NY Wills

Question 1

Statute code governing wills

And overarching principle

Answer 1

EPTL (Estates, powers, and trsuts law)

Testamentary freedom

Question 2

Intestacy: triggering events (3)

Answer 2

dies w/o will

will is found INVALID

will does not dispose of ALL property (partial intestacy)

Question 3

Intestacy who collects (3):

Answer 3

1. Surviving spouse
2. Issue
3. Remote collateral (distant relatives)

Question 4

Intestate Share of Surviving Spouse:

who qualifies?
how much collect?
what does it mean to survive?

Answer 4

Actual marriage, including if separated. NOT if only partners, NOT if divorced (decree?). AND NOT if abandonment (voluntary, permanent, and nonconsensual).

If no issue, EVERYTHING
If ISSUE, then 50,000 + 1/2 rest

Simultaneous death problem:
UNIFORM SIMULTANEOUS DEATH ACT - if insufficient evidence then treat each decedent as if his/her spouse predeceased her. Need clear & convincing evidence that survived spouse by MORE THAN 120 DAYS. Rule does not apply if application would lead to escheat to the state. (Cf. old approach: prove by preponderance of evidence that other one predeceased)

Question 5

Vocab: heir, decedent, codicil, holographic, noncupative

Answer 5

Heir ≠ devisee.

Decedent DIES

holographic = handwritten
noncupative - oral

Question 6

Intestate Share of Issue:

How much?
Who counts as issue (3)?

Answer 6

if no surviving spouse, EVERYTHING
if surviving spouse, the remaining 1/2 (-50,000) that the SS didn’t take

1. Natural-born biological children, including posthumously born
2. Adopted children: Adoption generally REPLACES the natural parents with the adoptive parents. EXCEPTION (idea: step-father who adopts!): a. decedent died after 1987, b. decedent was child’s grandparent (or descendant), AND c. adoptive parent is married to biological parent.
3. nonmarital children can inherit from MOTHER. can inherit from FATHER only if (a) marriage, (b) behavior, (c) blood test, (d) adjudication, or (e) acknowledgment in writing filed with Registry.

(FYI: natural parent loses right to inherit from child)

Question 7

Intestate Share of Issue, cont’d

Dividing it among the issue (3 methods)

Answer 7

“Equally near, equally dear”, treats PEOPLE the same, NOT family lines. RULE: issue take by representation, and this means per capita at each generation.

NY Procedure (treat PEOPLE the same) (NAME: per capita at each generation):
1 divide at closest generational level (including dead)
2 distribute
3 rebundle and divide again, EXCLUDING descendants of folks who received

Cf. Per Stirpes (Principle: treat LINES the same)

Cf. Modern Per Stirpes (same but initial division is made at generation nearest to decedent)

Question 8

Intestate Share of Remote Collaterals

Order (it’s intuitive!)

Answer 8

Surviving parents (Mom & Dad)
Issue of parents (Cyn, etc)
Grandparents (Lake)
Issue of Grandparents (uncles, cousins, etc)

Question 9

Will Act Formalities (IMPORTANT!)

Answer 9

Three requirements for a will to be valid. It must be (1) in writing, (2) signed by the testator in the presence of witnesses, and (3) signed by at least two witnesses. (ie. three signatures.)

WRITING: Rare exception: nuncupative wills permissible for army guy on active duty.

TESTATOR SIG: must come at END of will. What follows will be ignored. Signature can be mark or can be by another at T’s direction.

WITNESS: witnesses must be COMPETENT, ie disinterested. need not be present with each other? Rare exception: army guy.
PURGING STATUTE: if witness, then inheritance limited to share of what would’ve taken in intestacy

OTHER: collating okay,

NO INCORPORATION BY REFERENCE (except to intervivos trust, pour over will)

Question 10

Will act: : Purging Statute

Answer 10

witness to will is limited to what he would take in intestacy

Question 11

Will Act Formalities apply to changes?

codicil

Answer 11

YES: same rules

codicils - amendemnts to a will. any testamentary document that does not revoke a prior will is a codicil!

Question 12

Will Act: acts of independence sig

what are they
are they ok

Answer 12

Refer to acts beyond testators control (eg lock box)

Question 13

Will Substitutes

Effect
List (8)

Answer 13

Don’t pass through probate!

