Sunday, October 7, 2012

Question 5 - The Angry Decedent Strikes Again Wills

This question I would rate as a fastball.  There are a lot of issues to fly through, but they are the same issues tested in virtually every Wills question since 1980.  If you studied the California Probate Code (CPC) you probably did fine.  This is a very similar question to February 2011 Question 1.

Note that the call of the question asks about Dot and Sam, if you thought Church got anything you hard derailed.

From the California State Bar:
In 2004, Mae, a widow, executed a valid will, intentionally leaving out her daughter, Dot, and giving 50 per cent of her estate to her son, Sam, and 50 per cent to Church.
In 2008, after a serious disagreement with Sam, Mae announced that she was revoking her will, and then tore it in half in the presence of both Sam and Dot.

In 2010, after repeated requests by Sam, Mae handwrote and signed a document declaring that she was thereby reviving her will. She attached all of the torn pages of the will to the document. At the time she signed the document, she was entirely dependent on Sam for food and shelter and companionship, and had not been allowed by Sam to see or speak to anyone for months. By this time, Church had gone out of existence.

In 2011, Mae died. Her sole survivors are Dot and Sam. What rights, if any, do Dot and Sam have in Mae’s estate? Discuss.
 I'll do that after the jump.

I. Assuming that the first will is utilized, Dot and Sam share the estate.

The issue is how property is distributed if the first will governs. Under the common law rule of lapse, if a beneficiary of a testator's will predeceased the testator, any bequests to the beneficiary would lapse (i.e., fail), and would fall into the residuary of the will (the block of remaining property after all specific, general, and demonstrative devises). Here, Church "had gone out of existence" by 2010, well before Mae died causing the gift to Church to fail.

The successors of Church may argue that the gift may be saved under California's antilapse statute. Under the statute, a bequest will not lapse if (1) if is to the testator's kindred, or kindred of a former spouse; and (2) the beneficiary leaves issue. Here, Church is not Mae's kindred or kindred of a former spouse because Mae's "sole survivors are Dot and Sam" even assuming Church was related to one of them, the gift would go to the nearest survivor and not the relative.

The gift to Church lapses and is placed in the residuary of the estate.  The residuary would be distributed through the laws of intestacy and half of Church's gift would go to Dot while half of Church's gift would go to Sam.  Thus, Sam receives 75% of the estate and Dot receives 25% of the estate.  While Sam may argue that  Mae's removal of Dot reflects her present intent not to give anything to Dot, that does not affect the disposition of the residuary clause under the laws of intestacy, absent a provision to the contrary.

II. Mae revoked her first will by destruction.

The issue is whether Mae revoked her first will by tearing it to pieces. A will or any part thereof is revoked by any of the following: (a) A subsequent will which revokes the prior will or part expressly or by inconsistency. (b) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction.  Since Mae tore the will she revoked it and the will is no longer valid.

Therefore, Mae effectively revoked the will.

III.  Mae's writing is not a holographic will because the material terms are not in her handwriting, however it may revive the revoked will under dependent relative revocation.

The issue is whether Mae's subsequent writing revives her prior will.  Dot can argue that Mae's writing does not contain material terms in Mae's own writing because those terms are included in typed yet torn pages of the previous will.  Sam can respond that, notwithstanding the holographic will difficulties, under the doctrine of dependent relative revocation, a will which the testator revokes by physical act in anticipation that a subsequent will would be valid may nonetheless be admitted to probate if the subsequent will turns out to be invalid.  Even though there is a failing on the part of the holographic will to comply with formalities it nonetheless is adequate to revive the prior will.

Next, after Jan. 1, 2009, a will which complies with the signature and writing requirements, but fails to comply with the witnessing requirements, may nonetheless be admitted to probate if the proponent of the will is able to produce clear and convincing evidence that the testator intended the document to be her will.  Here, Dot can explain that Mae, "was entirely dependent on Sam for food and shelter and companionship, and had not been allowed by Sam to see or speak to anyone for months." This indicates that Mae is dependent on Sam and would do anything for him, and Sam will fail to produce clear and convincing evidence to the contrary.

Finally, Dot's best argument for invalidating the will is that Mae lacked the testamentary capacity and intent to create the will because of undue influence.  Dot will point to extrinsic evidence that Mae was reliant on Sam for her daily life functioning and that Sam was in a guardian/ward relationship with his mother.  This position of trust raises a presumption of undue influence to which Sam faces a clear and convincing evidence burden to rebut.  As noted above, he cannot do this.

