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transcript
VIRGINIA ESSAY WORKSHOP PROFESSOR MICHAEL DORAN
UNIVERSITY OF VIRGINIA SCHOOL OF LAW
OVERVIEW
Coverage of the workshop: Preparing for success on the Virginia Bar Exam essay questions
Five parts of the workshop
Preliminary topics
Specific method for answering essay questions
Analysis of a Virginia Bar Exam essay question and answer, part 1
Analysis of a Virginia Bar Exam essay question and answer, part 2
Summary
A. Format of the Virginia Bar Exam
DAY ONE: Virginia Day
o Day 1 has a three-hour morning session and a three-hour afternoon session
o Nine essay questions and ten multiple-choice questions
Morning: _______________ essay questions, grouped together
Afternoon: ____ essay questions and ______ multiple-choice questions, grouped
together
Manage your time wisely, assuming an average of 36 minutes per essay question
DAY TWO
MBE: Three-hour morning session with 100 multiple-choice questions, and a three-hour
afternoon session with 100 multiple-choice questions
B. Scoring
Maximum raw score for Day 1 is 100 points
o Each essay question on Day 1 is worth _______________ points
Each multiple-choice question on Day 1 is worth _________________ points
Passing score on the Virginia Bar Exam is a Total Scaled Score of ______________ points
o Total Scaled Score is equal to 0.6 x Day 1 scaled score plus 0.4 x Day 2 scaled score
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Three key points
o Day 1 is weighted more than Day 2
o Every essay on Day 1 counts
o Grading is NOT on a _______________________
Everyone who takes the Virginia Bar Exam at the same time can pass it
Aim for a good balance between success on Day 1 and success on Day 2 and a good
balance throughout Day 1
C. Subjects Covered by Essay Questions
Potential subject matter for the essay questions: _______________________
All the subjects that you are studying for the Virginia Bar Exam, including the subjects for the
Multistate, are fair game for the essays
Essay questions may cover any of the _______________________ subjects –
o Constitutional Law
o Contracts
o Criminal Law and Procedure
o Evidence
o Real Property
o Torts
o Civil Procedure
Essay questions may also cover any of the subjects specifically designated for testing by the
Virginia Board of Bar Examiners, including the _______________________ on the Multistate
subjects (which are specifically covered by Themis lectures and outlines)
o Agency
o Conflicts of Laws
o Corporations
o Creditors’ Rights
o Domestic Relations
o Equity
o Federal Civil Procedure
o Local Government Law
o Partnerships
o Personal Property
o Professional Responsibility
o Sales
o Secured Transactions
o Suretyship
o Taxation
o Trusts
o Virginia Civil Procedure
o Virginia Criminal Procedure
o Wills
Certain subjects tested more frequently than others
o The number one subject by far is _______________________
o Also frequently tested is _______________________
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o Other subjects often tested include: Wills, _______________________, Professional
Responsibility, Criminal Law, _______________________, and Contracts and Sales
o Somewhat less frequently tested subjects include: Corporations,
_______________________, Local Government Law, Partnerships, Personal Property,
Commercial Paper, and _______________________
o The least frequently tested subjects include: Criminal Procedure, Creditors’ Rights,
_______________________, Conflicts of Laws, Torts, Trusts, _______________________
_______________________, Evidence, and Suretyship.
Important implications of subject-matter coverage
o Give particular attention to the subjects that are highly likely to be tested
o The Virginia Board of Bar Examiners really likes to cover _______________________ in a
single essay question
D. General Approach to Preparing for Essay Questions
1. Study the substantive law for each subject
o Follow the Themis approach for each subject
o Use the Themis Directed Study calendar to stay on track
2. Practice writing essays
o First, practice writing essays with your notes in front of you and with no time limitation.
o Second, practice writing essays without your notes but with no time limitation.
o Third, practice writing essays without your notes and with a time limitation of
_______________________ minutes.
3. Submit all Graded Essays are assigned by Themis to your attorney grader
o Consistent feedback throughout the course
o Formalized practice
4. Practice the Themis multiple-choice questions
o Review Virginia law in short time
SPECIFIC METHOD FOR ANSWERING ESSAY QUESTIONS
A. Objectives in Answering the Essay Questions
Demonstrate that you know the _______________________, that you can apply the relevant
law to _______________________, and that you can reach the correct legal conclusion.
