Bar Exam Boot Camp Session Two

Common Mistakes Answers that are too conclusory. Use the facts. Lack of clear rule statements Missing the life estate issue Confusing testamentary intent v. creation of a life estate

Skills done well Most did a good job on the first question – listing the elements and addressing each element. Great answers used headings that made an argument.

Sample Answer (1)The court should rule that Billy Bob’s will is valid. Under the Texas Estates Code, a valid holographic will must be written entirely in the testator’s handwriting, be signed by the testator and must indicate testamentary intent. Because Billy Bob handwrote the entire will and signed the will, the first and second elements are satisfied. Finally, Billy Bob clearly indicated testamentary intent by using the words “Upon my death,” and then indicating a disposition of real and personal property. It does not matter that the will is not dated or witnessed or that it is written on a cocktail napkin; holographic wills do have the same requirements as a formal will. Because the contents of the cocktail napkin satisfy all of the necessary elements of a holographic will, Billy Bob’s will is valid. (2)Billy Bob’s estate should pass to Donna’s estate in fee simple. The issue is whether Billy Bob’s will gave Donna a life estate only or whether he gave all of his real and personal property to her in fee simple. To create a life estate, a testator typically uses the words, “To X for life,” but the wording need not be exactly the same. An outright granting of property without any qualifying language transfers property in fee simple. In this case, there appears to be both types of language used. Billy Bob states that “Donna gets everything till she dies” which would seem to create a life estate. However, Billy Bob also wrote “I leave to Donna all real and personal property” without a qualifier. This non-qualified language transfers property outright. There is a presumption in Texas that a testator intends to completely dispose of his entire estate rather than having any portion pass by intestacy. Because Billy Bob is a layman, it is unlikely that he understood the potential legal implication of the phrase “till she dies.” Because it is presumed that the testator wants to completely dispose of the estate, the court should place greater weight on the second sentence, which devises all of Billy Bob’s property without qualifiers to Donna. Billy Bob’s estate should transfer to Donna’s estate. Wanda takes nothing.

Point one (1)The court should rule that Billy Bob’s will is valid. [Conclusion] In Texas, a holographic will must be written entirely in the testator’s handwriting, signed by the testator and indicate testamentary intent. [Rule] Billy Bob handwrote the entire will and signed the will, so the first and second elements are satisfied. [Analysis of elements one and two] Finally, Billy Bob clearly indicated testamentary intent by using the words “Upon my death,” and then indicating a disposition of real and personal property. [Analysis of element three] It does not matter that the will is not dated or witnessed or that it is written on a cocktail napkin; holographic wills do have the same requirements as a formal will. [Additional analysis] Because the contents of the cocktail napkin satisfy all of the necessary elements of a holographic will, Billy Bob’s will is valid. [Conclusion]

Point Two (2) Billy Bob’s estate should pass to Donna’s estate in fee simple. [Conclusion] The issue is whether Billy Bob’s will gave Donna a life estate only or whether he gave all of his real and personal property to her in fee simple. [Issue statement] To create a life estate, a testator typically uses the words, “To X for life,” but the wording need not be exactly the same. An outright granting of property without any qualifying language transfers property in fee simple. [Rule] In this case, there appears to be both types of language used. Billy Bob states that “Donna gets everything till she dies” which would seem to create a life estate. However, Billy Bob also wrote “I leave to Donna all real and personal property” without a qualifier. This non-qualified language transfers property outright. [Analysis]

Point Two cont. There is a presumption in Texas that a testator intends to completely dispose of his entire estate rather than having any portion pass by intestacy. [Rule] Because Billy Bob is a layman, it is unlikely that he understood the potential legal implication of “till she dies.” [Analysis] Because it is presumed that the testator wants to completely dispose of the estate, the court should place greater weight on the second sentence, which devises all of Billy Bob’s property without qualifiers to Donna. [Analysis] Billy Bob’s estate should transfer to Donna’s estate. Wanda takes nothing. [Conclusion]

Working with rules Simple rules – If A, then B – Think strict liability If you sell alcohol to a minor, you’re guilty a crime. Doesn’t matter if they presented fake ID or looked 40. If answer filed within 20 days of service, answer is timely. If not filed within 20 days, not timely. Elemental Rules (most common) – Example: Battery (1)intent, (2) touching, (3) touching must be harmful or offensive, and (4) must be done to another. Make sure you know the rule for each element. Elements often have sub-elements (i.e. what’s harmful or offensive? Transferred intent?) Factor Rules – If A, B and C weighed together justify Z, then Z. – A, B and C are factors. Unlike elements, you need not satisfy each one, but weighed together they get you to Z. – Example: Material Breach in contract law. Consider (1) Extent to which injured party will be deprived of expectation, (2) Extent to which injured party can be adequately compensated (3) Extent to which party failing to perform will suffer forfeiture, (4) Likelihood party failing to perform will cure his failure, and (5) Extent to which behavior of party failing to perform comports with duty of good faith and fair dealing.

Working with rules, cont. Rules with Exceptions – If A, then B, unless Z. – Look for “unless, “except,” “but,” and “but if.” – Example: Recovery of Property taken via fraud – a person who has been induced by fraudulent misrepresentations to transfer title may recover the property UNLESS the person in possession was a bona-fide purchaser of the property. – Partners may not bind partnership without actual authority UNLESS an innocent third-party Vendor has reason to believe the partnership is bound. Alternative Rules – If A or B, then Z. – Look for “either” and “or.” – Example: Punitive damages may be awarded if the defendant exhibits fraud or malice. – A partner may violate his duty of loyalty to a partnership if he directly competes with the partnership. Duty is also violated if partner uses partnership property to gain profit and does not share that profit with the partnership.

Today’s Assignment We’ll have 35 minutes to allow you to do these extra things After each sentence, mark it (C), (I), (R), or (A). When you make rule statements, indicate, in parentheses after the sentence, what type of rule it is. (R – elemental)