Therefore all wills are invalid, and all property passes through the intestacy. Sam will get half and Dot will get half.

Question Four: Who wants to be a Dental Hygienist (Contracts, Remedies)

Question Four is a pretty standard contracts and remedies question.  I score this one as a curveball because you have to untangle the contract mess in order to get to the remedies question.  I provided a pair of pretty good strategies for handling these kinds of questions a little over a year ago:

With general inquiries in contract questions there are two basic ways to approach the question. Dan Shemer, who taught my first bar review in Maryland liked the pneumonic: Until Fall Test Pressure Exhaustion Both Threaten Romance (UCC, Formation, Terms, Performance, Breach, Third Parties, Remedies). Another strategy is to consider the elements for a breach of contract in California: 1) A valid contract 2) plaintiff’s performance 3) defendant’s breach and 4) damages. I think you could use either here successfully.

From the California State Bar:

Peter responded to an advertisement placed by Della, a dentist, seeking a dental  hygienist.  After an interview, Della offered Peter the job and said she would either: (1) pay him $50,000 per year; or (2) pay him $40,000 per year and agree to convey to him a  parcel of land, worth about $50,000, if he would agree to work for her for three consecutive years.  Peter accepted the offer and said, “I’d like to go with the second option, but I would like a commitment for an additional three years after the first three.”  Della said, “Good, I’d like you to start next week.”
After Peter started work, Della handed him a letter she had signed which stated only that he had agreed to work as a dental hygienist at a salary of $40,000 per year.
After Peter had worked for two years and nine months, Della decided that she would  sell the parcel of land and not convey it to him.  Even though she had always been satisfied with his work, she fired him.
What rights does Peter have and what remedies might he obtain as to employment and the parcel of land?  Discuss.
Of course, we will do that after the jump.

Question 3: Can I get a witness? (California Evidence) California Bar Exam

This is the first of three criminal questions on this test, the most in recent memory since criminal subjects are rarely tested compared to torts and constitutional law.  This question is probably to calibrate the testing group since virtually the same issues were asked in July 2010 question 3.
Vicky was killed on a rainy night.  The prosecution charged Dean, a business rival, with her murder.  It alleged that, on the night in question, he hid in the bushes outside her home and shot her when she returned from work.

At Dean’s trial in a California court, the prosecution called Whitney, Dean’s wife, to testify.  One week after the murder, Whitney had found out that Dean had been dating another woman and had moved out, stating the marriage was over.  Still angry, Whitney was willing to testify against Dean.   After Whitney was called to the stand, the court took a recess.  During the recess, Dean and Whitney reconciled.  Whitney decided not to testify against Dean.  The trial recommenced and the prosecutor asked Whitney if she saw anything on Dean’s shoes the night of the murder.  When Whitney refused to answer, the court threatened to hold her in contempt.  Reluctantly, Whitney testified that she saw mud on Dean’s shoes.

The prosecution then called Ella, Dean’s next-door neighbor.  Ella testified that, on the night Vicky was killed, she was standing by an open window in her kitchen, which was about 20 feet from an open window in Dean’s kitchen.  She also testified that she saw Dean and Whitney and she heard Dean tell Whitney, “I just killed the gal who stole my biggest account.”  Dean and Whitney did not know that Ella overheard their conversation.

Dean called Fred, a friend, to testify.  Fred testified that, on the day after Vicky was killed, he was having lunch in a coffee shop when he saw Hit, a well-known gangster, conversing at the next table with another gangster, Gus.  Fred testified that he heard Gus ask Hit if he had “taken care of the assignment concerning Vicky,” and that Hit then drew his index finger across his own throat.

Assuming all appropriate objections and motions were timely  made, did the court properly:
1.  Allow the prosecution to call Whitney?  Discuss.
2.  Admit the testimony of:
(a)  Whitney?  Discuss.
(b)  Ella?  Discuss.
(c)  Fred?  Discuss.
Answer according to California law.
I.  Whitney should not have to testify because she has spousal privilege.

The issue is whether Whitney has a privilege not to testify against Dean.  In California, a married person has a privilege not to testify against his spouse in any proceeding unless an exception applies.  Here, Whitney and Dean are married and Whitney invoked her spousal privilege because she "decided not to testify against Dean" and "refused to answer" questions. The prosecution can argue that this silence is not adequate to invoke a privilege which must be asserted affirmatively.

