Wills Flashcards
Sources of New York Wills Law
- Estates Power and Trusts Law (EPTL)
2. Surrogates Court Procedure Act (SCPA)
Order of Priority for Appointment as Administrator
- Surviving spouse
- Children
- Grandchildren
- Parent
- Siblings
- Any other distributee
Intestate Distribution - Survived by his spouse and issue: What do spouse and issue get?
- Surviving spouse: $50k + 1/2 residuary
2. Issue: Leftover residuary divided equally
Intestate Distribution - Survived by children and issue of predeceased children
Divide equally among living/dead 1stGen members.
Take portions of dead 1stGen members, divide equally among 2ndGen descendents of dead kids.
NOT PER STIRPES
- Issue in the same generation will always have equal shares
Intestate Distribution - No surviving spouse or issue
- All to surviving parents; then
- All to siblings and issue of deceased siblings
- Grandparents and their children/grandchildren
- Great-grandchildren of grandparents.
- State of NY (if closest are great great grandchildren of grandparents OR great grandparents issue)
Per Stirpes (most states) vs. Per Capita (NY) - What is the Default?
In NY, per capita at each generation is the default if intestate or will is silent.
When will per capita and per stirpes result in the same distribution at one particular generational level?
When only 1 issue in that generational level is dead.
Adopted Children - General Inheritance Rule
Full inheritance rights FROM THE ADOPTING FAMILY and to their issue.
Adopted Children - What about the birth family?
adopted child has no inheritance rights from the birth parents or other birth family members
Adopted Children - Parental Spouse Adoption Exception
If a child is adopted by the spouse of a birth parent, the child and child’s issue can inherit from BOTH adopting and birth parent.
Adopted Children - Child adopted by a relative (e.g. aunt or uncle)
If adopted child is related to the decedent by both a birth relationship and an adopted relationship, the child inherits under the BIRTH relationship, UNLESS the decedent was the adopting parent, then the child inherits under the adoptive relationship.
Nonmarital Children - General Rule
A nonmarital child has full inheritance rights from the mother and mother’s family
Nonmarital Children - How to get inheritance from birth father?
Only if paternity is established by 1 of 4 Tests (1-3 only during father’s life):
- Father marries the mother after the child’s birth
- Order of filiation in a paternity suit
- Father files a witnessed and acknowledged affidavit of paternity before a notary public with the Putative Father Registry; or
- PATERNITY IS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE
Nonmarital Children - Types of Clear and Convincing Evidence to establish paternity
- DNA test; or
- Openly and notoriously acknowledged the child as his own.
EXC: Giving support is not acknowledgement (public policy)
Circumstances Disqualifying Spouse from Taking Intestate Share
[DISMAL]
D ivorce
I nvalid divorce by surviving spouse (NOT DEAD ONE)
S eparation decree against the surviving spouse (NOT AGREEMENT)
M arriage is void (incest, bigamy, fraud)
A bandonment by surviving spouse
L ack of support by surviving spouse
How is a disqualified spouse accounted for in intestate distribution?
Assuming the disqualified spouse pre-deceased the decedent, and continue according to the EPTL
Heir unjustifiably kills decedent?
NY: No statute, creates “constructive trust”
Common Law Advancement Defined
A lifetime gift to a child was PRESUMPTIVELY an advancement of his intestate share, to be taken into account when distributing the estate at death.
NY Advancement Rule
By statute, “advancement” exists ONLY IF proven by
- Contemporaneous writing made at the time of the gift; AND
- signed by the donor OR donee
Does a named distributee HAVE to take the property left to him?
No, you can always disclaim.
Formal requirements for disclaimer
In writing, signed, acknowledged by notary
Separate affidavit that no consideration paid for disclaimer
Irrevocable
Filed with Surrogate Court within 9m of death
What is the effect of a person who disclaims property?
Person who disclaims is treated as if he predeceased the decedent.
When will a disclaimer not operate as if the disclaiming person predeceased the decedent?
When a disclaimer would create an inequitable result (e.g. in a per capita distribution)- disclaiming person will be treated as if he died 1 day after the decedent to create a per stirpes distribution
When can’t a person disclaim?
When it would affect medicare or medicaid benefits.
Probate Proceeding Defined
Surrogate’s Court proceeding to:
- Judicially determine whether the testator’s will was validly executed and determine the intestate distributees; AND
- Appoint the executor to administer the testator’s estate.
Probate Estate Defined
Assets held in the testator’s name ALONE that do not pass by operation of law and which the executor administers in accordance with the testator’s will.
Requirements of a Duly Executed Will - 7 Point Test
- Testator must be 18 years old
- Signed by testator or by a proxy
- T’s signature at the “end thereof.”
- T must signs in the presence of each witness
- Publication (declare to witnesses that it is “last will and testament”
- 2 Witnesses sign
- Ceremony completed in 30 days
Duly Executed Will - Proxy Requirements
- Must also sign her name
- Cannot be counted as an attesting witness; and
- must affix her address
Duly Executed Will - Publication Requirements
Publication requires the testator tell the witnesses that they are witness a will by declaring it his “last will and testament.”
