restrictions on disposition; will contests and contracts

Question 1

Certain personal property is exempt from being part of the estate. The spouse or minor children have title to the exemptions. They are the following 5 things

Answer 1

1. Furniture, appliances, electronics up to $20,000
2. Books, DVDs, CDs, and software up to $2500
3. Animals farm equipment and tractors up to $20,000
4. A car up to $25,000
5. Money not exceeding $25,000

Question 2

What are the 6 grounds on which a will can be deemed invalid in a will contest – will contests are always about whether the will is a valid one

Answer 2

1. Defective execution
2. Valid revocation
3. Lack of testamentary capacity
4. Undue influence
5. Fraud
6. Mistake

Question 3

The proponent must prove lack of testamentary capacity at the time of execution. What are the 4 components that establish one has testamentary capacity?

Answer 3

Have testamentary capacity, the testator must have sufficient capacity to:

1. Understand the NATURE OF THE ACT he’s doing
2. Know the nature, condition, and extent of his beneficiaries (family and friends)
3. Know the NAMES of, and his RELATION to, the natural OBJECTS he owns, and
4. Understand the SCOPE and MEANING of the provisions of his will

Question 4

If the proponent seeks to prove undue influence on the testator, the person must prove by fair preponderance of the evidence the following 3 things

Answer 4

1. Existence and exertion of influence,
2. Effective operation of such influence subverting the testator’s mind as he executed the will, and
3. Execution of the will that would not have been executed absent such influence.
   The testator’s will must be OVERPOWERED – mere cajoling, nagging, threats do not constitute undue influence.

Question 5

Under what circumstances is a bequest to a person and a confidential relationship with the testator inferred to be the product of undue influence? How is that presumption rebutted?

Answer 5

Where a party in a confidential relationship with the testator was involved in drafting the will, there’s an inference that any gift to that party was the product of undue influence. The burden shifts to the beneficiary to prove by corroborating evidence the circumstances demonstrating that the gift was freely made.

Question 6

If an attorney drafts of will that designates the attorney as the executor, the attorney must disclose 4 things and receive a written acknowledgment from the testator

Answer 6

The attorney must disclose: 1. Any person can be an executor

2. Executors are entitled to statutory commissions
3. Absent execution of a disclosure acknowledgment, the attorneys commission will be HALF of the STATUTORY COMMISSION,
4. The attorney will also be entitled to attorneys fees for legal services rendered to the estate

Question 7

A will or particular gift therein is invalid if it’s the result of fraud. There are 4 elements to fraud in estate law

Answer 7

1. FALSE REPRESENTATIONS that the speaker knew to be false
2. Made with INTENT TO DECEIVE the testator
3. The testator’s IGNORANCE of the FALSITY, and
4. RELIANCE on those representations, such that there’s a different will than he otherwise would have made.

Question 8

With respect to mistake invalidating a will, there are 3 situations to consider. With respect to each of the 3 say whether relief will be granted: 1. Where the party signed the wrong will? 2. Where there is mistake in the inducement (the reasons for signing the will short of fraud or undue influence)? 3. Mistake as to the contents of the will?

Answer 8

1. Where the wrong will assigned, RELIEF GRANTED.
2. For mistake in the inducement short of fraud or undue influence, NO RELIEF GRANTED.
3. When mistaken as to the contents of the will, relief may be granted where there is clear and convincing evidence that a provision was omitted by mistake. If the will is unambiguous, however, evidence is not admissible to show mistake of contents.

Question 9

Who has standing to contest a will?

Answer 9

Any person who has an economic interest that would be adversely affected by the wills admission to probate may file objections. This includes a beneficiary under earlier will, but not a fiduciary an earlier will who’s only interest is commissions from appointment.

Question 10

What is a no contest clause in the will?

Answer 10

A no contest clause is a cause that states you are disinherited if you challenge the will in court.

Question 11

Are no contest clauses enforceable in New York?

Answer 11

Yes! Generally, no contest causes are enforceable in New York. However, the following actions do not result in forfeiture: 1. A contest based on forgery or revocation, 2. Objection to the jurisdiction of the court, 3. A fiduciary suing on behalf of an infant or incompetent, 4. An action to construe a wills terms, 5. Discovery to see if grounds to contest the will exist.

Question 12

May a contract to make a will or not revoke a will or trust be enforceable in New York? Under what circumstances?

Answer 12

A contract to make or not revoke a will or trust must be in writing and signed by the party charged there with.