Assuming that argument prevailed the prosecution has a further hurdle to cross since a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship.  Here, the prosecution knows that Whitney and Dean are married and must affirmatively seek Dean's consent to call Whitney.  This failure to do so should result in Whitney being unable to testify.

IIA.  If Whitney does testify her testimony is admissible because it is relevant and is based on personal observation.

Whitney's statement has logical and legal relevance because it tends to shoe that Dean was outside at the time of the murder.

For evidence to be admissible it must be relevant which, under California law, is any evidence that has any tendency to make any fact of consequence, that is at issue, more or less probable than it would be without such evidence. Under Proposition 8 of the California Constitution (hereafter Prop. 8), any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under California Evidence Code (hereafter CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury.

Whitney's statement has logical and legal relavance because the mud on Dean's shoes tends to prove that he was outside on "a rainy night" which would have been necessary to place him at the scene of the crime.

Whitney has personal knowledge because she saw Dean's shoes.

A witness may only testify as to those matters to which one has personal knowledge, in that one  must have perceived the matter in some manner, such as by hearing or observing it.  Here, Whitney saw Dean's shoes and has personal knowledge of their state satisfying this requirement.

Since Whitney has personal knowledge of a relevant observation she may testify as to that observation.

IIB. Ella's statement is admissible because Dean's admission is an exception to the rule against hearsay and the criminal nature of the statement voids the marital communication protection.

Ella's statement possesses Logical/Legal Relevance and personal knowledge because she observed Dean admitting to kill Vicky.

The statement is relevant because it tends to show that Dean admitted to killing Vicky to his wife.  Since Ella observed the statement she is certain of its source giving her personal knowledge of a logially and legally relevant statement.

Ella's statement does not violate the rule against hearsay because Dean's statement is an admission by an opponent of the prosecution.

Hearsay is an out of court statement offered for the truth of the matter asserted.  However, in California admissions by one party may be offered by the other party as an exception to this rule.  While Ella is reporting an out of court statement offered for its truth, since Dean is apparently admitting that he killed someone it is an exception to the rule against hearsay.

Ella's statement does not violate the martial communication exception because Dean's statement was made in furtherance of a crime.

Communications intended to be confidential made between spouses during marriage are not admissible unless an exception applies.  An exception applies to spouses when the communication relates to a crime or fraud.  Here, Dean may claim that he and Whitney intended their solitary late night discussion to be private.  Even if that were true, the communication about how he "just killed the gal" relates to the crime of murder.  Therefore the marital communication exception does not apply.

Therefore, Ella's statement is admissible because Dean's admission is an exception to the rule against hearsay and the criminal nature of the statement voids the marital communication protection.

IIC.  Fred's statement violates the rule against hearsay and is inadmissible.

Fred's statement has Logical and Legal Relevance because it tends to show that Hit killed Vivky and not Dean.

As a preliminary manner, the issue is whether the hand motion is an action and a statement or a complete statement.  A statement is present when conduct tends to create a message.  Here the finger movement, is meant to convey a message and the entire action is a statement.  The statement, if true can tend to show that someone other than Dean killed Vicky, which exonerates Dean and meets the requirements of logical and legal relevance.

Fred's statement violates the rule against hearsay because the meaning of Hit's statement cannot be discerned without Hit's testimony.

Hearsay is defined above.  An exception to the rule against hearsay applies to unavailable declarants who make statements against penal interest.  Here, admitting to killing Vicky is against Hit's penal interest.  However, it is not immediately clear whether Hit is unavailable.  Even if he cannot be located the statement still fails as to the rule against hearsay because only the declarant can explain what he meant.  Any other interpretation of the situation is too speculative.

Therefore, since Fred's statement violates the rule against hearsay it is inadmissible.

Question 2: When Hal met Wendy (Community Property) California Bar Exam

This is a fastball question, which was kind of funny.  How many unpaid lawyers out there would love to be able to get mortgages on client property in exchange for legal services?  Actually California permits this in divorce proceedings (CFC 1102e).  Who knew?

