Will - Will Validity Flashcards
What are the 7 reqs for the execution of a valid Will?
“7 POINT TEST”
1) Testator is 18+ YRS OLD;
- 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.
2) Testator signs OR by “proxy” (i.e. someone at testator’s direction and in her presence) PROXY must (i) also sign her name; (ii) CANNOT be counted as an attesting witness; AND (iii) must affix her addy Signature can be ANY mark intending to be a signature (e.g. an “X”) Singnature must be VOLUNTARY
3) Signature at “the END thereof” Signing in the middle of the will WON’T DENY probate, BUT the words below the signature WILL NOT be given effect EXCEPT: the Will IS denied probateIF “all the meat” of the T’s intention is below the signature
4) Witnesses: Testator must sign in front of 2 ATTESTING WITNESSES (or “acknowledge” an earlier signature) IF the Testator forgot to sign in front of witnesses, then it will be DENIED PROBATE IF the Testator signs AFTER the witness, it’s not an issue AS LONG AS it’s “contemporaneous”
5) Publication: Testator must communicate to the witnesses that they are witnessing a WILL (and not some other legal doc) by declaring it to be her “Last Will and Testament”
6) Signature from 2 ATTESTING WITNESSES NOTE: NY does NOT req that each witness sign in EACH OTHER’S presence OR sign in the testator’s presence
7) Entire “execution ceremony” MUST be completed w/in 30 days of FIRST witness’s signing
What is a codicil?
Later amendment OR supplement to a Will that must be executed with the same will formalities as a full Will NOTE: Revocation of a codicil does NOT revoke the underlying will
Who has the burden of proving “due execution” a Will?
The Will proponent (i.e. the person who offers the Will for probate, usually the executor) has the burden of proving “DUE EXECUTION”
What are the rules re: Witnesses’ and proving due execution?
If will is NOTSELF-PROVING,BOTH attesting witnesses’s must testify to the facts nec. to show due execution…IF NOT, then… IF 1 witness is dead, absent, incompetent, OR can’t be found diligently → testimony of the other witness is OK IF NO witness is available →Will proponents must PROVE signature of Testator & 1 witness NOTE: an “attestation cl” (recites ALL the elements of due execution, appearing below the testator’s sig and ABOVE the witnesses signatures) is PRIMA FACIE evidence of the facts presented An attestation cl is NOT a substitute for live testimony from witnesses (it’s just CORROBORATIVE of the witnesses’ testimony) Useful if the witness has a BAD MEMORY or is HOSTILE NOT req’d in NY
What is a self-proving affidavit?
Witnesses sign a sworn affidavit in the presence of a notary public ANY TIME after the will is executed (& attached to Will) that recites ALLstatements they would make if called to testify in court→ has the effect of sworn testimony Will is admissible to PROBATE on strength of the sworn recitals in the affidavit UNLESS an interested party (heir or legatee that would be adversely affected by Will’s admission to probate) objects → proof of due execution IS nececessary then NOT req’d in NY
What is the interested witness statute?
Designed to prevent FRAUD If a will beneficiary is an ATTESTING WITNESS → Will is VALIDBUTgift VOID UNLESS… at least 3 ATTESTING WITNESSES sign & the other 2 are disinterested;OR interested attesting witness would be an INTESTATE DISTRIBUTEE, IF Testator had died w/o a Will (intestate) “Whichever is Least” Rule applies: witness-beneficiary takes the LESSOR of (i) the bequest under the will;OR (ii) his intestate share (i.e. his specific “bequest is VOID) NOTE: an ATTESTING WITNESS can be named as EXECUTOR in the Will→ does not trigger statute.
What is the NY Foreign Wills Act?
States that Will IS admissible to probate in NY IF validly executed under: “E-N-D” Law of the state where it was Executed; NY law; OR Law of the state where T was Domiciled, either at time of Will execution ORdeath. →Once admitted to probate, NEW YORK law governs the construction and application of its prvns
Are holographic and nuncupative wills valid in NY?
Holographic will = written entirely in the testator’s handwriting and signed, BUT NOT witnessed NOTE: remember IF witnessed, then VALID7 Nuncupative will = oral will (via CD, DVD, etc) ————– BOTH VOID in NY EXCEPTION: for armed services during declared or undeclared war (expires 1 year after discharge) & mariners at sea (expires after 3 years after discharge) Foreign Wills Act application: if holographic will is executed in state that recognizes them AND person dies in NY, it would be OK under Foreign Wills Act
Do the intended benefiicaries have a c/a against a negl. lawyer in preparing a Will?
