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.
New York’s Anti-Lapse Statute
The gift vests in the deceased beneficiary’s issue if BOTH:
1. the predeceased beneficiary was T’s issue, brother, or sister; AND
2. the predeceased beneficiary leaves issue who survive T.
(Relevant to disclaimant = died prior to T)
Anti-lapse - if dead Beneficiary bequeathed to non-issue?
Bequest disregarded, asset doesn’t even go into estate, goes straight to Anti-Lapse issue.
Anti-lapse and “if he survives me”?
Conditional language trumps anti-lapse.
Anti-lapse and adopted-out child
Ordinarily, adopted-out doesn’t inherit.
But if he is named in the will, and predeceases T, his children will inherit through Anti-lapse as if he were not adopted-out.
Lapse in residuary Gift - “Surviving Residuary Beneficiaries” Rule
Absent a contrary provision in the will, if T’s residuary estate is:
1. Devised to two or more persons; AND
2. the gift to one of them fails or lapses for any reason; AND
3. the anti-lapse statute does not apply, THEN
the other residuary beneficiaries take the entire residuary estate in proportion to their interests.
Class Gifts - General Rule
If a will makes a gift to a group of person described as a generic class and some members of the class predecease the testator, the class members who survive the testator take in equal shares.
Rule of Convenience
The class closes at the time a distribution to the class must be made. Later-born class members are excluded from taking as members of the class. EXC: CL gestational rule: Assumed 280-day pregnancy.
Class closes re life estate with remainder to class
At death of life tenant.
Uniform Simultaneous Death Act (“RUSDA”)
If 2 people die within 120 hours of each other, then presume each predeceased the other depending on whose property is being distributed.
(Assume T predeceased!)
RUSDA - Standard of Proof
Clear and Convincing evidence that the person died MORE than 120 hours later
RUSDA and Jointly-held Property
RUSDA severs the right of survivorship in cases of jointly held property.
Effect of Divorce on a Will
If there is a final DECREE of divorce, annulment or separation after the execution of the will, all gifts and fiduciary appointments in favor of the former spouse are revoked by operation of law.
Pretermitted Children Defined
Children born or adopted after the will is executed.
Pretermitted Children - when protected?
The EPTL only protects pretermitted children who are
- not provided for by any settlement; AND
- neither provided for nor mentioned in the will.
Pretermitted Children Rule
No provision for any children –> nothing
Other children receive gifts, pretermitted inherits as if in class.
T’s intention to make limited reservation for live children - pretermitted gets intestate share
T had NO children when executed –> intestate share
Negative Bequests
Words of disinheritance are given FULL EFFECT in partial intestacy.
(CL - opposite)
Satisfaction of legacy by default?
CL: Yes.
NY: Only contemporaneous writing signed by donor or donee (same as advancement)
Extrinsic Document Rule
No incorporation by reference in NY. Everything must be duly executed.
EXC: reference to beneficiaries named in another person’s will is valid.
EXC: Attached lists disposing of tangible personalty
EXC: Pour over trust valid
Nontestamentary Acts
Physicals acts having a purpose independent of any testamentary purpose are given full effect
EXCEPT: property with registered title
Gift Type: “I devise Blueacre to my son Seth”
A specific gift
Gift Type: “I bequeath $5 million, to be paid from the proceeds of the sale of my GM stock, to my daughter Diane.”
A demonstrative legacy
Gift Type: “I give the sum of $5 million to my daughter Diane.”
A general legacy
Gift Type: “I give all the rest, residue, and remainder of my estate to my son Seth.”
Residuary disposition
Gift Type: “I give $5 million to my good friend, Frank Fried.” Frank predeceased me.
Partial intestacy.
Abatement Defined
Not giving effect to gifts so that creditor’s claims can be satisfied.
(More claims against estate than there are assets to cover all gifts made under the Will, then gifts under Will shall abate.
