MBE Strategies Blog Post Series
Welcome to our MBE tips and tricks blog post series! In this post, we cover a Real Property MBE question. Many students find that Real Property MBE questions are among the hardest. You will see 25 scored Real Property MBE questions on the Multistate Bar Exam.
We will be posting a Multistate Bar Exam question once every couple days along with an answer during this bar exam season. Note that these are MBE questions that students commonly get wrong. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each post will cover one highly-tested area of substantive law as well as an important MBE strategy.
Today, we will review a Real Property MBE question on future interests. We will also go over how to “study smart” when you study for the MBE portion of the bar exam by studying what is most commonly-tested.
Do your best to answer this question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices.
Then, you can uncover the Real Property MBE answer as well as read more about our MBE strategy of the day — to spend more time on the topics that are highly-tested.
Real Property MBE Question
Testator devised his home “to my son for life, then to my son’s children and their heirs.” Testator’s son, a 70-year-old widower, had one unmarried adult son and one unmarried adult daughter.
In an appropriate action to construe the terms of the will, the court will determine that the remainder to the children is:
(A) Indefeasibly vested.
(C) Vested, subject to partial divestment.
(D) Vested, subject to total divestment.
Legal Rule and Analysis: (If you need to look at your outline to find the legal rule, feel free to use it when you have not yet memorized the subject. Using your outline will help you actively learn and memorize your outline!)
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to Real Property MBE Question:
Common Mistake: Students forget that in Real Property, anything can happen! 70-year-old widowers can have children!
Subject: Real Property
Legal Issue: What is the gift given to the children?
Legal Rule and Analysis: The life estate to the son is a present interest. The gift to the son’s children is a future interest. The gift to the son’s children is a remainder because it follows a life estate. (Remember that remainders virtually always follow a life estate on the MBE!) Note that the children are not named so the gift is a class gift – and so long as the son is alive (plus nine months) the class is still open. The question is whether the remainder to the children is vested or contingent.
A remainder is “vested” if the grantee is ascertained and the remainder is certain to become possessory. A remainder is “vested subject to partial divestment” if it is a class gift where one or more grantees are certain to take the gift but may have to share it with others. A remainder is “contingent” if the person to whom the remainder is given is (mnemonic = “UUU”) unborn, unascertained or if they are uncertain to take due to a condition precedent.
In this case, the son’s children are alive, ascertained, and there is no condition upon their taking the gift. Thus, it is a vested interest. Is it subject to divestment? Yes, because, in theory, even though the son is 70 years old and unmarried, he could still have more children. The son’s son and daughter will take a portion of the interest but a future child could partially divest them of their interest. That is, it could affect the amount that the son and daughter get.
Conclusion: The remainder is vested subject to partial divestment (perhaps by a later-born child).
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:(C) is correct. (A) is incorrect. The children may have to share their estate with potential future children. Thus, it is not indefeasibly vested. (B) is incorrect. The children are ascertained and there is no condition to their taking. Thus, this is not a contingent remainder. (D) is incorrect. A future child would not take the entire gift away from the son’s son and daughter (as “subject to total divestment” signifies); the future child would simply share in their gift.
MBE Tip: Spend time on the highly-tested areas: Not all of MBE topics are tested equally. If you didn’t answer this question correctly and you hate present and future interests, that is okay! Remember that the MBE is broken into seven subjects: Criminal Law, Constitutional Law, Contracts and Sales, Civil Procedure, Evidence, Real Property, and Torts. There are 25 scored questions on each subject. The subjects themselves are thus weighted equally. The topics, however, are not.
Below is the breakdown of the multiple-choice questions. We’ve written the approximate number of questions you can expect to see on each topic and we’ve highlighted the highly tested topics in blue font.
Check out our post on highly tested MBE topics here.