Virginia Board of Bar Examiners says that it is looking for you to
o To identify legal issues raised by hypothetical facts
o To separate _______________________ material from _______________________ material
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o To set out the legal rules applicable to the issues and the facts
o To present a reasoned analysis of the relevant issues in a clear, concise, and well organized
composition
o To reach a conclusion that follows from the _______________________
The focus of this workshop is on effective communication of your knowledge and analysis
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
Your mantra: clarity, _______________________, and _______________________
o CLARITY – your answer should be well organized and the writing should be easy to read
o ACCURACY – you should demonstrate that you know the relevant legal rule and that you can
apply that rule to the facts
o DIRECTNESS – state the answer directly and with _______________________
B. The Specific Method
1. Specific method should be the same as that used for law school exams
o TRAC – Topic, Rule, Analysis, Conclusion
o CRAC – Conclusion, Rule, Analysis, Conclusion
2. Reasons to use TRAC or CRAC
o Good for you
Ready-made structure
You won’t leave out any issues or rules
o Good for your grader
Everything is easy to find
Easier to grade an organized answer
o Good for your score
C. Important Details of Using TRAC and CRAC
o Step ONE: First read _______________________
o Step TWO: Read through _______________________ of the essay question
Relevant points
Who are the parties?
Is the case in federal court or Virginia state court?
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What type of contract is involved?
Underline key points and passages, and mark the essay up
Do not make any assumptions or infer any facts not given to you
o Step THREE: Make a summary of the full answer
The summary should be short
The summary should be organized around _______________________
For example, assume an essay question that describes a set of contractual dealings
between Plaintiff and Defendant
Assume that the call of the question reads as follows: “Is Plaintiff entitled to specific
performance against Defendant?”
Assume the facts indicate that there was no valid contract because there was no
consideration
Summary could look like this –
o Plaintiff not entitled to specific performance against Defendant
o Specific performance requires _______________________
o Valid contract requires offer, acceptance, and consideration
o No _______________________ in this case
o Therefore, no valid contact
o Therefore, no specific performance for Plaintiff against Defendant
Several related points
o If an issue has sub-issues, carry TRAC or CRAC down through the sub-issues
o The statement of the Topic or the Conclusion in TRAC and CRAC should contain
the _______________________
o The conclusion should always line up with the analysis
o Step FOUR: Write essay answer
The summary provides the skeleton of the answer
The essay should be heavy on reasoning and analysis
Several additional points
Aim for crystal clarity at all times
When stating a legal rule, make that clear
o Use a signal
o For example: “Under Virginia law, a valid contract requires the following
elements: offer, acceptance, and consideration”
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i. When you transition from the legal rule into the analysis, mark the transition
ii. If the analysis requires contrasting points, mark those points off with transitions
iii. The conclusion at the end of the essay should be strong and confident
o Step FIVE: Time permitting, go back over the essay question to make sure that you have not
left anything out or misstated anything
o Essay Scoring
Organization, identifying all relevant legal issues, strength of legal analysis, knowledge
of law, application of law to facts, and justified conclusion
Even if you cannot recall the exact legal rule, you can still get points for your essay
ANALYSIS OF A VIRGINIA BAR EXAM ESSAY QUESTION AND ANSWER, PART 1
A. Question (from the February 2015 Virginia Bar Exam)
Jane wanted to construct a new office building for her engineering firm in Richmond, Virginia. She asked
her friend, Ralph, a real estate agent, to help her find an appropriate parcel to purchase. Jane had
known Ralph since her childhood, and he had represented her in several past real estate transactions.
There was no written agreement between them.
Several times during 2012, Jane and Ralph visited a property owned by Sam and expressed an interest in
purchasing it. Sam was present during two of those visits. Jane introduced Ralph as her real estate
broker, and the three of them engaged in conversations about the property and the fact that access to
the parcel was over a common driveway shared with the owner of the adjoining property. Jane did not
then voice any concern about that fact.
On January 24, 2013, Ralph met with Jane and discussed the wording of an offer on Sam's property.
They agreed on the $300,000 price she was willing to offer, and Jane told Ralph that the deal would have
to be contingent on her obtaining a bank loan secured by a bond issued by the Richmond Economic
Development Authority. Jane objected to the common driveway on the property and told Ralph that the
offer would also have to be contingent on Sam's conveying to her the sole right to the use of the
driveway. Ralph said he would go back to his office, type the terms and contingencies onto a standard
form real estate contract, and return with it later in the day for her signature.
