Question-one

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NEW YORK STATE BAR EXAMINATION

FEBRUARY 2015 QUESTIONS AND ANSWERS




QUESTION-ONE

In 1995, Walt, a widower, executed a will prepared by his lawyer, Len, which contained the following dispositive provisions:


1. I give and devise my residence to my daughter, Amy.

2. I give and bequeath my 100 shares of C Corp. to my son, Ben.

3. I give and bequeath $100,000 to my son, Cal.

4. I give and bequeath $100,000 to the American Red Cross.

5. I give, devise and bequeath all of the rest, residue and remainder of my estate to my grandson, Dave.
Walt signed the will at Len's office, and at Walt's request, Len and Walt's son, Ben, signed as witnesses in the presence of Walt and each other after Walt acknowledged that the document was his will.
In 2000, Walt duly executed a new will which expressly revoked any and all wills previously made by him. In 2001, Walt decided that he did not like the terms of the 2000 will and physically destroyed it by his own hand.
Walt died last year, survived by Amy, Ben, Cal, and Dave. Dave is Walt's only grandson and is the son of Walt's deceased son, Ed. The 1995 will has been admitted to probate over the objections of Cal that the 1995 will had not been properly executed and that, in any event, it had been revoked.
Walt's residence has been valued at $300,000, and his 100 shares of C Corp. have been valued at $200,000. After payment of all debts, expenses and taxes, the net estate, including the residence and the C Corp. shares, is $600,000.
(1) (a) Was the 1995 will properly executed?

(b) Assuming the 1995 will was properly executed, was it properly admitted to probate?

(2) Assuming the 1995 will was properly admitted to probate, what part, if any, of the net estate should be distributed to:
(a) Amy?
(b) Ben?
(c) Cal?
(d) The American Red Cross?
(e) Dave?

First Answer to Question One

1. a) Walt's 1995 Will was properly executed. The issue is whether a Will is properly executed where an attesting witness is also a beneficiary.


Under the New York EPTL, a will is properly executed when it satisfies a 7 point test. The 7 points are as follows: (1)The testator must be at least 18 years old and of sound mind; (2) the will must be in writing and the testator must sign or have someone sign on his behalf at his request and in his presence; (3) the signature must be at the end there of and anything following the testator's signature is invalidated; (4) the testator must sign in the presence of 2 attesting witnesses or later acknowledge to them that it is his signature; (5) the testator must publish to the two attesting witnesses that this is his will; (6) the two attesting witnesses must sign, and do not need to sign in each other's presence; and (7) the attesting witness's signatures must be signed within 30 days of each other.

When one of the attesting witnesses is an interested witness, one who also is a beneficiary under the will, someone who is given a gift in the will, the will remains valid. The interested witness's gift will fail however unless (1) there is a supermajority of voters, where even with the interested witness's signature there are still two other disinterested attesting witnesses to the will; or (2) the interested witness would have received an intestate share had the testator died intestate, at which point the interested witnesses would receive their intestate share or the gift bequest under the will, whichever is lesser of the two.

Here, Walt executed his 1995 that was prepared by his lawyer Len. There is no indication that Walt was under the age of 18 and there is also no indication that Walt was not of sound mind. The Will was in writing and Walt signed 'at the end there of' in the presence of Len and Walt's son Ben who that day signed as witnesses after Walt acknowledged and published that this was his will. Ben's status as a beneficiary and a witness, does not affect the validity and execution of Walt's will. However, it will affect his taking of his gift. Because there was not a supermajority of witnesses and because Ben would have taken an intestate share, he will however, take the lesser of his intestate share or the gift.
Therefore, Walt's will was properly executed because the will satisfies the 7 point test and because Ben's status as a beneficiary and witness does not affect the validity of Walt's will.
b) The 1995 will was not properly admitted to probate. The issue is whether a duly executed subsequent will that is later revoked revives the original will.
Under NY EPTL, a will is revoked in two ways, (1) through the proper execution of a subsequent will, or (2) through physical revocation at the hands of the testator, or at the request of the testator in his presence. A properly executed subsequent will, that is later revoked, does not revive the original will's status. Under the Dependency Revocation Rule (DRR), which NY has yet to determine its standing in NY, a later executed will that is revoked with the mistaken belief that it will revive the original will, will not revive the original will, but will revive the second will to the extent that it satisfies the intention of the Testator's wishes.

