How to Conquer Wills on the California Bar Exam
Wills is regularly tested on the California Bar Exam. The California Examiners test the same issues semi-frequently, so it is worth it to be aware of what these issues are.
Here, we tell you how to approach Wills on the California Bar Exam, including some of the highly tested issues in Wills questions.
Wills on the California Bar Exam
1. First, know how Wills is tested.
On California essays, the general rule is that you are supposed to apply general principles of law unless instructed otherwise. However, virtually every bar exam in the last 15 years has asked examinees to apply California law with regard to Wills questions.
Wills is tested every year to every year-and-a-half on the California Bar Exam. It is frequently tested in conjunction with Trusts. So, don’t be surprised if you see a Wills/Trusts crossover question.
2. Be aware of the highly tested Wills issues.
The State Bar of California tests certain issues over and over again in Wills questions. (We have a nice summary of these in our California Bar Exam One-Sheets.)
Some of the “favorite” California Bar Exam issues on Wills essay questions include the following:
- Intestate succession (know how separate property is divided if a decedent dies without a will but leaves behind a spouse and/or child[ren])
- Execution of a valid will: In California, the will must be in writing, and signed by a testator in the joint presence of two witnesses who understand that the instrument they sign is the testator’s will. The testator also must be 18 years old or older and intend that the document is his will. In California, a will is valid if it is signed by an interested witness. However, unless there are two disinterested witnesses present, there is a presumption of duress, menace, fraud, or undue influence if the will makes a gift to the interested witness. If the presumption is not rebutted, then the witness may not take more than he would have received had the testator died intestate.
- Holographic wills (a bar exam favorite!): a will is recognized as valid if it is signed and the material portions are in the testator’s handwriting.
- Codicils: A codicil is a supplement to a will that modifies it, adds to it, explains it, or revokes it. A codicil generally must be executed in the same manner as a will.
- Revocation by execution of a new will, physical act, or operation of law: a will may be revoked by the execution of a new will or by some other physical act, such as cancellation or other writings on the will.
- The pretermitted (or omitted child) doctrine: A pretermitted child is one that is not named in the testamentary instrument because the child was not yet born at the time the will or testamentary instrument was written. In California, this also covers a child who the testator believed was dead or if the testator was unaware of the child’s birth. Generally, the child will receive their intestate share unless they were intentionally omitted, all (or substantially all) other assets were given to the other parent, or other assets were given to the child in place of a gift given by the will.
3. Be comprehensive in your Wills answer.
Remember to state the rule and its exceptions before applying it.
For example, execution of a valid will is frequently tested in California Wills questions. If you see a will that does not follow the formal requirements for executing a will under California law but may be valid as a holographic will or otherwise valid, first always discuss the formal requirements for will creation before discussing the requirements for a holographic will or the harmless error doctrine. This makes your answer complete!
Further, if you see a pretermitted child issue, define pretermitted child (i.e., one that was not yet born at the time the will or trust was written). Then state the general rule: “The child is generally entitled to whatever share of the testator’s estate the child would have received if the testator had died intestate.” Then, state the exceptions (i.e., if all assets are given to the child’s other parent, if the child was intentionally omitted, or if the child was taken care of outside of the will). This will make your answer thorough, complete, and maximize your points!
4. Be aware of key Wills vocabulary.
You should be familiar with key Wills terms.
- Ademption (failure of a gift)
- Codicil (a supplement to a will that modifies, adds, explains, or revokes a will)
- Descendant or issue (all lineal descendants—children, grandchildren)
- Devise or legacy (a fancy word for “gift” left by a will)
- Disclaim (to reject a gift, usually for tax purposes)
- Heirs (those who inherit property when the testator dies intestate—i.e., without a will)
- Intestate (to die without a will)
- Predecease (to die before someone)
- Testate (to die with a will)
- Testator (a person who dies with a will)
Being familiar with key vocabulary will help you gain credibility with the grader and it will help you maximize your bar exam essay score!
The best way to excel at Wills questions is to practice writing answers to essay questions. This will help you become acquainted with how Wills is tested. And, it will help you master the highly tested issues.
Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Wills essay questions:
- February 2017 essay question and student answer (see essay question #1 on the exam)
- July 2013 essay question and student answer (see essay question #5 on the exam—this is a crossover question with Trusts)
Good luck studying for the California Bar Exam!
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