Back at his office, Ralph found a message that Sam had received a competing offer that he was about to
accept. He phoned Jane and told her she needed to act quickly if she wanted the property. She said that
he should go ahead, type up the offer, sign her name to it, and present it to Sam. He typed in the price
and the financing contingency; however, in the rush of the moment, he omitted the contingency about
the driveway. He signed Jane's name and presented the written offer, which Sam immediately accepted.
The closing was to occur on April 15, 2013.
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Jane met with her banker, who approved a $300,000 loan on the condition that the Development
Authority would issue its bond to finance it. On April 1, however, the Richmond Economic Development
Authority refused to issue the bond, and Jane's bank withdrew its approval of the loan. The
Development Authority's refusal came as a surprise to the parties because it almost always routinely
issued such bonds once the financing bank approved the loan. Without the Development Authority
bond, Jane could not finance the purchase. She immediately notified Sam that she was "cancelling" the
contract. Sam said he would not accept a cancellation and that he intended to "hold Jane to the deal."
Jane abandoned plans to build a new building and instead, in May 2013, spent about $50,000 to
remodel her existing offices. In the meantime, Sam was unable to sell the property to anyone else,
including the party who had made the earlier competing offer.
In December 2014, Sam filed suit against Jane for specific performance of the contract. Jane asserted
the following defenses: (i) that Ralph had no authority to sign the offer on her behalf because there was
no written agreement conferring such authority on him; (ii) that, in any event, Ralph had no authority to
present an offer without the driveway contingency; (iii) that the suit was barred by laches; and (iv) that
the refusal of the Economic Development Authority to issue the bond excused her from the contract.
a) How should the Court rule on each of Jane's defenses? Explain fully.
b) Is the Court likely to grant Sam's prayer for specific performance? Explain fully.
B. Question (with underlining of key points and phrases):
Jane wanted to construct a new office building for her engineering firm in Richmond, Virginia. She asked
her friend, Ralph, a real estate agent, to help her find an appropriate parcel to purchase. Jane had
known Ralph since her childhood, and he had represented her in several past real estate transactions.
There was no written agreement between them.
Several times during 2012, Jane and Ralph visited a property owned by Sam and expressed an interest in
purchasing it. Sam was present during two of those visits. Jane introduced Ralph as her real estate
broker, and the three of them engaged in conversations about the property and the fact that access to
the parcel was over a common driveway shared with the owner of the adjoining property. Jane did not
then voice any concern about that fact.
On January 24, 2013, Ralph met with Jane and discussed the wording of an offer on Sam's property.
They agreed on the $300,000 price she was willing to offer, and Jane told Ralph that the deal would have
to be contingent on her obtaining a bank loan secured by a bond issued by the Richmond Economic
Development Authority. Jane objected to the common driveway on the property and told Ralph that the
offer would also have to be contingent on Sam's conveying to her the sole right to the use of the
driveway. Ralph said he would go back to his office, type the terms and contingencies onto a standard
form real estate contract, and return with it later in the day for her signature.
Back at his office, Ralph found a message that Sam had received a competing offer that he was about to
accept. He phoned Jane and told her she needed to act quickly if she wanted the property. She said that
he should go ahead, type up the offer, sign her name to it, and present it to Sam. He typed in the price
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and the financing contingency; however, in the rush of the moment, he omitted the contingency about
the driveway. He signed Jane's name and presented the written offer, which Sam immediately accepted.
The closing was to occur on April 15, 2013.
Jane met with her banker, who approved a $300,000 loan on the condition that the Development
Authority would issue its bond to finance it. On April 1, however, the Richmond Economic Development
Authority refused to issue the bond, and Jane's bank withdrew its approval of the loan. The
Development Authority's refusal came as a surprise to the parties because it almost always routinely
issued such bonds once the financing bank approved the loan. Without the Development Authority
bond, Jane could not finance the purchase. She immediately notified Sam that she was "cancelling" the
contract. Sam said he would not accept a cancellation and that he intended to "hold Jane to the deal."
Jane abandoned plans to build a new building and instead, in May 2013, spent about $50,000 to
remodel her existing offices. In the meantime, Sam was unable to sell the property to anyone else,
including the party who had made the earlier competing offer.