Revocable Trust
Pour over wills
Bank accounts for the benefit of someone else
K payable on death
Life insurance
Joint tenancies 
Totten Trusts

Question 14

Ways to Revoke a Will (3)

Answer 14

subsequent testamentary instruction, physical act, operation of law

Question 15

Ways to Revoke a Will: subsequent testamentary instruction

Answer 15

Subsequent Will or Codicils must meet will act formalities.

Can revoke expressly or by IMPLICATION.

Revocation of a will revokes all codicil to that will; but revocation of a codicil revives the original will

Question 16

Ways to Revoke a Will: physical act

• -

Answer 16

Requries (1) burning, tearing, canceling, obliterating or detroying (2) WITH the intent to revoke (DRR?).

NO partial revocation. (eg tearing out ¶)

PRESUMPTION of physical revocation if will was in testator’s possession and cannot be found

Dependent relative recovation (when testator is mistaken about the effect of revocation). Tears up Will 2, thinking that it will go to Will 1. Result: invalid intent, and Will 2 remains in place.

(TP okay, if at direction)

Question 17

Ways to Revoke a Will: Operation of law

OJO

Answer 17

Divorce will revoke bequests

BUT WATCH THE DATE OF A CODICIL! changes the effective date

Question 18

Revival of Old Will

Answer 18

Revoking Will 2 does NOT automatically restore Will 1

Question 19

Dependent Relative Revocation

Answer 19

Dependent relative recovation (when testator is mistaken about the effect of revocation). Tears up Will 2, thinking that it will go to Will 1. Result: invalid intent, and Will 2 remains in place.

Question 20

More vocab

bequest
devise
disposition

Answer 20

disposition gifts in will
devise - real proeprty
bequest personal property

Question 21

Four kinds of dispositions

Answer 21

Specific, demonstrative, general, residuary

Specific - specific dispostion (house, stamp collection)

Demonstrative - disposition of money from a specific source of funds (1000 from my GM stock). NB: SHORTFALL is made up from GENERAL funds.

General - disposition of money

Residuary - catch-all, ie what’s left

Question 22

Debts of the Estate are satisfied in what order?

Answer 22

Intestacy
Residuary
General 
Demonstrative 
Specifc

Question 23

Lapsing and Ademption, generally.

Answer 23

If beneficiary predeceases the testator, the gift lapses (fails). If the property that is subject of a specific disposition is transfered before death, then the gift is adeemed (fails).

EXCEPTIONS: (1) anti-lapse statute , and (2) class gifts

Question 24

Anti-Lapse Statute (IMPORTANT)

-

Answer 24

Prevents a disposition from lapsing (failing) if (1) it was to testator’s predeceasing SIBLINGS or ISSUE, and (2) this person has ISSUE of his/her own.

Just a presumption. Express language of will controls.

Question 25

Class gift (re Lapsing)

Answer 25

First, apply Anti-Lapse Statute

Second, if ALS does not apply, THEN consider class gift exception, which provides that class members will get the gift if it is CLASS MINDED.

Question 26

Ademption -

generally
where it gets tricky

Answer 26

Generally, when proeperty is no longer in the estate.

Tricky: where left estate through no choice of testator. RULE - if property left estate through no action of the testator, then the law will presume that the Testator did not intend the disposition to fail.
APPROACHES - cahracterize as general OR treat the extinction as a change in form, not substance

SOME extrinsic evidence is admissible to demonstrate mistake

Question 27

Three surviving spouse protections

Answer 27

homestead exemption, personal proeprty set aside, and elective shar

Question 28

Three surviving spouse protections: 1. homestead exemption

Answer 28

150,000 of real property in NYC
125,000 for nearby counties
75,000 everywhere else

Question 29

Three surviving spouse protections: 2. personal property set aside

Answer 29

Hodgepodge of things. People won’t come get the personalty. Dollar limits:

• books etc 2.5k
• car 25k
• farm machinery etc 20k
• furniture etc 20k
• money up to 25k

Question 30

Three surviving spouse protections: 3. ELECTIVE SHARE (SUPER IMPORTANT!!!!!)

rule
exceptions
SOL
calculating

Answer 30

Except in certain instances, a surviving spouse can always choose to take an ELECTIVE SHARE against the will in the amount of 50,000 or (OR!!!) 1/3 of the NET estate.