Here, Walt duly executed his first will in 1995. In 2000, he duly executed a second will which contained a clause that expressly 'revoked any and all wills previously made by him'. In 2001, Walt then decided that he did not like the terms of the 2000 will and physically destroyed the will at his own hands. When Walt executed the 2000 will, he effectively revoked the 1995 will, by both the execution of the 2000 will as well as the express clause stating that any and all prior executed wills were previously made by him. Then in 2001, Walt revoked his 2000 will by physically destroying it at his own hands. Even if New York, took into account the effects of DRR, there is no indication that Walt had any belief that revoking his 2000 will would revive his 1995 will and furthermore, the 2000 will, expressly stated that it revoked any and all previously executed wills, thus solidifying Walt's intention that he no longer wanted the 1995 will to be his will.

Therefore, Walt's Will was not properly admitted to probate because it was revoked by the due execution of the 2000 will as well by the expressly stated clause within the 2000 will "revoking any and all wills previously made by him."
2. When a will is admitted into probate, and it does not have an adequate net estate, the gifts that are distributed to the beneficiaries will be devised in the following order: (1) Specific Gifts; (2) demonstrative gifts; (3) general gifts; and (4) the residuary.
a) Amy will receive Walt's residence valued at $300,000. The issue is whether a gift devising 'my residence' is a specific gift.
Under NY EPTL, a specific gift is one that specifically identifies the gift that will be distributed upon being admitted into probate. If the gift is one of a residency, and the will states that the beneficiary will revive "my residence", the will will be interpreted based of what the testator's intent was and the residence that will be devised is the one that is in the testator's possession at his death.
Here, Walt devised in the will to Amy 'my residence'. This is a specific gift because it is one that is specifically identified. Because it stated my 'residence', Walt's intent will be interpreted by the courts as devising Amy the residence that was in his will at the time of his death.
Therefore, Amy will receive the residence in Cal's possession at the time of his death.
b) Ben will receive $150,000.00. The issue is whether Cal will receive his C Corp shares or his intestate share.

Under NY EPTL, a specific gift is one that specifically identifies the gift that will be distributed upon being admitted into probate. These gifts will be distributed first when the net estate is inadequate. Here, Walt devised Ben "my 100 shares of C Corp," thus designating it a specific gift.

However, under the New York EPTL, a will is properly executed when it satisfies a 7 point test. However, when one of the attesting witnesses is an interested witness, one who also is a beneficiary under the will, someone who is given a gift in the will, the will remains valid. The interested witness's gift will fail however unless (1) there is a supermajority of voters, where even with the interested witness's signature there are still two other disinterested attesting witnesses to the will; or (2) the interested witness would have received an intestate share had the testator died intestate, at which point the interested witnesses would receive their intestate share or the gift bequest under the will, whichever is lesser of the two.
Under NY EPTL, when an estate is entered into intestacy, the estate is distributed per capita by representation at each generation. The estate is distributed at the first generation of issue and then subsequently distributed per capita at the second generation level if an issue in the first generation had previously deceased the testator and was survived by issue, through the NY Anti-lapse statue.
Here, Walt's will was duly executed and properly admitted to probate. Because Ben was an attesting witness, as well as a beneficiary, he will receive the lesser of his gift under the will and what he would have received had Walt died intestate, as he would have received and intestate share. When Walt died, after debts, expenses and taxes, including the residence and the C Corp shares, the net estate was valued at $600,000.00. Had the estate been distributed intestate, Ben would have received 1/4 of the net estate (150,000.00) because Walt was survived by 4 people who would be receiving an intestate share.

