changes in testator's family after will is executed and negative bequests Flashcards
testator marries
In NY, marriage following execution of Will has no effect on Will, but may affect gifts and dispositions under the Will.
a) Rationale: NY’s elective share statute protects surviving spouses from disinheritance after death.
testator “unmarries”
If Court renders a FINAL DECREE of divorce, annulment or separation after execution of Will, all gifts and fiduciary appointments in Will in favor of former spouse are revoked by operation of law—narrower than DISMAL (higher standard here for an overt act, than intestacy which is an omission).
a) Effect on Will: on divorce, read will as though former spouse predeceased testator (to residuary).
EXCLUSIONS
1) But, all gifts and fiduciary appointments in favor of issue (son or daughter) of former spouse is NOT revoked by operation of law—issue still take.
2) But, appointment of former spouse as guardian of couple’s children is NOT affected
3) But, if couple reconcile and remarry, all provisions in favor of former spouse are restored.
b) Upon divorce, statute now revokes life insurance, trusts, Totten Trusts, and Right of Survivorship Estates (rendering tenancy-in-common), even if unchanged.
children born or adopted after will is executed
a) Context: EPTL gives no protection to children alive (but not mentioned) when Will executed (they are disinherited). EPTL attempts to treat pretermitted children born or adopted after Will executed the same as siblings, to avoid omitting afterborn child from sharing distribution with siblings.
b) General Rule: EPTL only protects pretermitted children (born or adopted, even if non-marital) who are:
1) born or adopted after Will is executed; AND
(a) Note: child must be gestation to count as pretermitted child; can’t use frozen embryos.
2) neither provided for nor mentioned in Will; AND
3) not provided for by any other settlement (e.g., life insurance).
(a) Note: amount of insurance policy irrelevant; it shows you thought about the kid
(b) Note: Do not confuse this with satisfaction of legacies.
c) NY Pretermitted Child Statute
1) If T had 1+ children when Will executed + no provision for any kid → afterborn gets nothing
2) If T had 1+ children when Will executed + will made gifts to testator’s other children → afterborn shares in amounts/gifts as if class gift (so reduces other kids’ share, doesn’t affect other beneficiaries).
(a) But, if T’s intention to make limited provision to kids at the time → afterborn child gets INTESTATE share, which comes from the other beneficiaries proportionately.
(i) Limited Provision: will be obvious; afterborn doesn’t lose merely because T hated other kids!
3) If Testator had NO other children when Will executed → afterborn gets INTESTATE share!
4) If existing children are given different amounts → afterborns take proportionate share of each gift.
(a) Example: “I give $1mm to son Michael and $5mm to son David.” Then T adopts Ed. Ed gets $2mm ((1+5)/3): $333,333 (1mm * 1/3) from Michael, $1.667mm (5mm * 1/3) from David.
negative bequests
CL Rule: When Will doesn’t make complete disposition of estate (so partial intestacy) words of disinheritance in Will are wholly ineffective → property passing by intestacy governed by intestacy statute, not Will.
NY Statute: Words of disinheritance in Will given full effect, even in partial intestacy. So, person disinherited in Will can’t receive a gift as an heir in intestacy (treat as having predeceased testator). But, that person’s issue can still take via representation under anti-lapse, unless the testator specifically disinherits them as well.
1. Example: Tammy’s Will devises Blueacre to Son Simon and residuary estate to husband Huck. Will provides: I intentionally make no provision for daughter Dorothy, as he has been a great disappointment to me.” Tammy divorced Huck in 2004 and dies in 2007 without having changed Will. Survived by Simon and Dorothy. Dorothy had no children. Dorothy gets nothing. Distribute estate as though Dorothy predeceased Tammy. Simon gets it all. If Dorothy had children, they’d get 50% partial intestacy (ie 50% of residuary estate) through anti-lapse as issue, since Tammy did not disinherit Dorothy’s children.