Wendy and Hal are married and live in California. A year ago, Wendy told Hal that she would not tolerate his drinking any longer. She insisted that he move out of the family home and not return until he completed an alcohol treatment program. He moved out but did not obtain treatment.  
Last month, Hal went on a drinking spree, started driving, and struck a pedestrian. When Wendy learned of the accident, she told Hal that she wanted a divorce.  
Hal has consulted Lawyer about defending him in a civil action filed by the pedestrian. He is currently unemployed. His only asset is his interest in the family home, which he and Wendy purchased during their marriage. Lawyer offered to represent Hal if Hal were to give him a promissory note, secured by a lien on the family home, for his fees. Hal immediately accepted. 
1. Is Wendy’s interest in the family home subject to damages recovered for injuries to the pedestrian? Discuss. Answer according to California law.  
2. Is Wendy’s interest in the family home subject to payment of Hal’s legal fees? Discuss. Answer according to California Law.  
3. What, if any, ethical violations has Lawyer committed? Discuss. Answer according to California and ABA authorities.

I.  Community Property

California is a community property state.  All property and debts obtained in marriage is community property, except (i) property acquired prior to marriage; (ii) property acquired during marriage by gift or inheritance; and (iii) property designated as nonmarital through an agreement between spouses.. All property obtained by either spouse either before the marriage or after separation is separate property.  At divorce, each spouse is entitled to half of the community property and all of their separate property unless an exception applies.

Here, "Wendy and Hal are married...." Therefore community property laws apply.  They never divorced and never separatated.  However, Hal did "move[] out."  This is considered "living separately" under the California Family Code (CFC).

II. Wendy's interest in the home.

The issue is whether Pedestrian (P) can attach a money judgment to Wendy's interest in the family home.  Generally, the debts (such as tort judgments) of one spouse can be attached to any community property.  However, when "living apart" leads to "divorce" or separation, it is considered the constructive end of the marriage for the purpose of creditor.  Generally, Wendy's interest could not be touched.  However, if Hal and Wendy reconciles then they are no longer living apart and Wendy interest can be attached.  The disposition of this issue depends on future events that have yet to unfold.

III.  Wendy v. Lawyer

The issue is whether a spouse can mortgage the entire community property without another spouse being aware of this.  California does not allow only one spouse to encumber property for more than one year without the consent of the other spouse (CFC 1102).  Therefore the conveyance is invalid and Lawyer has no rights to Wendy's interest in the house.

IV. Lawyer issues

The issue is whether Lawyer violated the ABA Model Rules (MR) or California rules (CR).  Both MR and CR prevent a lawyer from using his position of influence to have an inverse adverse to a client.  Here, MR forbids a lawyer from having a simultaneous interest in property with a client without signed informed consent stating that the client had an opportunity to speak with another attorney. CR forbids a lawyer from taking an interest in a community asset except as payment for a dissolution action.  Lawyer has violated CR and MR by, at the very least, failing to obtain informed consent before entering into this self-interested transaction because Hal "accepted immediately".

Question 1: Red Car Hits Blue Car (Civil Procedure) California Bar Exam

This is a change-up federal civil procedure question.  Personal and subject matter jurisdiction have been tested many times, if you had some flash cards with the rules on them you were probably fine.  New to CBX is the issue of appellate standards of review.

One point of severe nastiness that I want to indicate.  The facts of the subject matter jurisdiction question are very similar to J. McIntyre Machinery, Ltd. v. Nicastro, which was decided a month before the bar exam.  If you believed the bar review companies who tell you that examiners do not test you on recently decided issues you were misled.  Alternately, the court was divided and both sides have strong arguments, so if you went either way with it you are probably fine.

The strategy point here is how to handle your time.  This question probably took 35-45 minutes to write.  I  would recommend finishing early and moving on.  If you read ahead, you probably noticed that question three is the fastball and you are going to need to make up time somewhere for it.

From the California State Bar:

Pam and Patrick are residents of State A.  While visiting State B, they were hit by a truck owned and operated by Corporation, a freight business.

Corporation is incorporated under the laws of Canada and has its headquarters there, where its President and Secretary are located.  State B is the only state in which Corporation conducts its business.  Corporation’s drivers and other employees work out of its warehouse in State B.

Pam and Patrick jointly filed a lawsuit against Corporation in federal district court in State A.  In their complaint, Pam demanded damages for personal injury in the amount of $70,000 and for property damage in the amount of $10,000; Patrick demanded damages in the amount of $6,000.