Therefore, Ben would receive $150,000.00 because it is the lesser of the 100 C Corp shares and what he would receive intestate.

c) Cal will receive $75,000.00. The issue is whether a beneficiary will receive their gift under a will if they contest the will's admittance to probate.
Under the NY EPTL, if a will contains a no contest clause, the beneficiary that contests the will's admittance into probate will be barred from receiving their gift devised in the will, unless the contestation falls within one of the exceptions.
Under the NY EPTL, a gift devising a sum of money is considered a general gift and will be distributed after the specific and demonstrative gifts. A general gift will be given out of the remainder of the estate after the distribution of the specific and demonstrative gifts.
Here, Walt's will did not contain a no contest clause, and so Cal will not be barred from receiving his gift under the will. However because Walt's will contained 2 general gifts, one to Cal and one to the American Red Cross, and because Ben and Amy will receive their bequest before Cal's general bequest, which equals $450,000, the gifts devised to Cal and the American Red Cross will be distributed proportionally from the remainder of the $150,000 in the probate estate.
Therefore, Cal will receive $75,000 because the remainder of the probate estate does not satisfy both his and the American Red Cross's bequest and so will be distributed to the two proportionally.
d) The American Red Cross will receive $75,000.00. The issue is whether a general gift giving under a will fails when the net estate is in adequate to satisfy the bequest.

Under the NY EPTL, a gift devising a sum of money is considered a general gift and will be distributed after the specific and demonstrative gifts. A general gift will be given out of the remainder of the estate after the distribution of the specific and demonstrative gifts.

Here, Walt's will contained 2 general gifts, one to Cal and one to the American Red Cross, and because Ben and Amy will receive their bequest before Cal and the American Red Cross's general bequest, which equals $450,000, the gifts devised to Cal and the American Red Cross will be distributed proportionally from the remainder of the $150,000 in the probate estate.
Therefore, the American Red Cross will receive $75,000 because the remainder of the probate estate does not satisfy both Cal's and the American Red Cross's bequest and so will be distributed two the two proportionally.
e) Dave will receive the rest, residue and remainder of Walt's estate, which is nothing. The issue is what Dave will receive under the residuary clause.
Under the NY EPTL, when a will is admitted into probate, and it does not have an adequate net estate, the gifts that are distributed to the beneficiaries will be devised in the following order: (1) Specific Gifts; (2) demonstrative gifts; (3) general gifts; and (4) finally the residuary. When after the distribution of the Special gifts, demonstrative gifts, and general gifts, there is no longer anything remaining in the estate, so the devisee of the residuary clause will not receive anything.
Here, after the special gifts to Ben and Amy were satisfied and the general gifts to Cal and the American Red Cross were satisfied pro- rata due to the inadequacy of the net estate, there was nothing remaining in the estate to devise to Dave as the holder of the residuary clause.
Therefore, Dave will not receive anything from the distribution of Walt's will.

Second Answer to Question One

1. a) The issue is whether the 1995 will has been properly executed.

To be properly executed a will must be in writing and signed by a competent testator with present testamentary intent and witnessed by two witnesses who are aware of the testator's testamentary act (that he is making a will). A competent testator must be at least 18 years old at the time of execution and must be of sound mind and memory. Sound mind and memory means that the testator is capable of knowing his act, the nature and value of his property, the natural objects of his bounty, that he is making a will, and the plan of disposition. Actual knowledge is not required; the testator must only be capable of knowing these items. In addition, a will must also be signed at its end after all the provisions of the will. A beneficiary in the will is competent as a witness to the will. However, a beneficiary acting as a witness may have his own gift fail if there are not two other witnesses.