TORTS: (25 QUESTIONS)
- Negligence – 12-13 questions
- Strict Liability and Products Liability – 3-5 questions
- Intentional Torts – 3-5 questions
- Other Torts – 3-5 questions
EVIDENCE: (25 QUESTIONS)
- Relevancy and Reasons for Excluding Relevant Evidence – 8-9 questions
- Hearsay and Circumstances of its Admissibility – 6-7 questions
- Presentation of Evidence – 6-7 questions
- Privileges and Other Policy Exclusions – approx. 2 questions
- Writings, Recordings, and Photographs – approx. 2 questions
REAL PROPERTY: (25 QUESTIONS)
- Real Estate Contracts – approx. 5 questions
- Mortgages/Security Devices – approx. 5 questions
- Ownership of Property – approx. 5 questions
- Rights in Land – approx. 5 questions
- Title to Property – approx. 5 questions
CONTRACTS AND SALES: (25 QUESTIONS)
- Formation of Contracts – 6-7 questions
- Performance, Breach, and Discharge – 6-7 questions
- Defenses to Contract Enforceability – 3-4 questions
- Parol Evidence and Interpretation – 3-4 questions
- Contract Remedies – 3-4 questions
- Third-Party Rights – 3-4 questions
(About 6-7 of the questions will be on UCC Article 2 and revised Article 1)
CIVIL PROCEDURE (25 QUESTIONS)
- Jurisdiction and Venue – 5-6 questions
- Pretrial Procedures – 5-6 questions
- Motions – 5-6 questions
- Law Applied by Federal Courts – 2-3 questions
- Jury Trials – 2-3 questions
- Verdicts and Judgments 2-3 questions
- Appealability and Review – 2-3 questions
CRIMINAL LAW AND CRIMINAL PROCEDURE: (25 QUESTIONS)
- Constitutional Protections of Accused Persons (Criminal Procedure) – 12-13 questions
- Homicide – 3-4 questions
- Other Crimes – 3-4 questions
- Inchoate Crimes, Parties – 3-4 questions
- General Principles of Criminal Law – 3-4 questions
CONSTITUTIONAL LAW: (25 QUESTIONS)
- Individual Rights – 12-13 questions
- The Nature of Judicial Review – 3-5 questions
- Separation of Powers – 3-5 questions
- The Relation of Nation and States (Federalism) – 3-5 questions
You can see that not all topics are treated equally on the MBE. This has significant implications for how you should approach it. For Torts, there are 12-13 questions on negligence (this makes up half of the Torts questions, and 6-7% of the entire MBE). So negligence should be your focus when you study Torts. Similarly, when you study Evidence, focus on relevancy, hearsay and the presentation of evidence as these three topics alone will make up a subtantial amount of MBE questions.
You will see that some subjects, like Real Property, are divided somewhat equally in terms of what is tested. This means that if you are really struggling with, say, present and future interests when you answer Real Property MBE questions (like the above question!), that will likely not significantly change your score as it is not heavily tested on the multistate bar exam (only being 2-3% of the questions, if that). Further, present and future interests are not heavily tested on the essay portion of many state bar exams (including the UBE).
Key Takeaways for the day:
Takeaway for the Law: A remainder follows a life estate. A remainder is “vested” if the person is ascertained and the remainder is certain to become possessory. A remainder is “vested subject to partial divestment” if it is a class gift where one or more persons are certain to take the gift but may have to share it with others. A remainder is “contingent” if the person to whom the remainder is given is (mnemonic = “UUU”) unborn, unascertained or if they are uncertain to take due to a condition precedent.
Takeaway for Practicing: Spend more time studying the MBE topics that are highly-tested!
If you have trouble with something like negligence or hearsay, it is worth it to seek out extra help or private tutoring. (If you struggle with something like present and future interests, or presentation of evidence–while still important–it is not as important as the topic areas listed above!)
If you would like to see “MBE tip of the day” posts from prior days, please click on the links below:
- MBE Strategies: Day 1 – Torts (negligence)–and how to approach MBE questions.
- MBE Strategies: Day 2 – Criminal Law (homicide) — and learning through “wrong” answers.
- MBE Strategies: Day 3 — Evidence (hearsay) –and memorizing the details!
- MBE Strategies: Day 4 – Contracts and Sales – and spending time on the subjects that are difficult for you.
- MBE Strategies: Day 5 – Real Property (future interests) – and spending time on the highly-tested areas of law.
- MBE Strategies: Day 6 – Civil Procedure (summary judgment) – and eliminating incorrect answers.
- MBE Strategies: Day 7: Constitutional Law (political question, standing) – and how to answer a question correctly when you are in between two choices.
- MBE Strategies: Day 8: Evidence (hearsay, best evidence rule) – and why it is good to fine-tune your knowledge of the “red herring” areas of the law.
- MBE Strategies: Day 9: Torts (conversion) – and where to get actual released MBE questions!
- MBE Strategies: Day 10: Criminal Procedure (5th Amendment) – and how to pick between two answer choices.
- MBE Strategies: Day 11: Contracts (contract formation) – and what to do if you “overthink” questions.
- MBE Strategies: Day 12: Real Property (deed delivery) – and jotting out the fact pattern.
- MBE Strategies: Day 13: Civil Procedure (jurisdiction) – and “bringing it all together”.
- MBE Strategies: Day 14: Constitutional Law (taxing and spending) – and why to answer more Constitutional Law and Civil Procedure questions.
- MBE Strategies: Day 15: Constitutional Law (powers of congress) – and how to get better at Constitutional law questions.
- MBE Strategies: Day 16: Criminal Procedure (exclusionary rule) – and paying attention to the call of the question.