In December 2014, Sam filed suit against Jane for specific performance of the contract. Jane asserted
the following defenses: (i) that Ralph had no authority to sign the offer on her behalf because there was
no written agreement conferring such authority on him; (ii) that, in any event, Ralph had no authority to
present an offer without the driveway contingency; (iii) that the suit was barred by laches; and (iv) that
the refusal of the Economic Development Authority to issue the bond excused her from the contract.
a) How should the Court rule on each of Jane's defenses? Explain fully.
b) Is the Court likely to grant Sam's prayer for specific performance? Explain fully.
C. SAMPLE STUDENT ANSWER
A ten-point (full-credit) answer (all grammatical and spelling mistakes from original):
a) The court should rule as follows on each of Jane's defenses:
i) The court should find that Ralph had authority to sign Jane's name, despite the absence of a written
agreement between Jane and Ralph.
In Virginia, a real estate brokerage agreement is subject to the Statute of Frauds, meaning there must be
a signed writing between the broker and client. However, the Statute of Frauds as to the brokerage
agreement does not mean that Ralph could not bind Jane to a contract as an agent.
An agency agreement is created where a principal grants authority and exercises control over the
actions of an agent, who enters into agreements or takes actions on behalf of the principal, by
agreement. The agent binds the principal when the principal has actually and expressly authorized
conduct, has actually and impliedly authorized conduct (such as conduct incidental to completing an
expressly authorized act) and by apparent authority. Apparent authority is created when the principal
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holds out the authority of the agent to a 3rd party, and the 3rd party reasonably relies on this
manifestation of authority when entering into an agreement with the agent. Subsequent ratification of
an entire contract by a principal may also bind the principal.
Here, Ralph had apparent authority to bind Jane to a real estate contract with Sam. Jane and Ralph
visited Sam's property together, and met Sam twice. Jane explictly held out that Ralph was her real
estate broker. It was reasonable for Sam, based on this manifestation, to rely on Ralph's ability to
present a contract for purchase of the land on Jane's behalf based on this manifestation, because that is
generally the role of a real estate broker. When Ralph signed the agreement on Jane's instructions, he
did so as her agent and he did not need a written agreement to do so in this instance. Further, Jane's
actions likely constituted ratification of the contract by meeting with the bank and applying for the
bond, and communicating with Sam regarding the contract.
ii) The court should find that Ralph had the authority to present the offer, though the driveway
contingency was missing, thus binding Jane.
As discussed above, Ralph had apparent authority to enter into a real estate contract with Sam on
behalf of Jane based on her manifestions. This apparent authority extends to the scope that a 3rd party
could reasonably rely on the manifestaion. Here, when Jane and Ralph met with Sam, Jane was aware of
the common driveway, however, she made no statement about it to Sam, nor made any indication that
the authority she had granted to Ralph did not extend to entering into an agreement only with the
driveway contingency. It was reasonable for Sam, then, ro rely on the contract that Ralph sent without
the driveway contingency, as he would have no way to know that Jane did not authorize Ralph to enter
into an agreement without that contingency. Thus, Ralph could bind Jane as prinicipal to the agreement,
even with the missing provision.
iii) The court should rule against Jane's defense that the claim is barred by laches.
Laches is an equitable defense that applies only to claims where there is no applicable statute of
limitations. Laches bars claims where, essentially, plaintiff's conduct in waiting so long to bring a claim
shows either a waiver of the claim by the plaintiff, or would be so prejudicial to the defendant in the
ability to defend the claim and present evidence that it would be inequitable to allow the claim to go
forward; the judge weighs inequities on both sides in deciding whether to bar a claim under laches.
Where there is a statute of limitations by statute, however, laches is not an available defense. in
Virginia, contracts have a statute of limitations of 3 years for oral contracts, 4 years for UCC contracts for
sale of goods, and 5 years for written contracts. The statute of limitations begins to toll when there has
been a breach of the contract.
Here, Jane and Sam have a contract. Though it is not entirely clear it is a written contract, there was a
written offer, and under the Statute of Frauds, a contract for the sale of real property would need to be
in writing. Assuming, then, that this is a written contract, the relevant statute of limitations is 5 years.