In 1995, Walt executed a will prepared by his lawyer, Len. The will was witnessed by Len and Walt's son, Ben. The will was in writing and signed by Walt presumably at its end following all its terms. There is no indication in the facts that Walt lacked any capacity. Len and Ben as witnesses are aware that Walt is signing a will as Walt acknowledged to them that the document was his will, indicating his present testamentary intent. Lastly, although Ben is a beneficiary in the will, he may still act as a witness. The will's execution is still valid even though Ben is a beneficiary, however Ben's own gift may fail (the details of Ben's gift are described below in (2)(b)).
Therefore, the 1995 will was properly executed.
b) The issue is whether the 1995 will was properly admitted to probate assuming it was properly executed.
A will can be revoked by a testator with the intent to revoke by physically destroying the will. In addition, a will can be revoked by executing a new will that expressly revokes the prior will. In addition, revoking a will does not automatically revive any prior wills. Wills must be executed with testamentary formalities and thus a revocation will not revive prior wills. A will must be validly executed in order to be admitted to probate.

In 2000, Walt duly executed a new will which expressly revoked any previous wills made by him, including the 1995 will. Executing a new will revoking old wills is an effective method of revocation and with the execution of the 2000 will the 1995 will had been revoked. Walt then, in 2001, physically destroys his 2000 will. He had decided he did not like the terms of the 2000 will. This affectively revoked the 2000 will by physical destruction paired with an intent to revoke. However, in the absence of the execution of a new will, this act of destruction did not revive the 1995 will. The facts do not indicate that Walt took any steps to validly execute a new will, and thus the 1995 will was still invalid at his death and should not have been admitted to probate.

Therefore, Walt's 1995 will should not have been admitted to probate because it had been revoked and not affectively revived.
2. a) The issue is what part of the net estate should be distributed to Amy, assuming the 1995 will was properly admitted to probate.
A specific devise in a will allocates a specific piece of real or personal property to certain beneficiaries. This type of devise has priority and is the last type of devise to be used up in the abatement of probate property.
The will devises Walt's residence, valued at $300,000 to his daughter Amy. This is a specific devise and will not abated last to satisfy debts, expenses, and taxes. There is no conflict as to the residence and Amy will receive it.
Therefore, the residence valued at $300,000 should be distributed to Amy.
b) The issue is what part of the net estate should be distributed to Ben, assuming the 1995 will was properly admitted to probate.
A beneficiary who acts as a witness to a will may have his gift fail unless two other witnesses are present in addition to himself. However, if this beneficiary would have taken an intestate share of the decedent's estate then his gift will be saved up to his intestate share. In New York, intestate property is distributed to heirs by representation.
The estate property is divided into a share for each member, living or deceased, of the closest generation with living members. The living members take their share, and the remainder is then passed down to the next generation with living members and the process is repeated.

Ben was a witness to the 1995 will. Ben and Len were the only witnesses to the will, so Ben's gift may fail because there were not two witnesses in addition to himself. However, because Ben is Walt's son and would have been entitled to an intestate share his gift will be saved up to that intestate share. Had Walt died intestate his property would have been distributed to by representation to his heirs. His net estate after payment of debts, expenses, and taxes, is $600,000. By representation distribution would have divided this into quarters for the closest generation with living members, with Amy, Ben, and Cal, Walt's living children, each receiving a share. The remaining share, intended for Walt's deceased son Ed, would passed to the next generation. As Dave is Walt's only grandson and the only member of the next generation, Dave would receive the final quarter of the estate if distributed by intestacy. Ben would receive $150,000, as one quarter of the net estate. The gift to him of 100 share of C Corp valued at $200,000 will fail above $150,000. The additional $50,000 would pass to the residuary, or to general devisees as will be seen below.

