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Bar Exam > Wills > Flashcards

Wills Flashcards

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0
Q

NY testamentary gifts called . . .

A

Dispositions

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1
Q

Valid will requirements

A
  1. 18 and competent
  2. Sign at end of document
  3. In presence of 2 Ws or acknowledge his sig to 2 Ws
  4. Ws must sign w/n 30 days of each other
  5. Testator must tell Ws it’s a will
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2
Q

Four kinds of NY dispositions

A

Specific
Demonstrative
General
Residuary

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3
Q

Specific disposition

A

Gift of specific property

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4
Q

General disposition

A

Money from the general estate

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5
Q

Demonstrative disposition

A

Money from a specific source.

- shortfall made up from general funds

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6
Q

Priority of debts owed by estate

A
  1. Specific
  2. Demonstrative
  3. General
  4. Residual
  5. Intestacy
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7
Q

NY Anti-Lapse Statute

A

No lapse if testator’s sibling/issue but only if the predeceasing beneficiary has issue of his own.

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8
Q

If residuary beneficiary lapses . . .

A

Estate goes by intestacy

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9
Q

Intestate share of SS

A
  1. No issue –> Everything

2. Issue –> 50K + 1/2 of the rest of the estate

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10
Q

Abandonment precluding SS intestate share

A
  1. Voluntary
  2. Permanent
  3. W/o consent of abandoned spouse
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11
Q

NY simultaneous death

A

If spouses die 120 hrs (5 days) of each other, they are presumed to have died simultaneously

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12
Q

NY Intestate share of issue

A

Per capita at each generation
“equally near, equally dear”
- Divide, Distribute, Re-bundle, Divide Again

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13
Q

Who count’s as issue

A
  1. Natural children
  2. Post-humously born children
  3. Adopted children
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14
Q

When can adopted child inherit through natural parent?

A
  1. Decedent was the adopted child’s grandparent or descendant of grandparent
  2. Adoptive parent is married to child’s bio parent
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15
Q

When can wedlock child inherit from father . . .

A
  1. Marriage - F later married bio mom
  2. Behavior - F held out child as his own
  3. Blood test - while F alive
  4. Adjudication - while F alive
  5. Writing - F made doc acknowledging paternity
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16
Q

Intestate priority of remote collaterals

A
  1. Parents
  2. Issue of parents
  3. Grandparents
  4. Issue of grandparents
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17
Q

NY purging statute

A

If W is a beneficiary in the will, W’s share is purged (in excess of W’s intestate share)

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18
Q

Modifications to a will

A

Codicil

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19
Q

Valid codicils

A

Must comport with all will formalities

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20
Q

Modification of will act formalities

A

Integration
Incorporation by reference ( NOT NY)
Acts of independent legal significance

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21
Q

Will substitutes

A 
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
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22
Q

Subsequent will vs codicil

A

If a later will is not entirely inconsistent w/ prior will, it is only a codicil

23
Q

Methods of will revocation

A
  1. Subsequent testamentary instrument
  2. Divorce
  3. Physical act
24
Q

Revocation of a codicil

A

Revives original will

25
Q

Revocation by physical act

A
  1. Any act of destruction
  2. Material portion
  3. W/ intent to revoke
26
Q

Presumption of destruction by physical act

A
  1. Will last in testator’s possession

2. Cannot be found after death

27
Q

Ademption

A

Disposed property no longer in estate at time of death

28
Q

3rd party revocation by physical act

A
  1. At testator’s direction
  2. In testator’s presence
  3. Proved by 2 Ws
29
Q

Court avoidance of ademption

A
  1. Interpret the disposition as general instead of specific

2. Treat extinction as change in form not substance

30
Q

Protections for a SS

A
  1. Homestead exception
  2. Personal property set-aside
  3. Elective share
31
Q

Elective share

A

50K or 1/3 of the net estate, whichever is higher

32
Q

Lifetime gifts to children

A

Treated as advance against inheritance if donor-decedent demo’d intent in contemporaneous writing

33
Q

Elective share net estate

A
  • 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

34
Q

Pretermitted Children Rule

A

No kids –> intestate share

Kids –> share of gift left to earlier kids

35
Q

Bars to succession

A
  1. Homicide
  2. Disclaimer
  3. Disqualification
36
Q

5 attacks of testator’s mental state

A
  1. Capacity
  2. Insane delusion
  3. Undue influence
  4. Fraud
  5. Duress
37
Q

Capacity

A

Capacity (not actual knowledge) of:

  1. Nature of act
  2. Nature, character, and value of property
  3. Natural objects of his bounty
  4. Fact that he is executing a will
  5. Plan of attempted disposition
38
Q

Result of lack of capacity?

A

Entire will is void

39
Q

Insane delusion

A

belief re: world w/o factual/reasonable basis that testator has despite reason/evidence to contrary

40
Q

Presumption Undue influence

A

Special rel + suspicious circumstances

41
Q

Suspicious circumstances

A

unnatural disposition, will made in haste/secrecy, weakened condition of T

42
Q

Fraud

A
  1. Misrepresentation
  2. Intending and causing
  3. Disposition T wouldn’t otherwise have made
43
Q

Remedy of Fraud & Undue Influence

A

Prop held in constructive trust for proper beneficiaries

44
Q

Exceptions to no-contest provision

A
  1. Forgery claim
  2. Claim on behalf of child/incompetent
  3. Jx objection
45
Q

Durable power of attorney

A

power to make legal decisions in the event of incapacity

47
Q

Power of atty terminates upon . . .

A
  1. Death of P
  2. Revocation by P
  3. Incapacity of P (if not durable)
  4. Agent resigns, dies
  5. Court revocation
  6. Purpose is completed
48
Q

Elective share non-probate assets (key inquiry)

A

Whether the testator operated sufficient control during life

49
Q

Notable exclusions from net estate in elective share calculations

A

Life insurance & irrevocable transfers

  • Pre-nuptial agmts too
50
Q

Anti-Lapse Class Gift Rule

A

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

51
Q

Extrinsic evidence

A

NY allows extrinsic evidence to resolve ambiguity or mistake

52
Q

Partial Revocation by physical act

A

NY does NOT recognize

53
Q

Republication by codicil

A

Executing a codicil will republish a will as of the date of the codicil

  • a strong presumption (but a strong one)
54
Q

Dependent Relative Revocation

A

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

55
Q

Adopted kids and anti-lapse

A

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

Bar Exam (18 decks)

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