANDARD: homosexual activity, right to bear arms, right to refuse medical treatment
RATIONAL BASIS: restrictions on foreign travel

EQUAL PROTECTION
STRICT SCRUTINY: Race & National Origin, Alienage
INTERMEDIATE SCRUTINY: Gender, Non-Marital Children
RATIONAL BASIS: Age, Disability, Wealth, Economic Differences, Sexual Orientation

Not sure if this is as comprehensive/detailed as you wanted, but I hope it's at least a little helpful or someone can build off of it to get to what you want!

[Pleasye]

Evidence question:

D is charged with mail fraud. At trial, D has not yet taken the stand, but calls Witness who testifies that D's reputation is one of honesty. On cross, prosecution asks W "Didn't you hear that two years ago the D was arrested for embezzlement?"

Is the question admissible?

Relevant answer choices:

C. Yes, to impeach W's credibility
D. Yes, because the earlier arrest for a crime of dishonesty makes the D's guilt of the mail fraud more likely.

I thought about C, but then again, isn't mail fraud and embezzlement both crimes of dishonesty? If that's the case, and the character trait in question is of honesty, shouldn't D be correct?

Correct answer is C, and D was marked incorrect b/c a prosecutor is not allowed to use a bad act to show a D has propensity to commit a similar bad act. Rule 404 limits use of CE to prove conduct in accordance w/a character trait.

Buuut, if character is at issue, wouldn't the same character trait be permissible, like here? OR is the "character at issue" solely reserved for negligent entrustment, defamation, and child custody?

The reason that D is wrong is that we can't use character evidence to prove that because you did something bad before, you'll do it again. (Unless, it's rape, for some reason).

It's also wrong because you cannot ask about arrests on cross-examination, they do not fall under the exception that prior bad acts can be asked about because a person being arrested for a bad act is not the same thing as someone having committed a bad act.

[BuenAbogado]

Evidence question:

D is charged with mail fraud. At trial, D has not yet taken the stand, but calls Witness who testifies that D's reputation is one of honesty. On cross, prosecution asks W "Didn't you hear that two years ago the D was arrested for embezzlement?"

Is the question admissible?

Relevant answer choices:

C. Yes, to impeach W's credibility
D. Yes, because the earlier arrest for a crime of dishonesty makes the D's guilt of the mail fraud more likely.

I thought about C, but then again, isn't mail fraud and embezzlement both crimes of dishonesty? If that's the case, and the character trait in question is of honesty, shouldn't D be correct?

Correct answer is C, and D was marked incorrect b/c a prosecutor is not allowed to use a bad act to show a D has propensity to commit a similar bad act. Rule 404 limits use of CE to prove conduct in accordance w/a character trait.

Buuut, if character is at issue, wouldn't the same character trait be permissible, like here? OR is the "character at issue" solely reserved for negligent entrustment, defamation, and child custody?

The reason that D is wrong is that we can't use character evidence to prove that because you did something bad before, you'll do it again. (Unless, it's rape, for some reason).

It's also wrong because you cannot ask about arrests on cross-examination, they do not fall under the exception that prior bad acts can be asked about because a person being arrested for a bad act is not the same thing as someone having committed a bad act.

True. Although I wonder if you could bring it up to show that the witness doesn't really know the defendant that well, i.e. if it is someone's mother, and she doesn't know about a major event in their life, then maybe she isn't as involved as she makes herself seem. Far fetched and unrelated to hypo at hand, but I wonder if that type of evidence is admissible for that purpose.

[Pleasye]

True. Although I wonder if you could bring it up to show that the witness doesn't really know the defendant that well, i.e. if it is someone's mother, and she doesn't know about a major event in their life, then maybe she isn't as involved as she makes herself seem. Far fetched and unrelated to hypo at hand, but I wonder if that type of evidence is admissible for that purpose.

Would probably get 403'd out since it's prejudicial and a collateral issue.

[Calicakes]

Anyone taking the exam in Century City Plaza? I wanna know how bad the traffic is in the morning coming from the Pico Robertson area. Thanks.

Leave an hour and a half early. You don't want to risk it. I am taking in culver city so I'm forced to get a hotel. I can't deal with the 405 everyday for 5 long days.

I looked on mapquest, jk who the hell uses mapquest, google maps, and it says it's 2.1 miles, a 40 minute walk. There is no way it would take an hour and a half by car, unless LA traffic really is THAT bad. But I would basically just get out of the uber and start walking if it was like that.

Ok, well I guess if you're taking Uber you won't have to deal with parking too. It once took me 1.5 hrs to go 12 miles, from Santa Monica to Korea Town.