The contract was entered into on Jan. 24, 2013, and the date of closing was to be April 15, 2013 - as
there was no performance on that date, this would be the date of breach, when the statute of
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limitations began tolling. Sam's suit was filed in Dec 2014, less than two years following the date of
breach. The suit is well within the statute of limitations and will not be time barred.
iv) The court should rule that the refusal of the Economic Development Authority to issue the bond does
excuse Jane from the contract.
Contracts may include conditions precedent, the non-occurrence of which excuses performance because
the contract duty never arises, thus there can be no breach. Conditions subsequent should be clear in
the agreement of the parties. A party must act in good faith in seeking to bring about the condition
subsequent, and it must be reasonable (that is, not a condition so unlikely as to make the promise
illusory for lack of consideration).
Here, Same and Jane formed a contract through an offer, acceptance, and consideration. Jane's promise
to buy, if she got funding, and Sam's promise to sell if Jane got funding, supplied adequate
consideration.
Here, the agreement that Sam accepted expressly included a financing contingency. This contingency
stated that Jane would only purchase the property if she was able to secure a bank loan secured by a
bond issued by the Richmond Economic Development Authority. Assuming the agreement was this
explictly spelled out in the agreement, the non-occurrence of the bond being issued excuses Jane's duty
to perform under the contract. Jane acted in good faith in meeting with her bank and seeking to get the
bond. There is no indication that she acted in any way to cause the bond not to be issued, as indicated
by her surprise that it was not. The bank then withdrew its loan approval. As Jane acted in good faith to
make the condition precedent come about, but it failed nonetheless, her performance under the
contract was excused.
b) The court is not likely to grant Sam's specific prayer for specific performance.
Specific performance is an equitable remedy where a party can show that there is an indequate remedy
at law for the damages caused to the party by another party's breach of a contract. Doubts as to the
adequacy of a remedy existing at law are to be decided in favor of the party seeking specific
performance. Specific performance is generally available for contracts, except for those for personal
services. Specific performance may be especially favored for transactions involving land, as land is
considered unique. For specific performance, there must have been both a valid contract - through
offer, acceptance, and consideration (benefit/detriment to both parties), followed by a breach of that
contract.
Here, however, while Sam may be able to show that he has damages for which there is no adequate
remedy at law (since he has been unable to seel the property), he is not able to show a breach of the
contract. As discussed above, the failure of a condition precedent to a contract to occur excuses
performance under the contract; Sam accepted this term in accepting Jane's offer. This offer became
part of the agreement; thus when the funding contingency failed, due to no bad faith on the part of
either party, the contract was not breached, but simply did not come into existence. Sam should be
bound by the bargain that he entered into, knowing that it was contingent on financing. His subjective
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suprise at the funding not being granted does not warrant a finding in his behavior, as he assumed the
risk of the condition not occuring in agreeing to the contract. The court is thus not likely to grant Sam's
prayer for specific performance.
ANALYSIS OF A VIRGINIA BAR EXAM ESSAY QUESTION AND ANSWER, PART 2
A. Question (from the February 2013 Virginia Bar Exam):
Mr. Wilson, a resident of Dinwiddie County, Virginia, died on December 26, 2011. Four children, John,
Rob, Sally and Mary, survived him. Following Mr. Wilson's death, his safe deposit box at Dinwiddie Bank
was opened and inventoried. It contained Mr. Wilson's Last Will and Testament, three sealed envelopes,
and one savings account passbook evidencing an account with Dinwiddie Bank to which was attached a
photocopy of the bank's signature card.
The envelopes were individually addressed to Rob, Sally and Mary respectively. Each envelope
contained a United States Government Bond payable to Bearer. Rob's envelope contained a bond in the
principal amount of $150,000, the bond in Sally's envelope was for $90,000, and the bond in Mary's
envelope was for $75,000. Additionally, each envelope contained a letter from Mr. Wilson to the
appropriate child, each dated November 1, 2011, stating: "The enclosed Bond is a gift for Christmas."
Mr. Wilson's savings account had a balance of $50,000. Mr. Wilson had established it in January 2011 in
the names of "Mr. Wilson and John Wilson, joint tenants with right of survivorship." The copy of the
signature card had both Mr. Wilson's and John's signatures in two places, once to establish their
signatures for account purposes and once next to a statement reading: "JOINT ACCOUNT WITH
SURVIVORSHIP."
