Wills Flashcards
What is the purpose of NY’s anti-lapse statute?
General rule = If a benefiicary DIES during the testator’s lifetime, the gift to the beneficiary LAPSES (i.e. fails), UNLESS the gift is SAVED by an anti-lapse statute
What are the 2 reqs for the application of NY’s anti-lapse statute?
In NY, a gift does NOT lapse, but VESTS in the deceased beneficiary’s ISSUE IF: 1) the predeceased beneficiary was the testator’s ISSUE or NATURAL SIBLING (i.e. brother/sister); AND 2) the predeceased beneficiary LEAVES an ISSUE that survives the testator NOTE: Does NOT apply if condition precedent(i.e. “if he survives me”) is used If “adopted-out” childis SPECIFICALLY listed as beneficiary in Will →adopted-out child’s issue can take under anti-lapse statute REMEMBER: normally adopted out children have NO inheritance rights from the birth parents OR family DOES NOT APPLY TO SPOUSE (even if the predeceased beneficiary leaves a will giving everything to that spouse!)
What is the effect if a beneficiary “disclaims” a gift?
Same as w/ intestacy→ a disclaimant is CONSIDERED to have PREDECEASED the testator NY’s anti-lapse statute applies IF (i) the disclaimant is an ISSUE or SIBLING of the testator; AND(ii) the disclaimer leaves a surviving ISSUE→ gift goes to issue
What is the Surviving Residuary Beneficiary Rule?
Absent CONTRARY provision in the Will… When RESIDUARY is devised to 2 or more persons & gift to 1 fails/lapses (& anti-lapse does NOT apply) → then OTHER residuary beneficiaries take the entire residuary estate, in proportion to their interest in the residue NOTE: if anti-lapse statute APPLIES, then the gift passes to the ISSUE
What is the rule re: gifts to a “generic class”, which has a predeceased member?
Absent a contrary prvn in the Will…. If the Will makes a gift to a group of persons as a “generic” class (i.e. gift to “children”, “siblings”, etc) AND some members of that group PREDECEASE the testator → the SURVIVING class members TAKE in equal share BUT, IF NY’s anti-lapse statute applies (i.e. member is ISSUE or SIBLING of testator AND leaves a surviving issue) → the share GOES to the predeceased member’s ISSUE NOTE: if the gift was “INDIVIDUALLY” named (i.e. not as a class), then the lapsing share will go to the RESIDUARY (unless anti-lapse applies)
What 2 groups CANNOT take part of a class gift?
The 2 groups are… 1) “Adopted-out” children: if a class gift is to “children”, ANY adopted out children DO NOT take as part of the “class” (REMEMBER: adopted out children have NO inhereitance rights from birth parents OR birth family) BUT, the adopted-out child WOULD take as a class member in the adopting family 2) Later-born class members (after testator OR life tenant dies) are NOT a part of the “class” (i.e. the Rule of Convenience) BUT, children in GESTATION at time of testator’s or life tenant’s death ARE class members (Womb Rule)
What is the rule when a testator AND a beneficiary die simultaneously?
Revised Uniform Simultaneous Death Act (RUSDA) Absent a Will prvn to the contrary… If a BENEFICIARY and testator die simulatenously (or almost simultaneously) AND there is insufficient CLEAR AND CONVICING evidence to prove the beneficiary has SURVIVED the testator by MORE THAN 120 HRS (5 DAYS)→ PRESUME that the BENEFICIARY has PREDECEASED the testator IF (assumed) predeceased beneficiary is an ISSUE or SIBLING of the testator, then NY’s anti-lapse statute applies (assuming the predeceased beneficiary has left a surviving issue)
What is the rule for distributing jointly-held property when both joint tenants die simultaneously?
Revised Uniform Simultaneous Death Act (RUSDA) Assuming both dies w/in 120hrs (5 days)… STEP 1: RUSDA theoretically SEVERS the right of survivorship in the joint property, rendering it a tenancy in common STEP 2: Property of a SPECIFIC co-owner passes as though HE survived the OTHER co-owner, so the property would go to HIS issue NOTE: the distribution would be the SAME for tenants by the entirety and joint bank accounts E.g.H & W die simultaneously & JT w/ right of survivorship. H has 2 children, A & B, from a previous marriage, & a child w/ W. TIC - A, B, & C each take 1/3 of H’s half and then C takes W’s half.
What is the effect on a Will if the testator marries after Will is executed?
