July 2018 Example Ten-point Answers to Virginia Essay Questions
July 2018 - QUESTION 2 – VIRGINIA BAR EXAMINATION
John died in 2016 in Halifax County, where he had lived his entire life. He was survived by his wife, Martha, and their adult son, Steve. John and Martha also had a daughter, Dana, who died in 2010. As a teenager, Dana was always in trouble at school and was arrested several times for various offenses. Before she graduated from high school, she left the family home and went to live with her godparents, who legally adopted her when she was thirteen. Dana later had a son, Sam, who was 12 years old at the time of his mother’s death. Sam continued to live with his godparents after Dana’s death because his father refused to acknowledge him. Sam also became very close to John and Martha after Dana’s death. He visited them often and even had a room in their home.
John properly executed a will in 2008 which, in pertinent part, included the following provisions:
Article I: I name my son, Steve, as executor.
Article II: I give all my tangible personal property to the individuals named in the written statement disposing of my tangible personal property, incorporated herein by this reference.
Article III: I devise the home in Halifax County which I inherited from my parents, to my wife, Martha, in fee simple.
Article IV: All the rest and residue of my estate, I give, devise and bequeath to my wife, Martha, for and during her natural life or until she remarries. On Martha’s death or remarriage, the remainder of my estate shall go to my heirs at law.
John’s will did not mention either Dana or Sam, but in 2009, John signed a written statement that referred to Article II in his will and provided as follows:
1. All of John’s jewelry, including his several Rolex watches, was to be distributed to Sam;
2. John’s gun collection was to go to his brother, Bob; and
3. John’s automobiles were to be distributed to his children.
Steve recorded John’s will shortly after his death in 2016, but didn’t take any steps to qualify as executor at that time.
After John’s death, Martha executed a deed to the home in Halifax County which stated “at my death, I transfer and convey my interest in the described property to Sam, as my designated beneficiary, if he survives me.” The deed was properly recorded in the Clerk’s Office of the Circuit Court of Halifax County and never revoked. Martha never remarried and died in January 2017.
In June 2017, Steve finally went to the courthouse in Halifax County to qualify himself as executor of John’s estate. He needs to know the answers to the following questions:
|(a)||Who is the owner of the home in Halifax County? Explain fully.|
|(b)||To whom should John’s personal property be distributed? Explain fully.|
|(c)||Who is entitled to the remainder of John’s estate? Explain fully.|
July 2018 - QUESTION 2 – EXAMPLE ANSWER #1
Sam is the owner of the home in Halifax County.
Under Virginia (VA) law, while a grantor who wishes to transfer title to land ordinarily requires that a deed be both executed and delivered to a grantee, a grantor can satisfy the delivery requirement by a Transfer on Death deed, which is a non-probate asset that transfers title immediately upon the grantor’s death.
The deed simply must be executed and have language indicating that title will pass at the grantor’s death. Conditional language such as “if he survives me” is allowed.
If a Transfer on Death deed is found to be invalid, title to the property will pass by intestacy. Under intestacy, if a person dies without a spouse but with children solely from that spouse, the person’s property passes to the children.
Here, Martha executed a Transfer on Death deed because the deed to the Halifax house stated that title would pass to Sam “at my death.” The conditional language of “if he survives me” does not render the deed invalid. Thus the house goes to Sam.
Alternatively, if the Transfer on Death deed was found to be invalid, because of the conditional language or any other flaw in the delivery of the deed, the Halifax house would pass to Steve, since Martha’s husband John had already died when she executed the deed and Steve would take title to it under intestacy.
Therefore, Sam is the owner of the home in Halifax County.
Sam owns all of John’s jewelry, Bob owns John’s gun collection, and Steve owns John’s cars.
Under VA law, a person can incorporate by reference into their will a list that details how they want to devise their personal property. This list must be specifically described in the Will, and and the list itself must be signed.
A Holographic will is one written wholly in the testator’s handwriting and signed by the testator. Two independent witnesses must be able to identify and confirm that the will is in fact written in the testator’s handwriting.
A codicil is an amendment to a Will, as opposed to an entirely new will, and can be made on an entirely different piece of paper, so long as it meets the same requirements that a valid will or holographic will requires.
Here, John attempted to incorporate by reference the 2009 list of personal property devises. It was a list that purported to dispose of personal property, but it is unlikely that he described that list with sufficient specificity in his will, since the will simply refers to “the written statement disposing of my tangible personal property,” without any further description of where the statement was to be found or what it would look like.
However, the 2009 list likely qualifies as a holographic codicil. It was signed by John, and if the fact that it was “written” means that it was wholly in John’s handwriting, then it was a valid holographic codicil, since it specifically references Article II in John’s will. Thus the executor must distribute John’s property according to the 2009 list.
Therefore, Sam owns all of John’s jewelry, Bob owns John’s gun collection, and Steve owns John’s cars.
Steve is entitled to the remainder of John’s estate.
