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FEB 2015 CBX FORUM DISCUSSION
Last Post 05/12/2015 10:12 AM by una pregunta
14 Replies
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05/10/2015 9:19 AM
Author: Wrangler [21813]
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05/10/2015 1:32 PM
Author: Re: Feb Essays [21813]
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Well...that was a nice reminder of what a cluster fuck of essays CA dropped...

The Wills & Trust question was Elder Abuse...CA tested it once in the past...it's a big thing...and the bar publishes a handout on it...it has also increased in frequency in recent years...with elder abuse the standard is clear and convincing evidence and the abuser is typically serving in a fiduciary capacity...administrator...etc...and will be treated as having predeceased the testator...it's also criminal...and there were a bunch of other discussable issues...

For the trees Q...equitable owner...injunction to prevent the other pending transfer...valid K? Mutual mistake? Etc...

My point...there were MANY ways all of the questions could have been approached...and I'm sure each grading pod will have a different grading sheet.

This exam was a fuck you to BarBri...I sense CA is delivering a message to the larger bar preps...and to candidates to not regurgitate a template, but to "think" like a lawyer.

I think this exam was designed to be loaded with a bunch of stuff to offset the possibility of a big MBE curve...they will give it a nice scaling...but fucked us with the essays to keep the pass rate in check...although if you thought through it and got creative you are probably "ok"...there were many was to argue the Qs...wait until you see BarBri's debrief of the essays and what CA releases as passing answers...they will be all over the place...

I do agree with one posters comment that if you hit it hard in the opening of each essay you will probably be able to hedge missed issues, etc...

And...the reality is the graders take these things home and without a question can be distracted, tired...watching TV, etc...it's all bullshit.

For the hundreds of hours of bar prep and thousands of dollars, the essays and PTs should be graded in a state bar office or temporary facility with the graders monitored so there is a check and balance that each answer is being thoroughly evaluated...we have to sit in one spot and be monitored...why shouldn't they?

Lastly, everyone passes by the skin of their teeth...that's the reason passing scores are not released...

I wish everyone the best come Friday.


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05/10/2015 2:21 PM
Author: My mum is dead [21813]
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Well, hot damn! I put in elder abuse and figued the age of the testator set it off. It wasn't worded in a way you could rely on Cheat Sheets to BS your way through it.

Same with Q# 3, cheat sheets wouldnt help you on that either. Notice no more obvious Civ Pro Q's with PJ and SMJ and shit you can template your way through? If you used their Erie template you'd run out of time.

RP#2 cheats sheets helped to navigate that bad boy. But it was coupled with critical pass to squeeze out the little drips.

I knew if I relied too much on templates I'd be fucked.

I over studied the MBEs knowing that aiming for 80%++ would leave room to CYA for grader haters.




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05/10/2015 2:34 PM
Author: LawJunky [21813]
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That's an excellent recap of the questions and issues. Thanks very much

LJ


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05/11/2015 11:53 AM
Author: Grandpa [21813]
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Wow! Elder Abuse. Who would have thought?!?! I sure as hell didn't.

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05/11/2015 2:26 PM
Author: Re: Elder [21813]
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Yes...

That's what it was...see BarEssays...it was tested before and is a big issue in CA...Google the term "Elder Abuse California Bar"

Everyone went for undue influence...etc. Not really the issue...The bar examiners deliberately stuck it to everyone on that one.


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05/11/2015 5:45 PM
Author: well [21813]
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Posted By Anonymous on 05/11/2015 2:26 PM
Yes...

That's what it was...see BarEssays...it was tested before and is a big issue in CA...Google the term "Elder Abuse California Bar"

Everyone went for undue influence...etc. Not really the issue...The bar examiners deliberately stuck it to everyone on that one.




Undue influence is a big issue in elder abuse. It goes hand in hand with capacity.

"Elder abuse" is very broad and covers many areas...

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05/11/2015 7:01 PM
Author: undue influence [21813]
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Uou are correct...undue influence is a big issue and only one component of elder abuse and not always present.

Undue influence must generally be mental, physical or both...the fact pattern did not reveal any mental or physical issues...the administrator had the will drawn up but signed it himself under another name if I recall correctly...

If undue influence was mentioned in an answer it should be quickly dismissed in favor of elder abuse with the bad actor named in the will being treated as having predeceased the testator.

It's Elder abuse...he named himself and signed it himself...no gun was to granndma's head...the hook was he was appointed as administrator...did he have authority? ...if so why did he name himself and sign for her...?

Sorry...but no question...elder abuse was the big ticket item...

If you went down the path of UI, then you're probably fine if you found it missing but concluded with some type of wrong made and sonny boy doesn't take.

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05/11/2015 9:57 PM
Author: UI [21813]
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Under CA law, where the drafter is also a beneficiary, there is a presumption of undue influence. So undue influence was an issue.

Too late now as results are out this Friday.