Therefore, Ben should receive $150,000 of the C Corp shares.
c/d) The issue is what part of the net estate should be distributed to Cal and the American Red Cross, assuming the 1995 will was properly admitted to probate.
A general devise or bequest is one of property of the estate in whole. It is typically seen as a gift of a certain dollar amount not specified to be satisfied from a particular source. Residual gifts will be abated to satisfy general devises/bequests. General devises/bequests will be satisfied proportionally if there are insufficient assets in the estate to satisfy them all entirely.
Cal and the American Red Cross have each been granted a general bequest of $100,000. There is insufficient probate property to satisfy both entirely. Because of the partial failure of Ben's gift, $50,000 of C Corp stock will pass to the residuary. This will be abated to satisfy these general bequests. There is $150,000 to satisfy the general bequests because the net estate is $600,000, $300,000 of which is the residence, $200,000 was the shares, and $100,000 was additional cash. This $150,000 will be split up to satisfy Cal and Red Cross's gifts proportionally, with each receiving $75,000.
Therefore, Cal and the American Red Cross should each receive $75,000.
e) The issue is what part of the net estate should be distributed to Dave, assuming the 1995 will was properly admitted to probate. The residuary clause of a will gives any property remaining after all specific, general, and demonstrative gifts to a particular beneficiary. It is abated first and has the lowest priority.

Per the above discussion, the entire probate estate has been given as either specific or general gifts. There is no property remaining in the residuary and therefore there is nothing to give to Dave.

Therefore, Dave should receive nothing as the residual beneficiary.


QUESTION-TWO

Dell was driving his car at night on an unlighted winding country road when, without slowing down, he struck a pedestrian who was walking on the shoulder of the road adjacent to a field. The posted speed limit for the road was 30 miles per hour. Officer arrived at the scene of the accident 15 minutes later and found Dell sitting in his car in the field. Without giving Dell any Miranda warnings, Officer asked him why his car was in the field, and Dell said that he was driving down the road and his car hit "something." Officer noticed that Dell's eyes were glassy, his speech was slurred, and his breath had a strong odor of alcohol. When Dell exited the car at Officer's direction, he could not stand without holding onto the car. Dell refused Officer's request that he take a breath test to determine the percentage of alcohol in his blood. An ambulance arrived, and the pedestrian was pronounced dead.


Officer arrested Dell and took him to the police station. Officer then appeared before a judge who, based upon the above facts, issued an order for a chemical test of Dell's blood. The blood test was administered and showed Dell's blood alcohol level to be substantially above the legal limit for driving while intoxicated.

Dell was indicted for the crime of manslaughter in the second degree. A person is guilty of manslaughter in the second degree when he recklessly causes the death of another person. Prior to the trial, Dell moved to suppress the results of the blood test on the ground that it was improperly authorized. He also moved to suppress his statement -that he was driving down the road and his car hit "something" - because he was not given Miranda warnings. The court (a) granted Dell's motion to suppress the results of the blood test and (b) denied Dell's motion to suppress his statement. Uncontroverted testimony as to all of the above facts, except the blood test results, was received at the trial. In addition, an expert testified, based on his observations and measurements at the scene, that Dell's car was travelling in excess of 55 miles per hour when it left the road and struck the pedestrian.

After both sides rested, Dell made a motion (1) to dismiss the indictment on the grounds that the evidence was legally insufficient to establish the crime of manslaughter in the second degree, and (2) in the alternative, to submit to the jury a charge of criminally negligent homicide as a lesser-included offense. A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person. The court denied the motion in both respects. Dell was convicted of manslaughter in the second degree.
(1) Was the court correct in its pre-trial determinations:
(a) to suppress the results of the blood test?
(b) not to suppress Dell's statement?
(2) Was the evidence presented at trial legally sufficient to support the conviction of manslaughter in the second degree?
(3) Was the court correct in denying Dell's request to charge the lesser-included offense of criminally negligent homicide?

First Answer to Question Two

1. a) Dell's motion to dismiss pre-trial motion to suppress the results of the blood test on the grounds that it was improperly authorized should have been denied. Given the fleeting nature of the evidence, namely, the alcohol content in Dell's blood, together with Dell's refusal to submit to a breath exam, the officer had a need to obtain important evidence to preserve it for trial. By appearing before a court and honestly disclosing the facts to a neutral and detached judge, the officer received proper authorization to obtain a blood sample from Dell. Lastly, Dell did not appear to raise any objection to the blood test.

b) At issue is whether Dell's statement was voluntarily (not the subject of actual coercion) issued before or after his Miranda rights were triggered. Under the Fifth Amendment to the U.S. Constitution, which has been applied to the states through the Due Process Clause of the 14th Amendment, a person must be read certain rights when they are under custodial interrogation. Custody is interpreted objectively to mean that a reasonable person under the circumstances would not feel free to leave. Here, Dell had no reason to believe that he couldn't leave due to an officer's resistance or threat of resistance (or claim of lawful authority to detain). Merely speaking with an officer while in your car does not automatically trigger custody.