Mr. Wilson's will dated December 1, 2011 contained a specific provision stating that John was to receive
nothing from the estate and further stating that the $50,000 joint savings account in the name of Mr.
Wilson and John was not to pass to John, but be divided equally among Rob, Sally and Mary. There were
a number of specific bequests variously to Rob, Sally, and Mary but no specific bequests of the bonds
contained in the sealed envelopes. The residue of Mr. Wilson's estate was also to be divided in equal
shares among those three children.
At a hearing on the probate of Mr. Wilson's will, Rob, Sally and Mary each testified that Mr. Wilson had
informed them that he intended to make gifts to each of them of certain bonds that he had instructed
Sally to put in his safe deposit box. Sally testified that she had always been an authorized user to enter
Mr. Wilson's safe deposit box and that on November 1, 2011, at Mr. Wilson's request, she entered that
box and delivered all of the subject bonds to Mr. Wilson. According to Sally, Mr. Wilson dictated to Sally
the letters later found in the envelopes. She typed them, addressed the envelopes, and gave them to
Mr. Wilson who placed the letters and bonds in the envelopes and sealed them. Mr. Wilson then said to
Sally, "Since you have access to my safe deposit box, put these envelopes back in there," which she did.
She testified he later said to her, "Don't forget those envelopes I told you to put back in my safe deposit
box. Come Christmas, I want you, Rob, and Mary to have them." She further testified that, because Mr.
Wilson became terminally ill just before Christmas, the family delayed their Christmas celebration to be
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with him during his final illness and that, as a consequence, she never got around to handing out the
envelopes before he died on the day after Christmas.
John testified concerning the joint account. He stated that he executed the signature card at his father's
request and acknowledged that all of the money placed in the account had belonged to Mr. Wilson.
None of the other children had any knowledge of the account, although Sally had seen the passbook in
the safe deposit box. No other testimony was received.
(a) What are the arguments pro and con that the Government Bonds are either the property of Rob,
Sally and Mary, or that they are assets of Mr. Wilson's residuary estate, and what is the most likely
outcome? Explain fully.
(b) Should the savings account be divided equally among Rob, Sally and Mary as specified in Mr.
Wilson's will? Explain fully.
B. Question (with underlining of key points and phrases):
Mr. Wilson, a resident of Dinwiddie County, Virginia, died on December 26, 2011. Four children, John,
Rob, Sally and Mary, survived him. Following Mr. Wilson's death, his safe deposit box at Dinwiddie Bank
was opened and inventoried. It contained Mr. Wilson's Last Will and Testament, three sealed envelopes,
and one savings account passbook evidencing an account with Dinwiddie Bank to which was attached a
photocopy of the bank's signature card.
The envelopes were individually addressed to Rob, Sally and Mary respectively. Each envelope
contained a United States Government Bond payable to Bearer. Rob's envelope contained a bond in the
principal amount of $150,000, the bond in Sally's envelope was for $90,000, and the bond in Mary's
envelope was for $75,000. Additionally, each envelope contained a letter from Mr. Wilson to the
appropriate child, each dated November 1, 2011, stating: "The enclosed Bond is a gift for Christmas."
Mr. Wilson's savings account had a balance of $50,000. Mr. Wilson had established it in January 2011 in
the names of "Mr. Wilson and John Wilson, joint tenants with right of survivorship." The copy of the
signature card had both Mr. Wilson's and John's signatures in two places, once to establish their
signatures for account purposes and once next to a statement reading: "JOINT ACCOUNT WITH
SURVIVORSHIP."
Mr. Wilson's will dated December 1, 2011 contained a specific provision stating that John was to receive
nothing from the estate and further stating that the $50,000 joint savings account in the name of Mr.
Wilson and John was not to pass to John, but be divided equally among Rob, Sally and Mary. There were
a number of specific bequests variously to Rob, Sally, and Mary but no specific bequests of the bonds
contained in the sealed envelopes. The residue of Mr. Wilson's estate was also to be divided in equal
shares among those three children.
