Wills Flashcards
Will Formalities
(1) writing
(2) present testamentary intent (understands the act)
(3) Testator signed in joint presence of two witnesses (or testator later acknowledges that that is his signature)
(4) Witnesses understand significance of the act
Presumption of proper execution if supervised by disinterested attorney
Presumption of validity if will contains attestation clause
Testator’s Signature in will
Signature is the end of the will. Language added after signature is invalid.
Formal name is not required.
Testator Capacity
At least 18yo
Of sound mind (determined at time of execution)
Interested Witnesses
Will beneficiaries can serve as a witness.
BUT NY uses “purge theory” = gift to interested witness cannot exceed intestate share. Any excess is void
Compliance with will formalities
Document may be probated if clear and convincing evidence of intent for document to be a will and substantial compliance with formalities
Holographic wills
Only for US serviceman in active duty during time of war or armed conflict, person servicing with armed forces, or mariner at sea.
Nuncupative will
Oral will. Only valid for limited personal property made in contemplation of immediate death by a person who could make a holographic will (servicemen).
Codicil
Alter, amend, or modify a will. Must conform to will formalities.
Will is republished as of the date of a codicil. Can validate an otherwise invalid will.
Foreign wills
admitted to probate if will executed under NY law OR under law of state where it was executed OR where testator was domiciled at the time of death or execution.
Will substitutes
Any non-probate asset distribution. E.g., revocable trusts, pour-over wills, bank accounts and securities registered in beneficiary form, payable-on-death clauses, deeds to take effect or be delivered on death of grantor, Totten trusts, gifts made in contemplation of death
Ways to revoke a will
Testator must possess intent to revoke.
(1) valid subsequent instrument (expressing intent to revoke or implied by inconsistent terms)
(2) Destruction of will with intent to revoke (only entire revocation is permitted)
(3) Operation of law (divorce)
Lost wills
Presumption that testator destroyed the will with intent to revoke it. A proponent must prove the will’s existence by clear and convincing evidence.
Revocation of Codicils
Revoking a codicil does not revoke the entire will.
But revoking the will revokes all codicils attached to it.
Revival of Wills
Republication is required. Revoking a new will does NOT revive the pervious one.
Dependent Relative Revocation (DDR)
Testator’s revocation is disregarded if based on a mistake of law or fact and would not have been made but for that mistake. The original will is revived.
Classification of gifts
(1) Specific = gift is distinguishable with reasonable accuracy from other property
(2) General = gift satisfied from general assets of the estate
(3) Demonstrative = gift from a particular source, but if source is insufficient, considered a general gift
(4) Residuary = remaining estate when all other gifts are satisfied.
Incorporation by reference
Not recognized by NY (but pour-over exception)
Acts of independent significance
Allows testator to refer to acts that have significance beyond testimentary prupose—things that will change after the will is executed. (“I leave $5,000 to each of my employees” = employees will change)
Lapse
If giftee pre=deceases, property passes to residuary.
Anti-lapse statute = gift passes to dead giftee’s issue or sibling. If to a class, class can take the gift.
Abatement
Gifts are reduced or eliminated when estate is insufficient to pay all debts and make all gifts. Abated in following order:
Intestate property
o Residuary bequests
o General bequests to people other than relatives
o General bequests to relatives
o Specific bequests to people other than relatives
o Specific bequests to relatives
o Dispositions to SS that qualify for estate tax marital deduction
Ademption
If a gift is missing/destroyed/not owned at time of gift, the giftee takes nothing. Also adeemed if testator transfered inter vivos to the giftee with intent to adeem the devise.
Securities:
Pre death changes = includes additional shares if action was initiated by corporate entity (i.e., share divisions)
Post-death changes = specific bequests carry all post-death income. General bequests carry interests beginning one year after testator’s death.
What is the homestead exception? how long does it last?
Homestead exemption = spouse gets value of real property up to $150,000 exempt from creditors claims. Lasts until the later of the wife’s death or when the youngest surviving child reaches the age of majority.
What property is subject to the spouse elective share?
Property subject to elective share = D’s estate, intestate distributions of property, and testamentary substitutes made during D’s lifetime (including those benefiting SS)
Advancement of intestate share
Deceased must declare in contemporaneous writing OR heir acknowledge in writing that the gift was an advancement.
Pretermitted Children
Intestate share if testator has no living children at time will executed OR other living children were disinherited. Equal share w/ testator’s other children otherwise.
Exceptions—
(1) omission was intentional;
(2) T provided for child outside of will
(3) T otherwise provided for or mentioned child in will
Bars to Succession
(1) Homicide
(2) Disclaimer
(3) Disqualification of spouse (for abandonment or failure to support) or parent (for failure to support, abandonment, or abuse)
Types of will contests
(1) Lack of capacity (testator only needs the ability to understand, not actual comprehension)
(2) insane delusion = no factual or reasonable basis for belief
(3) Undue influence = must show existence and exertion of influence AND confidential relationship. (affection or gratitude is insufficient)
(4) Fraud (fraud in inducement / fraud in execution)
(5) Duress
Living Will
Instruct healthcare providers not to provide life-sustaining treatment that the patent does not want.
Durable Healthcare Powers / Health care proxy
Designates someone to make medical decisions in the case of incapacity.
Execution = competent adult may sign/date written proxy in presence of two witnesses
Revocation = at any time orally, in writing, or other act showing intent to revoke
What are powers of attorney? How are they created, revoked and terminated?
Make any legal decisions on behalf of the person.
Durable Power of Attorney = continues despite principal’s later disability/ incompetency
Execution = by competent principal and agent, with signatures acknowledged with same formalities as for real property
Revocation = powers can be revoked by principal at any time
Termination = death of principal
What must a testator know/appreciate in order to have testamentary capacity at the time he executes a will?
Has the “ability” to know
(1) the nature of his act;
(2) the nature, character, and value of his property;
(3) the natural objects of his bounty;
(4) the fact that he is executing a will; AND
(5) his planned disposition of assets.
Presumption that testator knows this; burden on contestant to prove otherwise.
In NY, can a surviving spouse retain an interest in a survivorship estate/joint bank account held between the deceased spouse and a third party? What test is used?
“Consideration furnished” test = surviving spouse has the burden of establishing the amount of decedent’s contribution to the estate / amount in bank account.
If the account/estate was created more than 1 year before death of the deceased spouse OR more than 1 year before the couple’s marriage, only 1/2 is counted as a testamentary substitute.
What are the exceptions to no-contest clauses in a will?
(1) Forgery,
(2) Revocation of a will by presenting a subsequent will,
(3) jurisdiction,
(4) proceedings brought on behalf of infants or incompetents
(5) proceedings brought for construction of a will’s terms.
When a spouse exercises the spousal elective share, from what property is the elective share satisfied? How does it reduce the share taken by others?
In this order:
(1) apply property already received by the spouse (don’t count life estates
(2) apply money from the rest of the estate
What is an intestate surviving spouse entitled to?
If decedent has no issue = Everything
If decedent has issue = $50,000 + 1/2 of entire estate
What is issue of a intestate decedent entitled to?
After surviving spouse takes, if there is one, remainder of the state is split up by “representation” (per capital at each generation).
What is the statute that governs wills in NY?
The Estates, Powers and Trusts Law (EPTL)
When is intestacy used?
(1) person dies without a will
(2) person drafts a will that is found invalid
(3) person fails to dispose of entire estate (partial intestacy)
What individuals take under rules of intestacy?
(1) Surviving spouse, if there is one
2) any descendants (children, grandchildren, etc.