Interrogation is based on a reasonable officer standard under which an officer knows or should have known that his or her questions were likely to elicit an incriminating response. Here, the officer arrived on the scene and asked a fairly basic investigatory question to find out generally what was going on. The officer had not even yet realized that someone had been hit or that the driver had been driving in excess of the speed limit or while intoxicated. Therefore, Dell was not under custodial interrogation.
The court properly denied Dell's motion to suppress his voluntary statement.
2. The prosecution has the burden of production to prove beyond a reasonable doubt all the material elements of manslaughter in the second degree. There is no evidence that Dell's intoxication was involuntary and as such, his operation of a motor vehicle at a speed above 55 mph will meet the actus reus requirement. At issue is whether the evidence is legally sufficient to show that Dell had the requisite mental state (mens rea, or culpable mind) for the offense, in this case, recklessness. Recklessness under NY law requires that the defendant be consciously aware of a substantial and unjustifiable risk of harm that is a gross deviation from that of a reasonable person. A reasonable person would not choose to operate a motor vehicle while intoxicated because it would substantially and unjustifiably present a likely risk of harm to other drivers or pedestrians.
Dell's collision was both the actual (but-for) cause of the death of the pedestrian and the proximate (legal) cause where his car hit the pedestrian walking along the side of the road without any intervening, superseding cause.

In addition to the results of the requested blood test showing an excessive blood-alcohol content (BAC), the officer could present testimony based on his personal observation that Dell's eyes were glassy, his speech was affected and his breath smelled of alcohol, all circumstantial evidence that Dell had been drinking. Without evidence that Dell had been involuntarily intoxicated (i.e., by a third party who had slipped something into Dell's drink), a reasonable jury could infer that Dell had consciously chosen to operate a motor vehicle while intoxicated and was reasonably aware of, even if not intending, the likely risks of his behavior.

The expert's testimony that the car was being operated at almost double the posted speed limit on a winding, dark country road would be admissible as helpful to the triers of fact and would further evidence that Dell was acting with a reckless state of mind. Under NY law, the minority Frye test still applies for the admission of any expert testimony, which bases admissibility upon whether the methods employed and relied upon by the expert in giving her testimony are "generally accepted by the relevant expert community." No evidence here indicates that measurements of skid marks and other general observations are not accepted by the relevant community (criminal investigators, most likely), and as such, the expert's testimony will come in and demonstrate further evidence of recklessness.
It is worth noting briefly that under NY law, the prosecutor could have alternatively brought the charge of vehicular manslaughter in the second degree, based on the death caused by Dell's operation of the vehicle while intoxicated.
Therefore, evidence presented at trial is legally sufficient to support the conviction of manslaughter in the second degree.

3. At issue is whether a reasonable jury could have found that Dell was liable for a lesser-included offense based on the fact that he would have possessed only the criminally-negligent mens rea as opposed to the more culpable reckless mens rea. The court was likely not correct in denying Dell's request to charge the lesser-included offense of criminally negligent homicide (CNH). The only difference between the two offenses is the requisite mental state that must be proven beyond a reasonable doubt. In this instance, criminal negligence would mean that, based on a gross deviation from the conduct of a reasonable person under the circumstances, the defendant failed to be aware of a substantial and unjustifiable risk of harm to others. Based on these facts, a reasonable jury could have found that Dell was so drunk that he did not even consciously understand the nature and seriousness of his conduct but could have been found to have a negligent state of mind.



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