At a hearing on the probate of Mr. Wilson's will, Rob, Sally and Mary each testified that Mr. Wilson had
informed them that he intended to make gifts to each of them of certain bonds that he had instructed
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Sally to put in his safe deposit box. Sally testified that she had always been an authorized user to enter
Mr. Wilson's safe deposit box and that on November 1, 2011, at Mr. Wilson's request, she entered that
box and delivered all of the subject bonds to Mr. Wilson. According to Sally, Mr. Wilson dictated to Sally
the letters later found in the envelopes. She typed them, addressed the envelopes, and gave them to
Mr. Wilson who placed the letters and bonds in the envelopes and sealed them. Mr. Wilson then said to
Sally, "Since you have access to my safe deposit box, put these envelopes back in there," which she did.
She testified he later said to her, "Don't forget those envelopes I told you to put back in my safe deposit
box. Come Christmas, I want you, Rob, and Mary to have them." She further testified that, because Mr.
Wilson became terminally ill just before Christmas, the family delayed their Christmas celebration to be
with him during his final illness and that, as a consequence, she never got around to handing out the
envelopes before he died on the day after Christmas.
John testified concerning the joint account. He stated that he executed the signature card at his father's
request and acknowledged that all of the money placed in the account had belonged to Mr. Wilson.
None of the other children had any knowledge of the account, although Sally had seen the passbook in
the safe deposit box. No other testimony was received.
(a) What are the arguments pro and con that the Government Bonds are either the property of Rob,
Sally and Mary, or that they are assets of Mr. Wilson's residuary estate, and what is the most likely
outcome? Explain fully.
(b) Should the savings account be divided equally among Rob, Sally and Mary as specified in Mr.
Wilson's will? Explain fully.
C. SAMPLE STUDENT ANSWER
A ten-point (full-credit) answer (all grammatical and spelling mistakes from original):
(a) Government Bonds
Rob, Sally, and Mary have a strong argument in their favor to assert that the Government Bonds are
their property and are not assets of Mr. Wilson's residuary estate.
The Government Bonds represent intervivos gifts transferred by Mr. Wilson during his lifetime. A valid
gift transfers title. However, to be valid, the intervivos (meaning, during one's lifetime) gift must be
accompanied by a donative intent, must be validly delivered, and it must be validly accepted.
Donative intent necessitates a present intent to immediately be bound, even if the donor maintains
possession of the gift for the donor's lifetime. In this case, the facts indicate that the November 1, 2011,
letter that accompanied each bond stated that the bonds were a gift for Christmas. The facts further
indicate that Mr. Wilson and Sally had a detailed exchange about the bonds, pursuant to which Mr.
Wilson informed her of his intent to make gifts to each of Rob, Sally, and Mary, and that he instructed
Sally to put the bonds in his safe deposit box. Thus, such communications clearly demonstrate Mr.
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Wilson's present intent to be immediately bound, and the fact that the bonds were not deliverd until
after he died does not unravel the donative intent.
In addition to donative intent, the donor must validly deliver the intervivos gift. In this case, the facts
indicate that he entrusted Sally to put the envelopes with the bonds in the safe deposit box, to which he
knew she had access. Even though the envelopes never reached the children until after Mr. Wilson's
death, the facts suggest that Mr. Wilson accomplished a valid delivery by granting Sally access to his safe
deposit box, in which he left the actual bonds. In general, a gift is validly delivered if the item itself is
handed over or if something that represents the item is handed over. In this case, the bonds were
payable to bearer, meaning that they were payable to whomever was in possession of the bonds. Even
though the bonds themselves where in Mr. Wilson's safe deposit box, delivery was effective the
moment that Mr. Wilson communicated his intent to be bound and gave them to Sally to guard until
Christmas.
Lastly, to have a valid intervivos gift, there must be valid acceptance. A donee can accept by silence, so
short of an express rejection, almost any action constitutes valid acceptance. Here, Sally put the
envelopes in the safe deposit box with the intent of handing them out at Christmas. But for Mr. Wilson's
death, she would have done so. Thus, there is nothing in the facts to indicate that any of the children
have rejected the intervivos gift.
Despite these seemingly strong arguments, there is an argument that delivery was never effected, and,
therefore, the bonds should pass through Mr. Wilson's residuary estate. After all, if a gift is not valid, it
does not pass title, and, thus, title would remain with Mr. Wilson.
To support this assertion, the key facts are that the bonds were in fact never delivered to the children
until after Mr. Wilson's death. Despite the fact he may have had the donative intent to convey title to
the bonds when he wrote the letters and talked with Sally, the fact remains that the bonds were in his
safe deposit box and were never actually or symbolically handed over to the children until after his
death. As such, title never passed to the children, and, instead, remained with Mr. Wilson, meaning that
they should pass through his residuary estate.
