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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

2 | © 2017 Themis Bar Review, LLC | Virginia Essay Workshop

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 _______________________

Virginia Essay Workshop | © 2017 Themis Bar Review, LLC | 3

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


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?


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”


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.


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


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


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


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


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


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


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.


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.


(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


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]

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