- MBE Strategies: Day 17: Evidence (character evidence) – and how to tell a civil case from a criminal case (and why it matters!).
- MBE Strategies: Day 18: Real Property (joint tenancy) – and how to get more Real Property questions right!
- MBE Strategies: Day 19: Civil Procedure (JAAMOL) – and how to learn Civil Procedure.
- MBE Strategies: Day 20: Torts (joint and several liability) – and tips on MBE default rules.
- MBE Strategies: Day 21: Evidence (hearsay) – and the importance of memorizing the law!
- MBE Strategies: Day 22: Contracts (formation) – and why you should not ignore the written portion of the bar exam!
- MBE Strategies: Day 23: Criminal Law and Procedure (and the importance of mens rea).
- MBE Strategies: Day 24: Constitutional Law (equal protection) – and the importance of writing incorrect answers down!
- MBE Strategies: Day 25: Civil Procedure (impleader) – and free released NCBE questions!
- MBE Strategies: Day 26: Real Property (future interests) – and learning the highly tested MBE topics.
- MBE Strategies: Day 27: Torts (intentional torts) – and the importance of learning rule statements.
- MBE Strategies: Day 28: Evidence (impeachment) – and how to keep impeachment, character evidence, etc. straight!
- MBE Strategies: Day 29: Criminal Procedure (line-ups) – and how charts can help you keep the 5th, 6th, and 14th Amendment straight!
- MBE Strategies: Day 30: Contracts (revocation of acceptance of goods) – and how finding patterns in your answer sheet can improve your score.
- MBE Strategies: Day 31: Constitutional Law (public v. private forum) – and last-minute MBE tips.
- MBE Strategies: Day 32: Torts (premises liability) – and eliminating incorrect statements of law.
- MBE Strategies: Day 33: Criminal Law (robbery) – and knowing your state vs. MBE distinctions.
- MBE Strategies: Day 34: Real Property (priority and recording acts) – and writing answers to the questions.
- MBE Strategies: Day 35: Torts (comparative negligence, joint and several liability) – and learning the theories behind the laws.
- MBE Strategies: Day 36: Contracts and Sales (recovering the purchase price) – and creating a timeline of events when answering MBE questions.
- MBE Strategies: Day 37: Constitutional Law (1st Amendment) – and making a diagram as you study.
- MBE Strategies: Day 38: Evidence (extrinsic evidence) – and learning the definitions of basic legal terms.
- MBE Strategies: Day 39: Civil Procedure (motion to dismiss) – and creating a timeline of the judicial process while studying.
- MBE Strategies: Day 40: Real Property (present and future interests) – and the importance of grammar.
- MBE Strategies: Day 41: Torts (battery) – and paying close attention to the call of the question.
- MBE Strategies: Day 42: Criminal Procedure (4th Amendment) – and why you shouldn’t skip straight to the narrow rules.
- MBE Strategies: Day 43: Criminal Law (burglary) – and why you need to know the elements of crimes!
- MBE Strategies: Day 44: Contracts and Sales (damages) – and answering the question in your head first.
- MBE Strategies: Day 45: Constitutional Law (interstate commerce and equal protection) – and paying attention to which entity is attempting to act.
- MBE Strategies: Day 46: Evidence (impeachment) — and how to identify the applicable evidentiary rule.
- MBE Strategies: Day 47: Civil Procedure (full faith and credit clause and preclusion) – and newly released NCBE civil procedure questions.
- MBE Strategies: Day 48: Civil Procedure (removal) – and understanding the policies behind the rules.
- MBE Strategies: Day 49: Real Property (eviction) – and the importance of paying attention to details!
- MBE Strategies: Day 50: Torts (trespass) – and the importance of memorizing the elements and categories of torts.
- MBE Strategies: Day 51: Evidence (lay witness testimony) – and avoiding distractions.
- MBE Strategies: Day 52: Civil Procedure (automatic disclosures) – and eliminating answer choices.
- MBE Strategies: Day 53: Torts (duty of a premises possessor) – and to not feel too sorry for vulnerable plaintiffs!
- MBE Strategies: Day 54: Real Property (equitable servitudes) – and finding differences in concepts.
- MBE Strategies: Day 55: Civil Procedure a bonus FIVE MBE tips!
- MBE Strategies Day 56: Constitutional Law (equal protection) – and memorizing the standards of review.
- MBE Strategies Day 57: Contracts (installment contracts) – and learning the nuances of the law.
- MBE Strategies Day 58: Criminal Procedure (5th Amendment) – and understanding the scope of constitutional rights.
- MBE Strategies Day 59: Civil Procedure (exception to final judgment rule) – and understanding the rules and their exceptions.
- MBE Strategies Day 60: Evidence (which law applies to privileges in federal court) – and the importance of knowing the law.
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