Wills on the California Bar Exam
Wills is regularly tested on the California Bar Exam. The California examiners frequently test the same issues, so it is worth knowing 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 the California Bar Exam, examinees are virtually always instructed to apply California law on Wills essay questions.
Wills is tested every year to every year-and-a-half on the California Bar Exam. Wills is sometimes tested alone but is often combined with Trusts or Community Property.
2. Be aware of the highly tested Wills issues.
The California Bar Exam tests certain issues repeatedly in Wills questions. (We have a nice summary of these in our California Bar Exam One-Sheets.)
Some of the most highly tested Wills issues on the essay portion of the California Bar Exam include the following:
- Intestate succession: This is often tested on the California Bar Exam in two situations. First, if there is no surviving spouse and only children, the children will receive equal parts (per capita) of the estate. Second, if there is a surviving spouse and more than one child, the spouse will receive 1/2 of the community property and quasi-community property (because the spouse already owned 1/2 of the community property) and 1/3 of the separate property. The children will receive equal parts (per capita) of the remaining 2/3 of the separate property.
- 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: in California, 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 the will, 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 doctrine 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 essay answer.
When writing an answer to a Wills essay, remember to state the rule and its exceptions before applying the rule.
For example, execution of a valid will is frequently tested on Wills essay questions on the California Bar Exam. 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 under the harmless error doctrine, first discuss the formal requirements for will creation before discussing the requirements for a holographic will or the harmless error doctrine. This will make 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 was executed). Then state the general rule that 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 received gifts or assets outside of the will). This will make your answer thorough and help 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, etc.
- Devise or legacy: a fancy word for a gift left by a will
- Disclaim: to reject a gift, usually for tax purposes
- Heirs: those who inherit property when the testator dies intestate
- 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 Wills vocabulary will help you gain credibility with the grader and will help you maximize your California Bar Exam essay score!
The best way to excel at Wills essay questions is to practice writing answers to essay questions. This will help you become acquainted with how Wills is tested and 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 2019 Wills essay (combined with Community Property and Trusts): this essay applies California law and covers execution of a valid will, conflict of laws, codicils, testamentary capacity, and nonprobate transfers (see essay question #1 on the exam).
- February 2018 Wills essay (combined with Community Property): this essay applies California law and covers facts of independent significance, a pretermitted spouse, intestacy, an omitted child, and antilapse statutes (see essay question #5 on the exam).
- February 2017 Wills essay: this essay applies California law and covers execution of a valid will, revocation of a will by physical act, holographic wills, ademption, and intestacy (see essay question #1 on the exam).
- February 2015 Wills essay (combined with Trusts): this essay applies California law and covers execution of a valid will, revocation of a will by physical act, testator capacity, and undue influence (see essay question #6 on the exam).
Good luck studying for the California Bar Exam!
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