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05/11/2015 11:02 PM
Author: Buse [21813]
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d. Undue Influence

There are three ways of establishing undue influence.

At common law, to make a prima facie case for undue influence, the claimant must show (1) the testator has a weakness that made him susceptible, (2) the wrongdoer had access to the testator, (3) it is the wrongful act that got the gift, and (4) an unnatural result. Where the plaintiff prevails, only that portion of the will affected by undue influence is invalid. That part goes to the residuary, the heirs by intestate succession, or by constructive trust.

In the alternative, a claimant may establish undue influence by the use of a presumption. Under California law, a presumption of undue influence arises when (1) a confidential relationship exists between the testator and the wrongdoer, (2) the wrongful act got the give, and (3) an unnatural result. The consequences here are the same as the common law test.

Finally, a claimant may rely on statutory undue influence. California generally invalidates a donative transfer from the testator to (1) a person who drafted the instrument, (2) a person in a close relationship with the drafter, or (3) a person who is in a fiduciary relationship with the testator. However, these rules do not apply if the testator is related to, married to, or co-habitats with the drafter or if the instrument is reviewed by an independent attorney who counsels the testator. Upon a finding of statutory undue influence, the devisee does not take the gift, but only to the extent that the gift exceeds that person’s intestate share.

http://www.law.stanford.edu/sites/d...ningps.doc


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05/12/2015 6:34 AM
Author: UI & Elder Abuse [21813]
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Bars to succession...Will Challenges:

Elder Abuse:
"A person who is found liable by clear and convincing evidence of abuse will be treated as s/he predeceased decedent. Includes physical abuse, neglect or fiduciary abuse." - CA Essay Writing, Basik

Undue Influence:
"Undue influence is mental or physical coercion exerted by a third party with the intent to influence the testator to lose control of judgment. A will may be invalidated in whole or in part when the: (1) testator is susceptible to being influenced, (2) third party has motive to benefit, (3) third party has opportunity to influence, and (4) third party causes unnatural result." - Bar Essays.com Model Answer

I think the hook was fiduciary abuse.

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05/12/2015 7:48 AM
Author: YOLO [21813]
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6. Fraud or undue influence is presumed in an instrument making a donative transfer to:
a. The person who drafted it
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e. Exception to the presumption include:
1. When the beneficiary is a blood relative.
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f. The presumption can be rebutted by clear and convincing evidence.

Essay Exam Writing for CA Bar Exam, Mary Basick

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05/12/2015 8:19 AM
Author: Hope this helps [21813]
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BOTH ELDER ABUSE AND UNDUE INFLUENCE APPLY.

Per Barbri (see long outline) under "Prohibited Beneficiary" section.

"PERSONS WHO ABUSE OR NEGLECT ELDER OR DEPENDENT ADULTS

Any person who has committed physical abuse, neglect or fiduciary abuse of an elder or dependent adult is prevented from receiving property from the victim's estate. The person who committed the abuse or neglect is deemed to have predeceased the decedent if all the following circumstances can be proven

1. The act of abuse or neglect has been proven by clear and convincing evidence
2. The person acted in bad faith
3. The person acted recklessly, oppressively, fraudulently or maliciously in committing the act; and
4. The decedent was substantially unable to manage his financial resources or resist FRAUD or UNDUE influence from the time that acts occurred until the time of death

Compare - undue influence
These elder abuse provisions differ from the doctrine of undue influence in that they act to void any gift to an abuser, whereas a finding of undue influence acts to invalidate the will or a portion thereof. NOTHING IN THE STATUTE PREVENTS A CONTESTANT FROM ARGUING BOTH UNDUE INFLUENCE AND ELDER ABUSE." (caps for emphasis)

I believe to get full points, both elder abuse and undue influence (drafter as beneficiary) needs to be discussed. If you argue one without the other, you still get credit.

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05/12/2015 9:04 AM
Author: Re: Hope this helps [21813]
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I fully agree with the above poster...

Both apply as I have stated...and both will get credit...probably a little more if both are discussed...but who really knows...or cares if we pass.

The reality is each grading pod will assign their own weight to what they think its worth...there are 120 graders...and its all up to the grader that gets your essay...mood, fatigue, what they read just before your essay...all of it makes it into the mix.

So who knows...but knowing CA they will likely weight it toward the concept most likely missed or discussed little...its what they do.

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05/12/2015 10:12 AM
Author: una pregunta [21813]
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Just wondering about the essay pile.

This is insane, but I have often wondered the order they grade. If it takes the NCBE 3-4 weeks to give MBE scores and its likely that attorney applicants go first since no MBEs are required (their essays are the ones used in calibration sessions--which is usually the model answers)

So, they have attorneys first, passing MBE pile next and below par MBEs last, which explains the multitude of 50/55's because they know the quota early on.

The attorney pass rate in Feb is usually around 50% constantly.

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