NO b/c there is no privity of K b/t the intended beneficiaries and the lawyer BUT, there IS privity of K b/t the lawyer and the PERSONAL REP of the estate
Who has the power to contest a WIll? What is the application of a No-Contest Clause (express clause within the will…not implied in will by default)
Anyone w/ Standing can contest a Will
Standing is person wil directly interested parties who stand to benefit financially - - beneficiaries under the will or prior will (even if they dont benefit in current will)
No power to contest will
- Creditors of beneficiaries
- Spouses of beneficiaries under prior will (this is not the spouse of the decedent)
- Pretermitted (omitted) heirs bc their share is the same no matter is will is contested or not (non-omitted children can contest)
- Lawyers and executor
No-Contest Clauses - - > express clause design to deter beneficiary from suing over his share by causing him to los his share entirely if does so and lose will contest … In New York, a will may include a no contest clause whereby a testator prevents an individual who contests the will from receiving a benefit under that same will. However will not forfeit beneficiary legacy under following circumstance
- a reasonable cause is based on forgery or assertion that will was revoked by later will
- contest filed by 3rd party on behalf of infant or incompetent
- cause is based on jurisdiction of ctr and not will’s content
- cause on will’s construction and not will validity
- a hearing to conduct preliminary exam of a proponent’s witness, person who prepared will, nominated executor and proponents in probate proceedings
What are the ways to contest a will validity which is valid under the execution terms of the will ?
- Testamentary Capacity (nb, the testator only need to have the bility to know, actual knowledge is not required esp if alert and lucid at the time she signed the will and old age along is NOT sufficient)
- 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.
- Insane Delusion (note that both undue influence and fraud reqs misconduct by 3rd person, but insane delusion arises independently)
- a defect in mental capacity can invalidate part or entire will
- Insane delusion is belief for which there is no factual or reasonable basis but to which the testator adheres despite reason and evidence to the contrary
- Ctr will NOT apply to religious or spiritual beliefs
- Rational-Person Test - - > objective test that looks at whether RATIONAL person in testator position would have come to same decision (prolly not)
- But-For - once show insane delusion exist must show that it was the sole cause of the testamentary disposition …. such that testator would not have disposed of a the property in the same manner but for the insane disposition
NB - remember to discuss causation when analyzing whether an insane delusion exists towards the validity of the will. Unless insane delusion was the cause of the strange disposition there is NO defect in capacity
- Undue Influence (confidential relationship (attorney or physician) and circumstantial evidence (family relationship or guardian with control over well being)
- 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.
- BOP is on the contestant, and is largely a fact-based inquiry.
Confidential relationship
- Putnam scrutiny - in NY whenever a gift is made to lawyer the ctr will automatic inquire in gift no matter the size
- Confidential relationship along doesnt mean undue influence but there will be an influence of undue influence arise when the beneficiary under a will stands in confidential relationship to the testator AND with suspicious circumstance indicating the presence of undue influence
Circumstantial evidence
- 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.
Circumstantial evidence examples checked self out of the hospital against medical advice, beneficiary was substantially a part in execution of will like driving to lawyer’s office to execute will and being present during the will execution also a will as modified left substantially the entire estate to to beneficiary)
Treatment of beneficiary - >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.
- Fraud
must show that fraud at the time of execution of will and show. BOP on contestant to show with clear and convincing evidence
- Beneficiary had the intent to deceive the testator AND
- Purpose of influencing the testatmentary disposition
- w/out fraud the will would not have been executed
Fraud and the INDUCEMENT (lying about the material and factual events)
- knowingly false representation that causes the testator to make a different will than otherwise. Only,valid if the testator would made a different bequest if known the truth (eg a nurse tells a W that children never comes to visit her but honestly the kids always come and the nurse doesnt allow them to see W)
Fraud and the EXECUTION
- fraud as to the very nature of the instrument or its content (eg tell W that she is signing a receipt but actually a will)
Construct Trust (can be requested by P who shows that the trust is invalided by insanity, undue influence or fraud)
- Used to either redress a fraudulent will or any wll that ctr feels unjust enrichment would result if D retained the property