EXCEPTIONS: (1) pre-nump! or waiver in signed writing (2) stautory abandonment!

SOL: must be made only during life of SS and must be excerised (a) within 6 mos. of probate AND (b) no more than 2 years after death!

CALCULATE NET ESTATE: [Gross estate] - [debts and expenses]. Gross estate include not only probate property but also NONPROBATE property:
1. the probate estate
2. gifts made in contemplation of death
3. joint bank accounts
4. joint tenancies with right of survivorship
5. transfers within 1 year of decedent’s death to the degree there was not sufficient
EXCLUDED: life insurance and irrevocable transfers

Question 31

Gifts to Children: Advancement

Answer 31

Lifetime gifts can be treated as advancements against inheritance if donor-decedent demonstrated such an intent in a CONTEMPORANEOUS WRITING with the gift. (Think: mom to Ellen);

Also operates against intestate share.

Question 32

Gifts to Children: Pretermitted Child

OJO

Answer 32

Who: (ME!) born after a will

RULE: presumption that omission was accidental. If T had NO CHILDREN when will was written, then afterborn child will be entitled to intestate share. But if T HAD CHILDREN then afterborn children entitled to get slice of what was left to the kids.

EXCEPTIONS: 1. if omission was intentional (watch effective date) 2. if T provided for child outside of the will, or 3. other mention of kid in will.

Watch codicils that change the effective date!

Question 33

Bars to succession (3)

Answer 33

Homicide: killer is treated as predeceasing decedent. No bar if killer was insane at time.

Disclaimer: treat as if predeceased. REQUIRED to be in writing, accompanied with affidavit that there was no consideration

Disqualification: when survingn spouse ABANDONS, ABUSES or fails to support.

Question 34

Restraints on Marriage

Answer 34

Invalid if total; valid if partial (jew, ex)

Question 35

Will Contests: 5 grounds upon which ot challenge

Answer 35

lack of testamentary capacity

insane delusion

undue influence

fraud

duress

Question 36

Will Contests (5): Lack of Testamentray Capacity

Answer 36

T must be 18 years old and posses a sound mind and memory. T must be CAPABLE of knowing (1) the nature of the act, (2) the nature, character ,and value of his property, (3) “the natural objects fo his bounty, (4) that he is executing a will, and (5) the plan of the attempted disposition.

KEY: need not KNOW, need only be CAPBALE of knowing.

Result? WIll is VOID and struck down.

Question 37

Will Contests (5): Insane Delusion

Answer 37

“Rational Person test” If T has a beleif about the world for which there is no factual or reasonable basis. (Paranoia)

But-for causation required. Did delusoin cause strange disposition?

Question 38

Will Contests (5): Undue Influence

issue spot
burden framework

Answer 38

Issue spot: disposition to neighbor or caregiver

Contestant bears BOP to show undue influence. However, there is a PRESUMPTION of undue influence when there is (1) a confidential relationship between T and the beneficiary [eg atty, doctor] and (2) suspicious circumstances.

Beneficiary exerting Undue Influence is treated as PREDECEASED!

Constructive trust maybe also

Question 39

Will Contests: Fraud

Answer 39

Fraud is a defense where misrepresentations were made intending to and in fact causing the T to make a particular disposition. Two types:

• Fraud in the excecution (T doens’t know it’s a will)
• Fraud in the inducement (Child 1 says Child 2 never came to visti)

Impose constructive trust for benefit of those denied disposition.

Question 40

Will Contests: generally

req

Answer 40

Arises in notice probate. Surrogate’s Court

Standing requirement: contestant must be someone who will benefit, ie somone who would take in intestacy. State AG has standing on behalf of charitable organizations

Question 41

Will Contests: No Contest clauses

Answer 41

No contest clauses are VALID, but there are certain types of contests that do not trigger their enforcement:

• FORGERY claim (bc otherwise forger wld just forge with such a clause!)
• challenge on behalf of CHILD or INCOMPETENT (bc it’s not actually them stirring trouble!)
• objection to JURISDICTION!

