4. Changes to People Between Will Execution and Testator's Death Flashcards
Unless the will provides otherwise, a beneficiary must outlive the testator by ___________ to receive property under the will.
120 hours
What if there is insufficient clear and convincing evidence that the beneficiary survived by 120 hours?
The beneficiary is treated as if the beneficiary predeceased the testator.
What is a lapse?
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.
What is the order of distribution for a lapsed gift?
- Under Express Terms Of Will
- Gift Saved by the Anti-Lapse Statute
- Via Residuary Clause
- Via Intestacy
Purpose of anti-lapse statutes
Prevents lapse by substituting the descendants of the predeceased beneficiary for the predeceased beneficiary.
Requirements for Anti-Lapse Statute to Apply
- Predeceased beneficiary was the testator’s descendant, brother, or sister, and
- Predeceased beneficiary left at least one descendant who survives the testator.
How do you treat a partial lapse in a residuary clause?
Absent a contrary provision in the will, if the testator’s residuary estate is:
- devised to two or more persons,
- the gift to one of them lapses, and
- the anti-lapse statute does not apply,
then the other residuary beneficiaries take the entire residuary estate in proportion to their interests.
Does marriage have any impact on the validity of a pre-marriage will?
No, however, the surviving spouse will have a right of election.
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:
Revoked by operation of law, and the will is then read as if the ex-spouse predeceased the testator.
What effect does filing for divorce or having a separation agreement have on a will?
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.
How does a divorce effect gifts to ex-stepchildren?
Gifts and fiduciary appointments in favor of the descendants of the ex-spouse are not revoked by operation of law.
How does a divorce effect an appointment of a former spouse as the guardian of their children?
An appointment of a former spouse as the guardian of their children is not revoked by operation of law.
If a couple divorces and then remarry, when will be the status of a will that was executed prior to the divorce?
If the couple remarries, all provisions in favor of the former spouse are restored.
What is a pretermitted child?
A child who is born or adopted after will execution.
Circumstances Providing No Protection for Pretermitted Child:
- The pretermitted child is provided for by a settlement, or
- The pretermitted child is provided for or mentioned in the will.