Duly Executed Will - When does the clock run for completion?
When the first WITNESS signs.
What happens if the testator’s signature is not at the “end thereof.”
Words following the signature are not given effect, but words before are still valid.
If that matter is very material - entire will invalid.
Must witnesses sign in presence of each other or in presence of testator?
NY: No need.
Majority: Yes.
If testator signs after witnesses sign?
Probate denied - even if he signed later in presence of witnesses.
EXCEPT if it is a “contemporaneous transaction” - then the order doesn’t matter.
Who has the burden of proving the will was duly executed?
Who offers the will for probate (will proponent)
What if one witness is not available to testify?
The testimony of the other witness is sufficient
What if none of the witnesses are able to testify?
The will proponent must prove the signature of BOTH the testator and 1 witness
If the will is not self-proved?
Both attesting witnesses must testify as to the facts necessary to show due execution.
Attestation Clause Defined
Appears below testator’s signature and above the witnesses’ signature, and recites the elements of due execution.
Effect of Attestation Clause
Corroborative evidence of witness testimony. Not instead of.
Good for “bad memory” witnesses, hostile witnesses.
Self-Proving Affidavit Defined
Witnesses sign a SWORN statement in the presence of an attorney that recites all the statements they would make if called to testify in court.
Effect of Self-Proving Affidavit
A substitute for the live testimony of the witnesses, same as a deposition or interrogatory. It’s sworn testimony.
UNLESS an interested party objects.
Interested Witness Statute - Rule
The validity of a will is not affected if a beneficiary is also an attesting witness, but the bequest to the witness is void UNLESS
- there were at least 3 witnesses and 2 were disinterested; or
- the interested witness/beneficiary would be an intestate distributee
If the interested witness/beneficiary would be an intestate beneficiary, what does he get?
Either the bequest under the will or the intestate share, whichever is LESS.
Foreign Will Act - Rule
A will is admissible to probate in NY if it was validly executed under:
- the law of the state where it was executed; or
- New York law; or
- the law of the state where the testator was domiciled, either at execution or death.
Foreign Will Act - What rules apply to a foreign will once admitted to probate in NY?
NY law.
construction, application
Holographic Will - Defined
A will that is entirely in T’s handwriting that is signed but not witnessed.
- Void in NY!!
Nuncupative Will - Defined
An oral will
- Void in NY!!
Exception to Holographic and Nuncupative Wills
- Both are valid for members of the armed forces during declared or undeclared war, and void one year after discharge
- Mariners at sea, but void three years after discharge.
How to analyze a holographic or nuncupative will in another state?
- Determine if it was executed in a state that recognizes them
- Proceed with foreign wills act
Can an intended beneficiary recover for malpractice if the lawyer’s negligence made the will invalid?
No because there is no privity of contract between intended beneficiary and lawyer.
Can the estate’s representative sue for legal malpractice if the negligence causes the estate damages?
Yes, because there is privity between the personal representative of the estate and the estate planning lawyer.
(Only when the estate itself suffers!!)
What constitutes a valid will revocation?
- By subsequent testamentary instrument, duly executed (with witnesses!!); OR
- by physical act
What is a physical act of revocation?
A voluntary act that destroys the document WITH THE INTENT to revoke.
What result if subsequent will does not have clear revocation language?
Second will be used as an amendment, reading both wills together where possible. It only revokes the first will where there are conflicting provisions.
Requirements for Revocation by Proxy
The physical act must be:1. At the testator’s request;
- in the testator’s presence; AND
- witnessed by at least two witnesses.
What result if a will that was last seen in T’s possession is not found after death?
Presumption that T revoked by physical act.
What result if a will that was last seen in T’s possession is found damage after T’s death?
Presumption that T revoked by physical act.
Partial Revocation by Physical Act
Not recognized in NY.
No Revival of Revoked Wills - Rule
If T executes a Will that is revoked by a later will containing a revocation clause, the first will CAN’T be revived by T merely revoking the later will.
How can a revoked will be revived?
- Re-execution
2. Republication by codicil.
Dependent Relative Revocation (“DRR”) Defined
Permits a revocation of a later will to be disregarded, often called the “second best solution.”
(When a second will is revoked in order to give effect to an earlier will, and this doesn’t work!)
DRR in NY - Generally
Almost never gets applied.
DRR Requirements
- T’s revocation was premised upon a mistake of law
- the disposition that results would come close to the dispositions the testator intended when he attempted to revive the earlier will.
The Lost Wills Statute - When is it used?
- DRR situations
2. A truly lost will
What must the Lost Will proponent prove?
- Lost or later will was duly executed
- Lost or later will was not “revoked”
- Will’s provisions are proven by each of at least two credible witnesses, or by a copy or draft of the Will proved to be true and complete
Death of Beneficiary during Testator’s Lifetime - General Rule
T can’t make a gift to a deceased person.
Anti-Lapse Statute
If a beneficiary dies during T’s lifetime, the gift to the beneficiary fails UNLESS the gift is saved by the state’s anti-lapse statute.