Order of Abatement
- Intestate and residuary property
2a. General legacies (pro rata with:)
2b. Demonstrative legacies - Specific gifts
Doctrine of Ademption
If T gives a specific gift of property and the property cannot be found or is no longer owned by T at the time of death, the gift fails.
Doctrine of Ademption - What gifts does it apply to?
Specific gifts only.
Doctrine of Ademption - What gifts does it NOT apply to?
General or demonstrative.
What happens to a demonstrative legacy if there is no cash available for the source designated?
It turns into a general legacy.
When can a beneficiary take insurance proceeds for lost, damaged, or destroyed property?
For a specific gift when the benefits are paid AFTER DEATH ONLY.
When can a beneficiary take proceeds received under executory contract?
Only to the extent paid after death.
When can a beneficiary take proceeds from a guardian/conservator’s sale of specifically bequeathed property?
Entitled to money.
Entitled to property to which $$ from sale can be traced.
Exoneration of Liens on Property (from estate $$)
CL: beneficiary entitled to have lien exonerated.
NY: No default exoneration. Exoneration must be specific to that particular property.
What type of gift is a gift of shares of stock in a publicly traded company?
General gifts that do not adeem. (Like currency) (Even if specific company mentioned)
When can a gift of stock be a specific gift?
When specific language is used: “I give my [corporation x] stock …”
What type of gifts is stock in a closely held corporation?
Specific gifts and will adeem if they do not exist at the time of death.
Gift type when stock splits?
Always treated as specific gift, regardless of stupid “my” prefix.
Always gets resulting shares from split.
Categories of Non-Probate Assets
- Property passing by right of survivorship
- Property passing by contract (e.g. life insurance policies)
- Property held in trust
- Property over which the decedent held a power of appointment
Elective Share Statute - General Purpose
To protect the surviving spouse against disinheritance by giving him/her a minimum share of the testator’s probate estate.
Elective Share Amount
$50k or 1/3 of the estate, which is LARGER.
Elective Share - how to calculate
From “net probate estate” - after payment of debts, before payment of estate taxes.
Elective share vs Intestate Share
Intestate share always larger: $50k plus half the balance (if there is issue)
Testamentary Substitutes Rule
To prevent a testator from defeating the elective share statute, the elective share includes the probate estate AND testamentary substitutes known as the AUGMENTED ESTATE or the ELECTIVE SHARE ESTATE.
Testamentary Substitutes - Types
- Totten trusts
- Survivorship estates
- Lifetime transfers that are conditional or revokable
- Pension, profit-sharing, or deferred compensation plans
- Gifts made within 1 year of death and greater than 14k or causa mortis
- U.S. government bonds / Pay on Death arrangements
- Powers of appointment presently exercisable
Testamentary Substitutes - General Rule of Thumb
If T has an interest in the property (can touch and manipulate it), it is a testamentary substitute.
Non-testamentary Substitutes
- Life insurance policies
- One-half of the qualified employee plan
- Gifts less than 14k
- Pre-marriage irrevocable transfers
- Irrevocable transfers made more than 1 year before death.
Non-testamentary Substitutes - General Rule of Thumb
If T has no interest or transfer is irrevocable.
Calculating Elective Share - Consideration Furnished Test
In a right of survivorship with a third party, the surviving spouse has the burden of proving the amount of dead spouse’s contribution to the asset.
If formed before marriage - the 3rd party’s half is a premarital gift and not part of Elective Share Estate. If T paid less than 1/2, then more than 1/2 will belong to 3rd party.
Calculating Elective Share - Right of Survivorship between Spouse and Testator
1/2 of the property is a Testamentary Substitute (regardless of contribution!)
Applicability of Elective Shares in Intestacy?
Nope! Eg. bank accounts will transfer under law (to survivor or Totten beneficiary) and spouse gets nothing!
Can a life estate satisfy the marital elective share entitlement?