Question 42

Probate: Appointing Personal Representative

order

dutiies

Answer 42

aka EXECUTOR

• will can expressly appoint
• otherwise, order of preference:
  1. SS
  2. children
  3. grandchildren
  4. parents
  5. siblings
  6. other distributee, with preference for larger share

DUTIES: inventory, manage, pay creidotrs and taxes, distribute

Question 43

OTHER:

living wills
durable health care power
power of atty

Answer 43

living wills valid

durable health care power - designates rep if you beecome incapacitated

Question 44

rule to admit a will to probate

MODEL ANSWER

Answer 44

The general rule provides that in order to admit a will to probate, the will proponent must (i) SUBMIT THE ORIGINAL WILL and (ii) DEMONSTRATE that the will has been executed with the requisite testamentary formalities. Briefly discuss these formalities here (i.e. writing, signed by the testator in the presence of 2 witnesses, etc.)
(iii) Where the original will cannot be found, or is found destroyed or obliterated, there is a rebuttable presumption that the will was destroyed by the testator with the intent to revoke that will.

Question 45

Elective share: last step

Answer 45

Don’t forget: Once you determine what spouse inherits, note that all beneficiaries must contribute proportionally and the rest will fall in place.

Question 46

Model answer, Contesting on the basis of Testamentary Capacity

Answer 46

In New York, in order to execute or revoke a will, the testator must be at least 18 years of age and possess a sound mind at the time of execution or revocation. The requisite mental capacity is considered less than that needed to enter into a contract, and merely requires a testator have the ability to understand: (i) the nature of their action, (ii) the nature, character, and value of their property, (iii) the objects of their bounty, (iv) the fact that they are executing a will and (v) the plan of disposition. As a general rule, testators are presumed to have such mental capacity, and the burden of proving to the contrary is on the contestant. Absent testamentary capacity, a will is invalid and cannot be admitted to probate.

Question 47

Model answer, undue influence

Answer 47

See below, but ADD burden shifting!

A will contest also can be based on undue influence. Undue influence is coercion exerted by a third party with the intent to influence the testator in such a way as to overpower the testator’s free will and intent. Again, the burden of proof is on the contestant, and is largely a fact-based inquiry. Courts consider the family relations of the testator, the dependency on the alleged individual, the actions of the person alleged to be exerting control, the physical and mental health of the testator, and the opportunity to wield such influence. A beneficiary who exerts undue influence is treated as having predeceased the testator to the extent that the gift to her exceeds her intestate share of the testator’s estate.

Question 48

Model answer, elective share

Answer 48

Under New York law, a surviving spouse is entitled by operation of law to take the greater of $50,000 or 1/3 of the decedent’s net estate, along with certain exempt personal property such as family photos, a motor vehicle not exceeding $25,000 in value, farm equipment, domestic animals, household furnishings, and money or personalty not to exceed $25,000, unless the decedent’s remaining assets are not sufficient to cover funeral expenses. This is irrespective of what is left to the spouse under the will.

**The elective share is satisfied first from property received by the surviving spouse under the will, and if that amount is less than the 1/3 or $50,000 required under the law, then the remainder comes from pro rata contributions derived from all other beneficiaries under the will and recipients of testamentary substitutes.

Question 49

Model answer, contesting based on interested witness

Answer 49

Under New York law, a will must be signed, or the signature acknowledged, in the presence of no less than two witnesses within 30 days of one another. There is nothing in the law which disqualifies a beneficiary under the will from being a witness. The only consequence of having a witness with an interest in the estate is that the gift to the interested witness may be reduced or voided.

Question 50

Gift to Attorney

Answer 50

Putnam Scrutiny

In New York, when a will involves a gift of any size to a drafting attorney, the Court must make an automatic inquiry known as “Putnam Scrutiny” to determine the voluntary nature of the gift. There is a rebuttable presumption under such circumstances that the attorney exerted undue influence. The burden of proof shifts to the attorney to demonstrate that the gift and the will were the product of free and voluntary actions on the part of the testator.