Not sure if you're from here, but I've lived in LA my entire life. 1.5 hours early is absurd if you're going 2.1 miles from Pico-Robertson to Century City lol. You're supposed to be seated for the exam by 8:20am. There are some businesses in that area but there is going to be 0 traffic at that time (other than other exam takers trying to park). You're not going to be taking the freeway. It will take you 10-15min at most (if you run into bad luck with the lights) in an Uber going up Olympic.

I'm sorry it took you 1.5 hours to get from SM to K-town but that is an extreme case. Though I'd argue that even with traffic it should take no more than 1 hour unless you got lost. If you travel nearly 13 miles from the western most point of any major city directly towards that city's downtown during rush hour, there will unsurprisingly be a shit ton of traffic.

Again, you have to be seated at 8:20am. If I left my apartment in Santa Monica before 8am it would take me 25 minutes to get to downtown LA, which is farther away than K-town.

I've been in LA for 25yrs, so I do know the traffic. When I was answering the OP, I did not know how far he lived or if he had to park, etc so I told him extra time just to be on the safe side. It was rush hour when I drove from Santa Monica to law school( 12 miles) and it did take 1.5hrs. I was very late for class

[Tiago Splitter]

True. Although I wonder if you could bring it up to show that the witness doesn't really know the defendant that well, i.e. if it is someone's mother, and she doesn't know about a major event in their life, then maybe she isn't as involved as she makes herself seem. Far fetched and unrelated to hypo at hand, but I wonder if that type of evidence is admissible for that purpose.

Isn't that exactly why it's admissible? Correct answer was admissible to impeach the witness.

[Pleasye]

True. Although I wonder if you could bring it up to show that the witness doesn't really know the defendant that well, i.e. if it is someone's mother, and she doesn't know about a major event in their life, then maybe she isn't as involved as she makes herself seem. Far fetched and unrelated to hypo at hand, but I wonder if that type of evidence is admissible for that purpose.

Isn't that exactly why it's admissible? Correct answer was admissible to impeach the witness.

Oh yup you're right. I prob threw BA off when I responded about arrests. My bad.

[SpAcEmAn SpLiFF]

Dumb trust questions:
What happens exactly when a trust is terminated? For example, if a settlor creates an inter vivos trust for a $1 million for his nephew to go to college and the kid dies, I'm thinking the trust would terminate automatically because its purpose can no longer be accomplished. If there's still $500k in the trust account, what happens to it? Does it revert automatically back to the settlor?

Also, what powers (if any) does a trustee have to terminate or modify the trust? I don't have anything in my outline explaining a trustee's power to terminate or modify and there's nothing in Barbri's outlines either. This leads me to believe that the trustee has no such powers. Can anyone confirm?

[robinhoodOO]

Dumb trust questions:
What happens exactly when a trust is terminated? For example, if a settlor creates an inter vivos trust for a $1 million for his nephew to go to college and the kid dies, I'm thinking the trust would terminate automatically because its purpose can no longer be accomplished. If there's still $500k in the trust account, what happens to it? Does it revert automatically back to the settlor?

Also, what powers (if any) does a trustee have to terminate or modify the trust? I don't have anything in my outline explaining a trustee's power to terminate or modify and there's nothing in Barbri's outlines either. This leads me to believe that the trustee has no such powers. Can anyone confirm?

Purpose ceases and then goes to nephew's estate. Trustee would probably be obligated to remit to the estate upon death. Unless otherwise set forth in the trust or revocable (then the settlor would probably just revoke).

Trustee has no independent power to terminate or modify. This rests with the benes to petition or the settlor if revocable.

[SpAcEmAn SpLiFF]

Dumb trust questions:
What happens exactly when a trust is terminated? For example, if a settlor creates an inter vivos trust for a $1 million for his nephew to go to college and the kid dies, I'm thinking the trust would terminate automatically because its purpose can no longer be accomplished. If there's still $500k in the trust account, what happens to it? Does it revert automatically back to the settlor?

Also, what powers (if any) does a trustee have to terminate or modify the trust? I don't have anything in my outline explaining a trustee's power to terminate or modify and there's nothing in Barbri's outlines either. This leads me to believe that the trustee has no such powers. Can anyone confirm?

Purpose ceases and then goes to nephew's estate. Trustee would probably be obligated to remit to the estate upon death. Unless otherwise set forth in the trust or revocable (then the settlor would probably just revoke).

Trustee has no independent power to terminate or modify. This rests with the benes to petition or the settlor if revocable.

So even though the settlor's still alive, he wouldn't get his money back? That sounds kinda weird to me. If I was some old rich guy and I granted a trust to my nephew for him to be a doctor, and that purpose could no longer be executed because the nephew died, I'd want my money back.

[robinhoodOO]

Dumb trust questions:
What happens exactly when a trust is terminated? For example, if a settlor creates an inter vivos trust for a $1 million for his nephew to go to college and the kid dies, I'm thinking the trust would terminate automatically because its purpose can no longer be accomplished. If there's still $500k in the trust account, what happens to it? Does it revert automatically back to the settlor?