No, not if the Testator died after 9/1/1994.
How is a trust or life estate to the spouse treated in calculating the marital election?
Read the will as if the spouse predeceased Testator and accelerate the trust to remainderman.
When is election notice filed?
If admitted to probate: Six months after court “letters” issued
If no administration - Two years after death.
Waiver of right of election?
Allowed in marital agreement (written, signed, acknowledged before notary)
Can be specific to wills, assets, etc.
Who has a right to election?
The spouse of a decedent/testator, (decedent was) domiciled in NY at the time of death.
OR land in NY when will states that disposition will be under NY law.
Exempt Property Defined
Property that the surviving spouse gets first before any other distribution of assets.
Mention as afterthought in essay answer.
Exempt Property Types
Total up to $92,5001.
1 car up to $25k
2. Furniture, appliances, and electronics up to $20k
3. Cash up to $25k.
4. Animals, farm machinery, tractors up to $20k
5. Books, dvds, cds, software up to $2,500
Circs disqualifying spouse from taking elective share and exempt property
See [DISMAL]
Power of Appointment - Donor Defines
The creator of the power.
Power of Appointment - Donee Defined
The person who is given the power to use.
Power of Appointment Defined
An authority created in a donee enabling the donee to designate, within limits prescribed by the donor, the persons who shall take the donor’s property and the manner in which they take it.
Power of Appointment - Takers in Default
Persons who take the property if the donee fails to exercise his power.
Purpose of the Power of Appointment
Allows someone to look at facts in existence at a later date for distribution of property.
General Power of Appointment
A donee can appoint to herself, her creditors, or her estate as if donee owns the property himself.
Special/Limited Power of Appointment
Donee cannot appoint to himself.
Presently Exercisable Power of Appointment
Donee can exercise it right now.
Testamentary Power of Appointment
Donee can appoint only by will.
Power of Appointment and Elective Share
If donee can transfer to herself in her lifetime - deemed granted to donee.
Not if donee can only appoint to someone else.
Power of Appointment - Donee’s creditors
If donee can exercise power to transfer to self, creditors can access.
Power of Appointment & RAP - Steps
- Identify the type of appointment
- Is the power of appointment valid? [Special or general testamentary - LIB+21]
- Are the interests created by the power valid?
How to determine if a Power of Appointment is valid within the RAP?
Power must be EXERCISED within Life in Being + 21 years.
If power is given to person who is LIB at time power was created –> power is valid.
How to determine if the interests created by a valid Power of Appointment are valid?
Measured from the date of the instrument creating the power, NOT the date of the power’s exercise.
Buzzwords to include with PoA and RAP
- General or special exercisable PoA
- Valid power of appointment?
- Valid interests?
- Second look doctrine
- NY suspension rule bringing age to 21 years.
- NY Spendthrift rule
PoA’s, Income Interests, and RaP’s
- Income interests created by income interests are usually valid
- Double income interests + age condition is usually invalid, but saved by suspension rule
Checklisy for answer
- Identify interest
- From when do we measure (creation or exercise)?
- Does 2nd look apply?
- Give RAP Rule
- Find a LIB, use it
- Apply NY RAP Reform Statute
- Give Suspension Rule
- Income interest to unborn beneficiary? Void!
- Spendthrift Rule - income interest is void (unless saved by Reform)
- Deal with remainder interests
Will Contests - General Rule
Absent suspicious circumstances, it is conclusively presumed that a duly executed will was read by the testator who understood its contents.The plain meaning of the will won’t be overturned with extrinsic evidence
Will Contests - Ambiguity (2 Types)
- Latent ambiguity
2. Patent ambiguity
Will Contests - Latent Ambiguity Defined
Where a term in the will is not ambiguous on its face but needs clarification to understand the meaning of T’s wordse.g. Description of property is not specific enough
Will Contests - Latent Ambiguity + Extrinsic Evidence
Admissible to clarify or find the meaning of T’s words.