Corporation filed a motion to dismiss the complaint for lack of personal jurisdiction.  The federal district court denied the motion.  After trial, it entered judgment for Pam in the amount of $60,000 and for Patrick in the amount of $4,000.

Corporation has appealed on the grounds of lack of subject matter jurisdiction and lack of personal jurisdiction.
How should the court of appeals rule on each ground?  Discuss.
I would start with appellate standards of review and then take each issue individually.

I'll discuss after the jump.

My answers to the July 2012 California Bar Exam

So, a funny thing happened the other day. Some people were in the elevator with my wife and asked about whether I would write a series of posts on the July 2012 California Bar Exam similar to the posts I wrote for the July 2011 California bar exam.

As I noted then, there are four general kinds of questions:

Fastballs – your typical issue spotting racehorse question – typically Torts, Contracts, Evidence, Real Property, Wills/Trusts or Civil Procedure. The principles are usually straightforward.

Change-ups – a short question on a very particular area of law – typically Constitutional Law, Criminal Procedure or Business Associations.

Curve-balls – a question that twists a two principles together. Here, you need to resolve the first part correctly, in order to resolve the second part.

Screw-balls – a nasty question that both focuses on a narrow area of law and does not contain the facts necessary to answer the question. Skilled exam takers will read “inferences” into the fact pattern in order to fill in the gaps. Less skilled exam takers will make up a rule based on the facts presented.

Here are links to my other posts on the questions themselves:

Question 1: Red Car Hits Blue Car (Civil Procedure)
Question 2: When Hal met Wendy (Community Property)
Question 3: Can I get a witness? (California Evidence)
Question 4: Who wants to be a Dental Hygienist (Contracts, Remedies)

Friday, May 18, 2012

Debriefing the February 2012 Bar Exam

The California State Bar has just released the results to the February 2012 California Bar Exam and I am once again writing about how well one must due to pass.  Different bar review companies offer percentage estimates ranging from 65% to 70%.  I tabulated some statistics from the February 2012 California Bar Exam and reached different results.

For the uninitiated, the exam consists of three components over three days.  On the morning of the first and third day, exam takers attempt three essay questions and have three hours to complete the task.  These essays very widely in depth and breadth of subject matter, some involve a large number of issues that require cursory treatment, others involve a very specific issue that requires extensive treatment.  On the afternoon of the first and third days exam takers attempt the California Performance Test (CPT) which is a three-hour writing assignment.  Each essay is worth 100 points and each CPT is worth 200 points for a total raw score of 1000 points.  That score is scaled.  On the July 2012 exam, the range of possible scores was 40-100 and the average score (by my calculation) was a 61.1 which is one point higher than it was in on the February 2011 Exam and one point lower than it was on the July 2011 Exam.  The total number of points that could be earned was then scaled with the following formula:
Scaled written score = (Raw written score x  3.1541 ) – 529.503
The scaled written score is then multiplied by .65 to get the total number of essay points toward the final score.  The second day of the Bar exam consists of 200 multiple choice questions on the Multistate Bar Examination (MBE).

The scaling is:

Scaled MBE Score = 3.5 * (43 + (Raw score x (.8 or .9)))

Notably, this MBE issue had a higher mean number of correct questions up to 122 last February and 127 in July to 128. This is probably because the exam was easier.  As shown below, an exam taker could score an average of 70 on the essays (9 points above average) and would still need 77 MBE questions correctly answered which is higher than it has been in the last two administrations. On the February 2011 exam, an exam taker with an average essay score of 70 (ten points above average) would have to answer 75 MBE questions correctly to pass.

Here is a chart that shows what I am talking about.  The green line represents the 5th percentile of exam takers, the red line represents the 95th percentile of exam takers.  As I have mentioned before, one of my theories is that February scores are, on average, lower, because fewer people decimate the exam with a score of 1600 or higher.  Here, 326 people did that well, which is proportional with the number on the administration in July (570 of 8456).  Sure some people did better or worse, but 90% of exam takers fall between those two lines.  The blue line is set of passing scores showing the average raw essay on the x-axis and the average raw MBE on the y-axis.  The horizontal line is the California average MBE raw score (128), and the vertical line is my guess as to the average essay score (61.1).  Similar to February 2011, the average exam taker failed, but not by much.

By my math if you scored a 62.5 as an average essay and 132 raw on the MBE, you would have passed the exam. Which is much more than was required in July 2011.