Wills

Question 1

Intestacy - Spouse’s Cut

Answer 1

If no issue, spouse gets everything.

If issue, spouse gets $50K + 1/2 of remaining estate.

“Marriage” = no abandonment or failure to support, and no divorce decree or judgment of separation. Status can also be waived.

Question 2

Uniform Simultaneous Death Act

Answer 2

Rule: If spouses die w/in 5 days of each other, deaths presumed simultaneous.

Result: Each takes as if other had predeceased them.

Question 3

Intestacy - Issue’s Cut

Answer 3

If no spouse, issue get everything. Otherwise, 1/2 (estate - $50K)..

Question 4

Intestacy - Distant Relatives’ Cut

Answer 4

If no spouse & no issue:

1. Parents
2. Issue of parents
3. Grandparents
4. Issue of grandparents

Question 5

Intestacy - Distribution Schemes

Answer 5

NY: “Per capita by representation” approach. Property divided into shares based on sum of living issue + dead issue who have living descendants in the first generation that has living members. Living issue take their share and property recombined. Then process is repeated for next gen using remaining property.

Per stirpes: Property is divided by living & dead issue at each generation (assuming dead had issue).

Modern per stirpes: Like per stirpes but begins at first generation with living members.

Question 6

Execution Formalities

Answer 6

1. Writing
2. Signed by testator at the end,
3. with testamentary intent,
4. usually in witnesses’ presence (they must know it’s a will - “publication”), but OK if T tells them it’s his signature
5. and signed by 2 competent witnesses (no age req though). needn’y sign in each other’s presence but must attest to signature w/in 30 days of each other.

NY: When execution supervised by atty w/out interest in will, execution is presumed proper.

NY: Reqs only substantial compliance for probating the will, provided there is C&CE evidence decedent intended it to be his will.

Question 7

Interested Witnesses

Answer 7

CL: Interested witnesses wasn’t competent to witness the will.

NY: Beneficiary witness is competent, but his gift will be “purged” unless there are two other witnesses who were not beneficiaries. Purged = reduced to the amount he’d get in intestacy.

Question 8

Holographic Wills

Answer 8

Def: Written in T’s own handwriting. Only allowed in NY for active duty military or civilians during conflict, or mariner at sea.

NB: Become invalid after 1 year from military discharge or, for mariner, 3 yrs after will made.

Question 9

Revocation

Answer 9

Reqs same capacity to revoke as to execute.

1. Subsequent testamentary instrument. If no residuary clause and earlier doc has one = codicil and later doc controls on inconsistent points; if residual clause = new will. Reqs same formalities as execution.
2. Destruction w/ intent to revoke. Entire revocations only - not partial - so destruction must be sufficient.
3. Operation of law (divorce)

NB: Destruction is presumed if will in T’s possession can’t be found after death.

Question 10

Revival

Answer 10

Reqs republication of will or a codicil if first will properly executed.

CL rule that revocation of a revoking will revives first will NOT followed.

Question 11

Types of Dispositions

Answer 11

1. Specific = property that can be readily distinguished from other estate prop.
2. General = cash.
3. Demonstrative = cash from partic source.
4. Residuary = everything left over.

NB: Debts of estate are satisfied in reverse order of above.

Question 12

Lapse

Answer 12

Def = when beneficiary dies before T, CL rule was that gift failed and entered residuary.

NY Anti-Lapse Statute: Gifts to T’s ISSUE or SIBLINGS will not lapse if beneficiary has issue. (EXCEPT if gift conditioned on B’s survival).

Question 13

Ademption

Answer 13

Def = when specific bequest is gone at time of death. CL rule is B gets nothing.

NY: Allows B to take $ when property sold through no choice of T’s own, or when insurance paid on specific gift after T’s death.

Question 14

Abatement

Answer 14

Def = reduction of gifts to pay debts of the estate.

T can indicate preferred order. Otherwise, intestate property –> residuary –> general to non-relatives –> gen rel –> specific non-rel –> specific rel.

