4. Changes to People Between Will Execution and Testator's Death Flashcards

1
Q

Unless the will provides otherwise, a beneficiary must outlive the testator by ___________ to receive property under the will.

A

120 hours

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2
Q

What if there is insufficient clear and convincing evidence that the beneficiary survived by 120 hours?

A

The beneficiary is treated as if the beneficiary predeceased the testator.

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3
Q

What is a lapse?

A

Lapse is where a gift fails (revoked by operation of law) because the beneficiary fails to survive the testator or is treated as if not surviving such as because beneficiary disclaimed the property.

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4
Q

What is the order of distribution for a lapsed gift?

A
  1. Under Express Terms Of Will
  2. Gift Saved by the Anti-Lapse Statute
  3. Via Residuary Clause
  4. Via Intestacy
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5
Q

Purpose of anti-lapse statutes

A

Prevents lapse by substituting the descendants of the predeceased beneficiary for the predeceased beneficiary.

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6
Q

Requirements for Anti-Lapse Statute to Apply

A
  1. Predeceased beneficiary was the testator’s descendant, brother, or sister, and
  2. Predeceased beneficiary left at least one descendant who survives the testator.
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7
Q

How do you treat a partial lapse in a residuary clause?

A

Absent a contrary provision in the will, if the testator’s residuary estate is:

  1. devised to two or more persons,
  2. the gift to one of them lapses, and
  3. the anti-lapse statute does not apply,

then the other residuary beneficiaries take the entire residuary estate in proportion to their interests.

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8
Q

Does marriage have any impact on the validity of a pre-marriage will?

A

No, however, the surviving spouse will have a right of election.

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9
Q

If the court renders a final decree of divorce, annulment, or separation after the execution of a will, all gifts and fiduciary appointments in favor of the former spouse are:

A

Revoked by operation of law, and the will is then read as if the ex-spouse predeceased the testator.

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10
Q

What effect does filing for divorce or having a separation agreement have on a will?

A

Merely filing for divorce or having a separation agreement does not trigger automatic revocation unless the separation agreement has specific language indicating that the parties are waiving their rights under the EPTL.

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11
Q

How does a divorce effect gifts to ex-stepchildren?

A

Gifts and fiduciary appointments in favor of the descendants of the ex-spouse are not revoked by operation of law.

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12
Q

How does a divorce effect an appointment of a former spouse as the guardian of their children?

A

An appointment of a former spouse as the guardian of their children is not revoked by operation of law.

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13
Q

If a couple divorces and then remarry, when will be the status of a will that was executed prior to the divorce?

A

If the couple remarries, all provisions in favor of the former spouse are restored.

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14
Q

What is a pretermitted child?

A

A child who is born or adopted after will execution.

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15
Q

Circumstances Providing No Protection for Pretermitted Child:

A
  1. The pretermitted child is provided for by a settlement, or
  2. The pretermitted child is provided for or mentioned in the will.
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16
Q

What is the pretermitted child’s forced share if the testator had one or more children when the will was executed, and there is no provision for any children?

A

The pretermitted child receives nothing, and is thus on equal grounds with the other children.

17
Q

What is the pretermitted child’s forced share if the testator had one or more children when the will was executed, and there is a provision for one or more children?

A

The pretermitted child shares in the gifts to the other children as if a class gift were made.

18
Q

What is the pretermitted child’s forced share if the testator had one or more children when the will was executed, and there are limited or nominal gifts for existing children?

A

If it appears that the testator’s intention was to make only a limited or nominal provision for children living at the time the will was executed, the pretermitted child receives an intestate share.

19
Q

What is the pretermitted child’s forced share if had no children when the will was executed?

A

The pretermitted child receives an intestate share.

20
Q

What is the source of a forced share for a pretermitted child?

A

Look first to property passing by intestacy, then, all other beneficiaries share proportionately unless doing so would defeat the obvious intention of Testator as stated in the will.