In addition, the facts indicate that it was Mr. Wilson's intent to pass title at Chrismas and not upon the
date of the letter - November 11, 2011. Thus, one could argue that no donative intent existed at the
time that the letters were written. This argument is likely unsuccessful, however, because the facts
indicate that Mr. Wilson died one day after Christmas, and thus the donative intent, if not effective
when the letters were written, became effective one day before he died, on Christmas Day.
It is worth noting that the fact that the December 1, 2011, will did not mention the bonds is of no
import. Had the bonds been gifts after the will, then perhaps there would be an ademption by
satisfaction analysis, meaning an analysis as to whether the bonds were meant to be in satisfaction of
some other legacy in the will or whether they were meant to be merely gifts. However, because the
conveyance of the bonds and the accompanying letters came before the will, no such analysis is
pertinent to the determination of whether Mr. Wilson passed title to the bonds to his three children.
Virginia Essay Workshop | © 2017 Themis Bar Review, LLC | 15
(b) Savings Account
The savings account should not be divided equally among Rob, Sally, and Mary as specified in Mr.
Wilson's will. The facts indicate that the savings account was created as a joint account with survivorship
rights between Mr. Wilson and John Wilson. Such joint accounts are considered nonprobate assets, or
will substitutes, which do not pass by probate and are not descendible or devisable. Instead, by
operation of law, one joint tenant's interest will pass automatically to the other upon the former's
death.
In this case, the facts indicate that both Mr. Wilson and John Wilson effected a valid joint savings
account by signing the signature card in two places - once to establish their signatures for account
purposes and once to manifest their intent to make it a joint account with rights of survivorship. The
facts further indicate that nearly 12 months after the joint account was created, Mr. Wilson drafted a
will that sought to undue the right of survivorship and instead devise the balance of the account to Rob,
Sally, and Mary. Such attempt was ineffectual to cut off John's survivorship rights. To do so, Mr. Wilson
would have had to terminate the joint account with the bank prior to his death by proper means. In this
case, his mere attempt to discredit the joint account via his will is ineffective, and John will inherit the
full $50,000 balance pursuant to his right of survivorship.
SUMMARY OF MAJOR POINTS IN VIRGINIA ESSAY WORKSHOP
A. Format for Essay Questions
o DAY ONE: 6 hours, 9 essays, 10 multiple-choice
o 36 minutes per essay question
B. Scoring of Virginia Bar Exam
o Day 1 scaled score is combined with Day 2 scaled score, but Day 1 scaled is more heavily
weighted
o A passing score on the Virginia Bar Exam is a Total Scaled Score of 140 points
o Implications: Day 1 is weighted slightly more than Day 2; every essay on Day 1 matters; and
grading is not on a curve
C. Coverage for Essay Questions
o The number one subject for testing on the essay questions is _______________________ is
also tested frequently
o Other frequently-tested subjects Wills
Real Property
Professional Responsibility
Criminal Law
Domestic Relations
Contracts and Sales
o Less frequently-tested subjects Corporations
Agency
Local Government Law
Partnerships
16 | © 2017 Themis Bar Review, LLC | Virginia Essay Workshop
Personal Property
Commercial Paper
Equity
o Least-frequently tested subjects
Criminal Procedure
Creditors’ Rights
Taxation
Conflict of Laws
Torts
Trusts
Secured Transactions
Evidence
Suretyship
o Essays may cover more than one subject in a single essay question
D. General Approach to Preparing for Essay Questions
o Study the substantive law for each of the subjects
o Practice writing essays; submit graded essays
o Practice the Themis multiple-choice questions
E. General Objectives in Answering Essay Questions
o Demonstrate that you know the relevant law, that you can apply the relevant law to a given
set of facts that you have not seen before, and that you can communicate your analysis
clearly and effectively
o Mantra: clarity, accuracy, and directness
F. Specific Method for Answering Essay Questions
o Use CRAC
G. Approach to Writing Essays
1) Read the _______________________
2) Read the _______________________
3) Make _______________________
4) Write the essay, remembering to aim for clarity at all times; use transitions
5) _______________________Review for completeness and accuracy _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ GOOD LUCK!
[END OF HANDOUT]