Question 15

Elective Share

Answer 15

Spouse can choose elective share over what is in will. Share = greater of $50K OR 1/3 of “net estate.” If 1/3, then reduce it by dispositions passing through D’s will or intestacy, and value of testamentary substitutes for spouse’s benefit.

NB: Can be waived in writing during either spouse’s lifetime.

Question 16

Homestead Exemption

Answer 16

Certain value of land ($150K - $75K) is immune from creditors for benefit of spouse and children until youngest child reaches majority or death of spouse, whichever happens 2d.

Question 17

Personal Property Set-Aside

Answer 17

Certain personal property goes directly to spouse or, if none, any minor children.

Includes: family records, books, and DVDs; 1 car ≤ $25K; farm equipment; household furniture and appliances; up to $25K in cash/CDs/accounts.

Question 18

Gifts to Children

Answer 18

Inter vivos gifts to children can be considered advances on inheritance if parent declares so in contemporaneous writing.

Question 19

Bars to Succession

Answer 19

1. Homicide (unless accidental, self-defense, or insanity)
2. Disclaimer (must be in writing - property then passes as if disclaiming party had pre-d’d T)
3. Disqualification (b/c of abandonment/failure to support spouse or child, or abuse of child)

Question 20

Will Contests - Grounds

Answer 20

1. Lack of testamentary capacity: burden on contestor
2. Insane delusion: a non-religious belief for which there is no reasonable basis AND is the sole but-for cause of disposition.
3. Undue influence: mental/physical coercion that “overpowers T’s free will and intent.” Reqs but-for cause. Confid. relationship + suspicious circs = inference of UI, shifting burden.
4. Fraud: misreps intended to create gifts T wouldn’t otherwise give. Reqs C&CE.
5. Duress: actual threat of physical force

Question 21

Will Contests - Process

Answer 21

Standing: only potential beneficiaries can contest.

Limitations: “no contest clauses,” which disinherit those who challenge will, are OK in NY. But NY doesn’t consider claims of forgery, to ct’s jx, or challenges by children/incompetents to trigger the clause.

Question 22

“Surviving Issue”

Answer 22

Def: all lineal descendants except those of living lineal descendants.

Includes posthumously born kids, adopted kids, and bastards (from mom, or from dad if paternity was established during life or father married mother).

Question 23

Disinheriting

Answer 23

NY allows decedent to disinherit an heir through a proper will expressing that intent. Even if not all property disposed of through the will, disinherited heir is treated as predeceasing testator (but disinherited person’s children still collect).

Question 24

Noncupative Wills

Answer 24

Def: oral wills. Valid in NY under same circs as holographic wills.

Question 25

Net Estate

Answer 25

Net estate = gross estate (almost everything) - expenses and debts.

NOT included: life insurance; irrevocable trust made 1+ yr before death or before marriage.

Question 26

Pretermitted Children

Answer 26

Def = children born or adopted after will is executed & are therefore excluded from the will.

NY: Presumes such children were accidentally omitted and gives them intestacy share. If T had some kids at time of will, then pre-T kids share in the gift to other kids.

EXCEPT: Parent intended to omit child, or provided for him through insurance, etc.

Question 27

“Testamentary Capacity”

Answer 27

Executing/revoking wills reqs being 18 w/ sound mind. Capacity is lacking if at time of execution, T lacked the ABILITY to know:

1. nature of act
2. nature and value of his property
3. “natural objects of his bounty”
4. fact that he’s executing a will
5. plan of the will’s dispotition

Question 28

Putnam Scrutiny

Answer 28

NY: When will makes gift to drafting attorney, surrogate must make an automatic inquiry to determine whether gift was truly voluntary or result of undue influence.

Question 29

Power of Atty

Answer 29

Durable: continues should principal become disabled/incompetent. NY presumes this type.

Terminates at death, revocation, or purpose of power of atty has been completed.