Wills Flashcards
NY testamentary gifts called . . .
Dispositions
Valid will requirements
- 18 and competent
- Sign at end of document
- In presence of 2 Ws or acknowledge his sig to 2 Ws
- Ws must sign w/n 30 days of each other
- Testator must tell Ws it’s a will
Four kinds of NY dispositions
Specific
Demonstrative
General
Residuary
Specific disposition
Gift of specific property
General disposition
Money from the general estate
Demonstrative disposition
Money from a specific source.
- shortfall made up from general funds
Priority of debts owed by estate
- Specific
- Demonstrative
- General
- Residual
- Intestacy
NY Anti-Lapse Statute
No lapse if testator’s sibling/issue but only if the predeceasing beneficiary has issue of his own.
If residuary beneficiary lapses . . .
Estate goes by intestacy
Intestate share of SS
- No issue –> Everything
2. Issue –> 50K + 1/2 of the rest of the estate
Abandonment precluding SS intestate share
- Voluntary
- Permanent
- W/o consent of abandoned spouse
NY simultaneous death
If spouses die 120 hrs (5 days) of each other, they are presumed to have died simultaneously
NY Intestate share of issue
Per capita at each generation
“equally near, equally dear”
- Divide, Distribute, Re-bundle, Divide Again
Who count’s as issue
- Natural children
- Post-humously born children
- Adopted children
When can adopted child inherit through natural parent?
- Decedent was the adopted child’s grandparent or descendant of grandparent
- Adoptive parent is married to child’s bio parent
When can wedlock child inherit from father . . .
- Marriage - F later married bio mom
- Behavior - F held out child as his own
- Blood test - while F alive
- Adjudication - while F alive
- Writing - F made doc acknowledging paternity
Intestate priority of remote collaterals
- Parents
- Issue of parents
- Grandparents
- Issue of grandparents
NY purging statute
If W is a beneficiary in the will, W’s share is purged (in excess of W’s intestate share)
Modifications to a will
Codicil
Valid codicils
Must comport with all will formalities
Modification of will act formalities
Integration
Incorporation by reference ( NOT NY)
Acts of independent legal significance
Will substitutes
Revocable trusts Pour over wills Bank accounts for another's benny Ks w/ payable on death provisions Life Insurance Joint tenancies Totten trusts Gifts causa mortis
Subsequent will vs codicil
If a later will is not entirely inconsistent w/ prior will, it is only a codicil
Methods of will revocation
- Subsequent testamentary instrument
- Divorce
- Physical act
Revocation of a codicil
Revives original will
Revocation by physical act
- Any act of destruction
- Material portion
- W/ intent to revoke
Presumption of destruction by physical act
- Will last in testator’s possession
2. Cannot be found after death
Ademption
Disposed property no longer in estate at time of death
3rd party revocation by physical act
- At testator’s direction
- In testator’s presence
- Proved by 2 Ws
Court avoidance of ademption
- Interpret the disposition as general instead of specific
2. Treat extinction as change in form not substance
Protections for a SS
- Homestead exception
- Personal property set-aside
- Elective share
Elective share
50K or 1/3 of the net estate, whichever is higher
Lifetime gifts to children
Treated as advance against inheritance if donor-decedent demo’d intent in contemporaneous writing
Elective share net estate
- probate property
- Gifts made in contemplation of death
- Joint accounts
- Joint tenancies
- Revocable trusts
- Power of appointment
- Money in a deferred comp plan, pension, profit-sharing plan, stock bonus plan, death benefit plan
- Any transfer of property made w/n 1 year to extend he didn’t get adequate compensation
*SUBTRACT DEBTS/EXPENSES
Pretermitted Children Rule
No kids –> intestate share
Kids –> share of gift left to earlier kids
Bars to succession
- Homicide
- Disclaimer
- Disqualification
5 attacks of testator’s mental state
- Capacity
- Insane delusion
- Undue influence
- Fraud
- Duress
Capacity
Capacity (not actual knowledge) of:
- Nature of act
- Nature, character, and value of property
- Natural objects of his bounty
- Fact that he is executing a will
- Plan of attempted disposition
Result of lack of capacity?
Entire will is void
Insane delusion
belief re: world w/o factual/reasonable basis that testator has despite reason/evidence to contrary
Presumption Undue influence
Special rel + suspicious circumstances
Suspicious circumstances
unnatural disposition, will made in haste/secrecy, weakened condition of T
Fraud
- Misrepresentation
- Intending and causing
- Disposition T wouldn’t otherwise have made
Remedy of Fraud & Undue Influence
Prop held in constructive trust for proper beneficiaries
Exceptions to no-contest provision
- Forgery claim
- Claim on behalf of child/incompetent
- Jx objection
Durable power of attorney
power to make legal decisions in the event of incapacity
Power of atty terminates upon . . .
- Death of P
- Revocation by P
- Incapacity of P (if not durable)
- Agent resigns, dies
- Court revocation
- Purpose is completed
Elective share non-probate assets (key inquiry)
Whether the testator operated sufficient control during life
Notable exclusions from net estate in elective share calculations
Life insurance & irrevocable transfers
- Pre-nuptial agmts too
Anti-Lapse Class Gift Rule
If a disposition is to a class of people, instead of individuals, and 1 dies, gift goes to remaining class members
–> Testator must have been group-minded
Extrinsic evidence
NY allows extrinsic evidence to resolve ambiguity or mistake
Partial Revocation by physical act
NY does NOT recognize
Republication by codicil
Executing a codicil will republish a will as of the date of the codicil
- a strong presumption (but a strong one)
Dependent Relative Revocation
If a T revokes a will based on some material mistake about the will or about the effect of revocation - then revocation may be deemed ineffective
–> intent to revoke is critical here
Adopted kids and anti-lapse
adopted-out child will not take in a class gift from a birth relative unless that child is specifically named in a biological ancestor’s will or the gift is expressly made to issue including those adopted out of the family