Question 51

Whether witness may receive gift

model answer

Answer 51

Under New York law, a gift to a witness of a will is void unless there are two additional witnesses without an interest in the will. Also, an interested witness with intestate rights is entitled to receive the lesser of the intestate share or the gift under the will.

[Here, Theresa died with no spouse and one daughter, Debra. Thus, Debra’s intestate share of the estate would have been the entire estate. Consequently, because her gift under the will is less than the entire estate, she will be eligible to inherit the diamond ring irrespective of having been a witness to the will.]

Question 52

Ademption issue: whether a beneficiary is entitled to the proceeds from the sale of an object when the will bequests the object to the beneficiary

model answer

Answer 52

The doctrine of ademption requires that if the subject matter of a specific bequest is missing, destroyed, or not owned by the testator at the time of death, the beneficiary takes NOTHING. In New York, there is an exception to that rule that applies only if the object of a specific bequest is sold while a testator is incompetent. Here, the painting left to Debra was sold, and the proceeds put in a bank account that was left to granddaughter Gina. Debra has no claim to those proceeds or the painting which is no longer part of the estate. Even if Theresa intended to keep the proceeds from the sale of the painting in a separate bank account so that Debra could receive the money instead of the painting, such intent is irrelevant under the doctrine of ademption.

Question 53

Whether an attorney that drafted a will and is named Executrix is entitled to receive a commission for serving as Executrix and legal fees for administering the estate.

Answer 53

Attorneys drafting wills in which the attorney is named executor must provide WRITTEN disclosure to the testator that (i) any person can be named executor; (ii) commissions are paid to executors; and (iii) attorneys fees will also be charged in representing the estate. The failure to obtain this written disclosure SIGNED by the testator and two witnesses results in a 50% reduction in the commission the attorney is entitled to earn from the estate.

[Here, Ann the attorney disclosed to Theresa that anyone could be named executor, and that she would be entitled to commissions and legal fees. However, this disclosure was oral and not in compliance with the EPTL which requires a writing signed by the testator and at least two witnesses. Thus, although Ann will be entitled to collect legal fees for administering the estate, any commissions earned from acting as Executrix will be reduced by half.]

Question 54

Elective Share, EXCLUDED Testamentary Substitutes

Answer 54

Gifts within gift tax exclusion
Life insurance
Irrevocable transfer before marriage
Irrevocable trust more than one year before death

Question 55

Model answer, testamentary capacity

Answer 55

Remember 18, remember burden!

In order to execute a will, the testator must be at least 18 years of age and possess a sound mind. A testator lacks the requisite mental capacity if he, at the time of execution, did not have the ability to know the nature of his act; the nature, character and value of his property; the natural objects of his bounty; the fact that he is executing a will; and what his planned disposition of assets is. The law presumes that testators have capacity, and the burden of proving to the contrary is on the will contestant.

Question 56

Model answer if Tenancy by the Entirety

Answer 56

Tenancy by the entirety is a joint tenancy between married persons with a right of survivorship. Thus, because Spouse is a tenant in the entirety and has a right to survivorship, she will get to keep the family’s residence.

Question 57

Model answer re elective share

Answer 57

interest 7 mos after issuance of letters testamentary!

In New York, a surviving spouse is entitled to the greater of $50,000 or one-third of the decedent’s net estate (after debts, administration expenses, and funeral expenses, but before taxes). In addition, the surviving spouse shall receive six percent interest beginning seven months after the issuance of the letters testamentary to the executor/administrator. In New York, there are certain issues relating solely to the survivorship estate (i.e., joint tenancy; joint and survivor bank accounts) as a testamentary substitute. If the survivorship estate is between the surviving spouse and the deceased spouse, then only one-half of the estate will be considered a testamentary substitute regardless of which spouse furnished the consideration.

Question 58

Model answer re No Contest Clauses

Answer 58

New York recognizes the validity of no-contest clauses. A no-contest clause is an express clause within a will designed to deter a beneficiary from suing over his share by causing him to lose his share entirely if he does so. The exceptions to the enforcement of no-contest clauses include contests based on forgery, revocation of a will by presenting a subsequent will, jurisdiction, proceedings brought on behalf of infants or incompetents, and proceedings brought for the construction of a will’s terms.