Also, what powers (if any) does a trustee have to terminate or modify the trust? I don't have anything in my outline explaining a trustee's power to terminate or modify and there's nothing in Barbri's outlines either. This leads me to believe that the trustee has no such powers. Can anyone confirm?

Purpose ceases and then goes to nephew's estate. Trustee would probably be obligated to remit to the estate upon death. Unless otherwise set forth in the trust or revocable (then the settlor would probably just revoke).

Trustee has no independent power to terminate or modify. This rests with the benes to petition or the settlor if revocable.

So even though the settlor's still alive, he wouldn't get his money back? That sounds kinda weird to me. If I was some old rich guy and I granted a trust to my nephew for him to be a doctor, and that purpose could no longer be executed because the nephew died, I'd want my money back.

It depends on the Trust. If he reserves some sort of future interest contingent on death or the Trust is revocable w/express reservation to terminate, or something along those lines, he's probably fine under that hypo.

Otherwise, I believe the bene's estate is going to petition the probate court for termination/liquidation of the Trust if the Trustee refuses to liquidate and remit funds.

Obviously, you'd want to know more about the Trust to make a better answer, but that generally seems how it'd play out.

[Tiago Splitter]

I think it would end up in a resulting trust, where the Trustee's obligation would be to give the money back to the Settlor. In the BarBri lecture on this one it says when you give someone a trust for education and the bene graduates and there is money left over it's resulting trust. Trustee then gives it back.

[robinhoodOO]

I think it would end up in a resulting trust, where the Trustee's obligation would be to give the money back to the Settlor. In the BarBri lecture on this one it says when you give someone a trust for education and the bene graduates and there is money left over it's resulting trust. Trustee then gives it back.

I guess we should both be clear: If the terms set forth what happens to the remainder, that's what happens. If the terms are silent, you look to whether the purpose continues or ceases. If we're talking about $1 million for education (like OP said) that's clearly intended for more than just education (unless he wants to be a doctor, lawyer, and a couple of other things). Arguably, the money was transferred just to benefit the bene in this situation.

So, either the nephew's estate petitions the Court for a liquidation/termination for the estate's benefit. Or/And, the settlor petitions the Court to impose a resulting trust for his benefit (unless he's dead).

I suppose if it were $100K for education, you'd have a much better argument for a resulting trust. $1 million, to me, infers the intent was more than merely benefiting the Bene's education.

I think, depending on the circumstances, either could be correct, but always start by looking to the Trust instrument.

[Tiago Splitter]

Yeah the nice thing is something like that would only come up on an essay question, so you could argue both sides. Just want to remind Calvin's altar ego of what happens if the court decides the purpose has been satisfied (or can't be) and there's money left over.

Reasons under these facts to go with resulting trust:

Private express trust fails cuz no beneficiary (presumption settlor wants money back per Barbri)
Private express trust has excess corpus (so if the kid had completed school and there was money left over we'd still assume resulting trust but other facts could be argued)

[SpAcEmAn SpLiFF]

I think it would end up in a resulting trust, where the Trustee's obligation would be to give the money back to the Settlor. In the BarBri lecture on this one it says when you give someone a trust for education and the bene graduates and there is money left over it's resulting trust. Trustee then gives it back.

I guess we should both be clear: If the terms set forth what happens to the remainder, that's what happens. If the terms are silent, you look to whether the purpose continues or ceases. If we're talking about $1 million for education (like OP said) that's clearly intended for more than just education (unless he wants to be a doctor, lawyer, and a couple of other things). Arguably, the money was transferred just to benefit the bene in this situation.

So, either the nephew's estate petitions the Court for a liquidation/termination for the estate's benefit. Or/And, the settlor petitions the Court to impose a resulting trust for his benefit (unless he's dead).

I suppose if it were $100K for education, you'd have a much better argument for a resulting trust. $1 million, to me, infers the intent was more than merely benefiting the Bene's education.

I think, depending on the circumstances, either could be correct, but always start by looking to the Trust instrument.

Thanks guys, this helps a lot. Follow-up question:
Let's say the trust was for $1 million and the settlor wants his money back. The nephew's estate is fighting to have the corpus liquidated and the settlor is trying to get a resulting trust for himself. Would the settlor be favored in any way by virtue of the fact that it was his own money?

[Tiago Splitter]

Like I said the presumption is that the settlor wants the money back if there is no bene. So bene's estate would need to overcome that presumption. But as robin hood said you can argue that the terms overcome that presumption because it was so much extra money the settlor had to know there would be excess. That said if the settlor is alive and wants the money back (and didn't expressly reserve the right to revoke) you'd have to give him a bonus given that he was the one who made the thing in the first place.