Under VA law, all property not devised in a will passes by intestacy. Under intestacy, if a person dies without a spouse but with children solely from that spouse, the person’s property passes to the children.
When property will pass to a person under intestacy or via a will, but that receiving person predeceases the intestate person or testator, that “gift” will ordinarily lapse. However, under the anti-lapse statute the gift will go to the receiving person’s descendants if the receiving person is a descendant of the testator’s/intestate person’s grandparents.
When a child is adopted, that child is “cut off” from their birth parents and becomes for all intents and purposes the child of the adopting parents, including for inheritance purposes. Thus an adopted child, as well as that adopted child’s children, takes solely from the adopting parents, not from the adopted child’s birth parents.
Virginia does not recognize equitable adoptions, and thus under intestacy a child will not be able to take from a person with whom they shared a familial-like relationship unless the child was legally adopted by that person.
Here, Steve is John and Martha’s only heir at law and thus inherits the remainder of John’s estate. John left Martha his residuary estate in his will, and thus she inherited his residuary the moment John died in 2016.
There is no indication that Martha died with a valid will, and thus all her property, including John’s residuary that she had inherited the year before she died, passes by intestacy.
Ordinarily, this means that Martha’s intestate estate would go to Steve and Sam. Steve is Martha’s son and thus takes under intestacy. Dana was Martha’s daughter, and since she predeceased Martha, Dana’s son Sam would take in her place under the anti-lapse statute, since Dana was Martha’s daughter and was thus a descendant of Martha’s grandparents.
However, since Dana was legally adopted by her godparents, she was “cut off” from John and Martha and was no longer their daughter for inheritance purposes. Thus, Sam as Dana’s descendant is a grandchild of the godparents, not John and Martha, and thus the anti-lapse statute does not apply to him.
Therefore, Steve is entitled to the remainder of John’s estate.
July 2018 - QUESTION 2 – EXAMPLE ANSWER #2
2a. Sam owns the Halifax County house.
The issue here is whether Martha had an interest in the house. When property is inherited in fee siple, the fee simple owner can dispose of or transfer the property as she wishes. However, property of a decedent is not transferred until the will is probated. Additionally, the receipient of property must survive the decedent by at least five days in order to receive the property.
In this case, John inherited the house from his parents. After John’s death, Steven recorded John’s will. In the will, John devised the home to his wife, Martha, in fee simple. Therefore, after the will finishes the probate process, Martha owns the house and has the ability to decide who should receive it on her death. After John’s death, but before the will went through probate, Martha executed a deed to the home transfering her interest in the property to Sam. However, while John’s will was recorded, Steve never took any steps to qualify as executor. Steve finally went to the Courthouse to qualify after Martha’s death. Martha died more than five days after John. Therefore, after probate, Martha, or in this case her estate, owns the will. Because Martha executed and recorded the deed giving the house to Sam, Sam owns the house.
2b. John’s personal property will be distributed in accordance to the 2009 written statement.
The issue here is whether John can execute a will and then later sign a written statement that disposes of his personal property. Traditionally, a will could only incorporate a writing that was already in existence when the will was executed. Therefore, a writing that came in to existence after the will was signed could not be a valid disposal of the property unless the subsequent writing is in the form of a codicil. However, in Virginia, a will can incorporate a list by reference. This list can be executed before, during, or after the will is executed and still be a valid conveyance of property.
Here, John executed his will in 2008. In Article II of the will, he stated that his personal property will be distributed in accordance to a list that will be incorporated by reference. In 2009, John signed a written statement that referred to Article II and distributed his personal property. In Virginia, the 2009 statement is valid. Thus, John’s jewelry will be distributed to Sam, his gun collection will go to Bob, and his automobiles will go to his children. As discussed below, Dana cannot inherit from John because she was adopted by another family. Thus, the automobiles will only go to Steve because Sam cannot take Dana’s share. Additionally, John’s will did not dispose of all of his personal property. Therefore, the remaining property will be disposed of in accordance to Article IV, which is the resudiary estate. The conveyance of this portion of the estate will be discussed in Section C below.
2c. The remainder of John’s estate will go to Steve.
The issue here is whether Dana is included in John’s “heirs at law.” When a will distributes property to the decedent’s heirs at law, the property is being distributed to the decedent’s children. If one of the children has predeceased the decedent, the child’s children (decedent’s grandchildren) will take the child’s portion of the estate. The decedent’s grandchildren will divide the child’s share equally. When a child is adopted in to a family, she takes only from her adoptive parnets. She does not take from her biological parents. The sole exception to this rule is when there is a step-parent adoption, which occurs when one of the childs parents remarries and the child’s step-parent adopts the child. In these situations, the child can take from both of his biological parents as well as the adoptive parent.
In this case, John and Martha are Dana’s biological parents. However, Dana was adopted by her godparents. As Dana predeceased John, any portion that Dana would take will be distributed to Sam. However, because Dana was adopted by her godparents, she cannot inherit from John and Martha. Therefore, John’s heirs at law consist only of Steve. Thus, Steve will get the remainder of John’s estate.