Question 59

Model answer for other beneficiary’s after Spouse takes elective share

Answer 59

Surviving spouses are entitled to share in a testator’s estate, irrespective of that which is provided for under a will. Spousal rights are satisfied first from property already received by the estate, then from the rest of the estate. Recipients of testamentary substitutes, testamentary beneficiaries, and intestate distributees contribute ratably.

Question 60

Model answer, complying with Will Act

do witnesses need to know?

Answer 60

PUBLICATION REQUIREMENT!

For a will to be admissible to probate, the testator must meet the formal statutory requirements for a valid will. Under the New York Estates, Powers, and Trusts Law (EPTL), in order to validly execute a will, the testator must be at least 18 years old and competent, the testator must sign the will at the end of the document, the testator must sign the will in the presence of or acknowledge his signature to at least two witnesses. Additionally, the two witnesses must sign the will. The witnesses do not have to sign in each others’ presence but must attest to the testator’s signature within 30 days of one another. Lastly, the testator must declare to the witnesses that the instrument is a will. This is also known as publication.

Question 61

Model answer, $1 gift to son.

Answer 61

A general legacy is a gift of personal property that the testator intends to be satisfied from the general assets of his estate. Under New York law, a testator is not required to make any testamentary gifts to a child, natural or adopted. Furthermore, New York law permits an individual to disinherit an heir by properly executing a will expressing such intent, even if not all property is disposed of within the will. Dad’s clear intent was to only bequeath one dollar to Sam, as he included the language “which is more than he deserves.” This bequest will be upheld and enforced if the will is admitted to probate.

Question 62

Model answer, when residual legacy > elective share

Answer 62

Under New York law, the surviving spouse is entitled to either the bequests set forth in the decedent’s will or the elective share. Under the elective share, a surviving spouse is entitled to the greater of $50,000 or one-third of the decedent’s net estate. The net estate is the amount left after debts, administration expenses, and funeral expenses, but before taxes. Here, Willa is entitled to the “rest, residue, and remainder” of Dad’s estate as bequeathed to her in the will. In this case, the “rest, residue, and remainder” of Dad’s estate would be comprised of the entire estate minus the one dollar to Sam, Dad’s interest in GP that he bequeathed to Dora (which the facts indicate was less than 10% of Dad’s estate), and any amount that Baby would be entitled to receive under the rules regarding pretermitted children.

Question 63

Model answer, pretermitted child

Baby

Answer 63

Under the New York Estates, Powers, and Trusts Law, a pretermitted child is a child born or adopted after a will has been executed and thus is omitted from the will. If the testator had living children at the time of the execution of the will, the omitted child will share in the disposition to the testator’s other children. The omitted child will take the same quality or type of interest as the bequest to the other children. If the testator left the existing children a limited provision effectively disinheriting them, such as a bequest of one dollar each, the omitted child will receive an intestate share. Here, Baby was born one month after Dad’s death. Thus, Baby was not provided for in the will because he was born after the will was executed and is a pretermitted child. Since Baby has not been provided for by Dad in any other instruments, such as a life insurance policy or Totten trust, in lieu of a provision in the will, Baby is entitled to share in the disposition to Dad’s other children. The only existing child that is provided for in the will is Sam, Dad’s adopted son. Dora, described as Dad’s wife’s daughter, is not Dad’s child and her gift is not factored in to determine Baby’s gift under the will. Sam’s gift was only one dollar. Since Sam’s gift was nominal (a limited provision), it effectively disinherited him. As a result, Baby is entitled to his intestate share of Dad’s estate instead of being required to share in the one dollar that was bequeathed to Sam. Baby’s intestate share would be one-quarter of Dad’s net estate.

Question 64

Model answer, intestacy rules

Answer 64

Don’t forget to include basics!

Under the EPTL, a decedent is considered to have died intestate if his or her will is not admitted to probate. The New York intestacy statute sets forth the requirements for distributing a decedent’s estate using a per capita at each generation distribution. If the decedent leaves a surviving spouse and issue, the surviving spouse takes $50,000 and half of the remainder of the net estate. The balance of the estate will be distributed to the decedent’s issue by representation. Issue includes any adopted children, as they have the same rights as biological children.