- Facts and circumstances
- T’s declarations of intent
- T’s statements to will drafting attorney
Will Contests - What if extrinsic evidence fails to cure the latent ambiguity?
The gift fails and goes into intestate estate.
Will Contests - Patent Ambiguity Defined
An error that is ambiguous on the face of the will.
Will Contests - Patent Ambiguity & Extrinsic Evidence
Extrinsic evidence is admissible EXCEPT:
- evidence of declarations of intent to third parties is NOT admissible
Evidence of declarations to the will drafting attorney IS admissible.
Conditional Wills Defined
A will that expressly states that it is operative only if a condition is met.
Conditional Wills - 2 arguments re probate
- Denied because condition not fulfilled.
2. Merely reflects motive or inducement to make will, not a condition at all.
Joint Will Defined
A will of two people in one document.
Joint Will Rule
A contract to make a will or not revoke a will can ONLY be established by an EXPRESS STATEMENT OF INTENT that the will’s provision are meant to constitute a contract between the parties.
Violation or a joint will by executing later will
Second will can be probated, THEN a CONSTRUCTIVE TRUST will be imposed in favor of the orig. intended beneficiaries
Testamentary Capacity - 4 Requirements
T must have capacity to:
- understand the nature of the act; and
- know the nature and approximate value of his property; and
- know the “natural object of his bounty” (his family)
- understand the gifts he was making
Does adjudication as incompetent make a T automatically incompetent to execute a will?
NO, because executing a will requires less competence than any other legal instruments.
Could have executed will during a LUCID INTERVAL
Does insane delusion render a T incompetent?
Yes.
Is a T under the undue influence of a third party competent to execute a will?
Person challenging the will must show:
- Existence and exertion of an influence
- The effect of such influence was to overpower the will and mind of T
- The product is a will or a gift in a will which would not have happened “but for” the undue influence.
Examples of circs INSUFFICIENT to constitute undue influence
Opportunity to exert influence
Susceptability to influence due to age
Unequal dispositions
(Some other circumstantial facts might be sufficient but not these)
How can a will challenger obtain an inference of undue influence?
- Will makes a gift to one in a confidential relationship
- Giftee was active in preparing the will
(Rebuttable inference!)
Bequests to Drafting Attorneys
Surrogate’s court automatically inquires into whether a gift to the drafting attorney was made voluntarily.
[Putnam-scrutiny]
Appointments of Drafting Attorney
A drafting attorney who is named as the executor of T’s estate must give WRITTEN DISCLOSURE that
- any person can be named an executor, not just an attorney; AND
- the executor receives a statutory commission; AND
- the attorney will also be entitled to legal fees for representing the estate.
What happens if a drafting attorney named as executor fails the written disclosure requirement?
Drafting attorney only gets 1/2 the statutory executor commission.
No-Contest Clause Defined
If ANYONE objects to my will they get nothing.
No-Contest Clause in NY
No-contest clause is given full effect even if there was probable cause to challenge the will!
(Most states: not effective for challenges in good faith + probably cause)
When will a NY will with a no-contest clause NOT be enforced?
If the will contest is:
- Claiming forgery or revocation (if court finds probably cause)
- Contest is filed on behalf of an infant or incompetent.
- Will construction proceeding
- Objection to court’s jurisdiction
No-Contest Safe Harbor Provisions
A person who is considering contesting a will that contains a no-content clause may examine IN DISCOVERY
1. person who prepared the will
2. the attesting witnesses
3. the will proponents; and
4. the nominated executors
In special circumstances - court can allow deposition of persons with info of “potential value or relevance”
BUT will can be drafted so severely to preclude even these inquiries!!
Power of attorney - two types
Non-durable: Revoked by operation of law by either grantor’s death or incapacity. Valid until notice of death received by attorney.
Durable: Survives incapacity unless its terms state otherwise.
