Changes in Testator's Family after the Will is Executed/Negative Bequests/Variations to Testate Distributions Flashcards
Testator executes a will. He later gets married. Does the marriage have an effect on the validity of the will?
No. But will affect the gifts under the will through elective share, etc.
Testator executes a will. Testator later divorces his spouse. Result on the will?
RULE: When a court renders a final decree of divorce, annulment, or a separation decree after a will is executed, all gifts and fiduciary appointments in favor of the former spouse are revoked by operation of law.
Effect: You read the will as if the divorced spouse predeceased the testator.
Exceptions:
- This doesn’t revoke gifts to divorced spouse’s children (your step-children are not punished)
- An appointment of the former spouse as a guardian of the couple’s children is not affected [good parent rule].
- If the couple reconcile or remarry all provisions in favor of the former spouse are restored.
Note: Remember Anti-lapse does not protect spouses, only brothers, sisters, and issue.
Does a divorced spouse get life insurance proceeds if they are named as the beneficiary under the policy?
NO! A new statute says that divorce decrees, etc. knock out a spouse from things that pass by operation of law, such as :
- Life insurance policy
- Totten Trust, etc.
It is automatic, there is no need to change something like the life insurance beneficiary.
How does the EPTL protect children born after a will was executed?
What are they called?
Pretermitted children are those born/adopted after the will is executed, including those in gestation.
Don’t get them confused with afterborn children, who are children born after the members of a class gift are determiend.
The EPTL protects pretermitted children who are:
- Not provided for by any settlement; and
- Not provided for nor mentioned in the will
(forgotten)
How are pretermitted children treated when:
Testator had one or more children when the will was executed AND no provision is made for any children?
The pretermitted child inherits nothing. [This keeps him on equal footing with the other children].
How are pretermitted children treated when:
Testator had one or more children when the will was executed AND the will made gifts to the other children?
The pretermitted child will share in the amount given to other childrenn as if a class gift was made.
How are pretermitted children treated when:
Testator had one or more children when the will was executed AND it appears that the testator’s intention was to only make a limited provision to the children living at the time the will was executed?
(Limited like $5)
The pretermitted child takes his intestate share, and gets it from each of the beneficiaries proportionately!
This can be huge!
Example: John leaves $5m to his son and $1m to his daughter in a will. Later Peter is born. There is no mention of him in will/any settlement.
Result: Peter gets his intestate share.
Process:
- Find his intestate share by adding the values of the children’s shares together ($6m).
- Divide by 3 here, to find that Peter is owed $2m.
- Reduce all beneficiaries shares proportionately [just state the rule].
(Policy must be that giving a small gift shows the testator didn’t like that child, and that shouldn’t be passed on to the new child)
How are pretermitted children treated when:
Testator had no children when the will was executed?
The pretermitted child takes his intestate share.
What are the effect of words of disinheritance in the common law?
In NY?
Common Law: Negative bequests (words of disinheritance) are not effective with respect to intestacy property when the will does not make a complete distribution of the estate.
NY Negative Bequest Rule: Words of disinheritance are given full effect in partial intestacy.
I.e. “I intentionally make no provision for my disappointing daughter” will prevent daughter from receiving anything in intestacy as well as will.
We treat the disinherited person as if she predeceased.
How do satisfactions of legacies work?
Just like with advancements, at
Common Law: A lifetime gift (gift made after will’s execution) is presumptively made in partial or total satisfaction of the legacy.
New York: There is no satisfaction of legacy UNLESS proved by:
- A contemporaneous writing made at the time of the gift; AND
- Signed by the donor or donee
Can extrinsic documents be incorporated into a will?
Incorporation by reference
Common Law Rule: The extrinsic document can be incorporated if the document was in existence when the will was drafted, the will shows an intent to incorporate the document, and the document identified by language in the will.
New York Rule: Does NOT RECOGNIZE incorporation by reference, period. Everything must be duly executed.
Acts of Independent Significance
Acts of Independent Significance (“nontestamentary acts”)
Doctrine: Acted performed by the testator after the Will is executed which have the purpose or motive independent of any testamentary purpose are given FULL effect when distributions are made.
e.g. Tom executed a will that bequeathed “the car that I own at my death” to his nephew Nick, and “the furniture and furnishing in my living room” to his sister Sara. Thereafter, Tom trades in his 1996 Taurus for a new Porsche, and removes a Rembrandt (worth $1 bill) from his den and mounts it on the wall in his living room. Upon Tom’s death
YES Nick takes the PORSCHE
YES Sara takes the rembrandt
EXCEPTION: title documents: e.g. deeds, stock certificates, bank passbooks - can only be transferred as mandated by law (e.g. if title doc was sitting in a yacht and will said “my yacht and its contents to bill” - bill doesn’t get the deed.