Marriage AFTER the execution of a Will has NO effect on the validity of the Will, BUT it MAY affect gifts and dispositions under the Will NY law provides for a “right of election” so that a testator CANNOT disinherit his spouse
What is the effect on a Will if the testator “unmarries” after Will is executed?
If a ct renders a FINAL decree (i.e. NOT in process) of divorce, annulment or separation (i.e. NOT an agmt) AFTER the execution of a Will, ALL gifts and fiduciary appointments in favor of the former spouse are REVOKED by operation of law EFFECT = read the Will as if the former spouse has PREDECEASED the testator property that WOULD have passed by operation of law are OVERRULED (i.e. a former spouse couldn’t take an insurance benefit EVEN IF named on the docs) NOTE: NY’s anti-laspe statute does NOT apply b/c a spouse is NOT an issue or a sibling EXCLUSIONS: All gifts and fiduciary appointments in favor of the ISSUE of the former spouse are NOT revoked An appointment of the former spouse as GUARDIAN of the couple’s children is NOT affected If the couple RECONCILES and REMARRY, ALL prvns in favor of the “former” spouse are RESTORED
What is the effect of pretermitted children on a Will?
1) If the testator has ONE OR MORE children when the Will was executed; AND… there is NO provision made for ANY child → the pretermitted child INHERITS NOTHING the Will made gifts to the other children→ the pretrmitted child SHARES the amt w/ the other children AS IF a CLASS gift was made The pretermitted child takes from “the other children proportionately, not equally” it appears that the testator’s INTENTION was to ONLY make a “ltd provision” to the children living at the time the Will was executed→ the pretermitted child takes his INTESTATE share (which will come from other beneficiaries proportionately) 2) If the testator had NO CHILDREN when the Will was executed→ the afterborn child takes his INTESTATE share
When does the EPTL protect pretermitted children?
“Pretermitted children” = children born OR adopted AFTER the Will is executed Rule = the EPTL ONLY protected pretermitted children who are… NOT provided for by any settlement; AND NEITHER provided for NOR mentioned in the Will
What is a pwr of appointment?
An authority created in, or reserved by a person, enabling that person to designate, within limits prescribed the creator of the power, the persons who shall take the property and the manner in which they take it It allows someone to look at the facts in existance in the FUTURE for distribution of property Characters: Donor – creator of POAppt Donee – person who is given POAppt to use Takers in default – persons who take property, if the donee fails to correctly exercise the power
What are the 4 classifications of pwr of appointment?
Dimension 1: General vs. Special 1) General PoAppt = DONEE can appoint the property to themselves, his estate, or his creditors (as if he owned the property himself) 2) Special (Limited) PoAppt = DONEE cannot appoint to themselves, BUT RATHERjust to limited class named by DONOR(e.g. “to any one of her descendants”) Dimension 2: Presently Exercisable vs. Testamentary **3) Presently Exercisable PoAppt = DONEE can appoint during HER lifetime (via lifetime trust) NOTE: DONEE can exercise the pwr via a Will UNLESS the DONOR’s Will expressly forbids it If DONEE does not exercise the pwr of appt and there is NO default taker→ on her death the trustee will distribute the principal of the trust property to the DONOR’S residuary beneficiary (OR DONOR’S intestate estate) 4) Testamentary PoAppt = DONEE can appoint only by Will after DONOR’S death NOTE: in ANY pwr of appt question, FIRST classify the pwr
What types ofpwr of appts are considered testamentary substitutes (T-Subs)?
Count as T-Sub: General Presently Exercisable PoAppt - DONEE can appt property to herself ———- Are NOT T-Subs: General Testamentary PoAppt - DONEE can’t get to the res (trust property) in her lifetime Special PoAppt - DONEE can NEVER get to it
What types ofpwr of appts are subject to creditors’ reach?
Creditors’ can get to: 1) General Presently Exercisable PoAppt - DONEE can reach the assets as if she owned them, so the creditors can as well ———– Creditors’ CANNOT get to: 1)General Testamentary PoAppt - DONEE can’t get to the assets in her lifetime EXCEPTION: Creditors CAN attack IF (i) a person is BOTH DONOR and DONEE of the pwr; OR(ii) DONEE can exercises in favor of her estate 2) Special PoAppt - DONEE can NEVER get to the assets, so neither can the creditors
How do you determine if a pwr of appt violates the Rule Against Perpetuities (RAP) or the Suspension Rule?
FRAMEWORK FIRST: Identify the type of power 1) General PRESENTLY EXERCISABLE pwr of appt VS. 2) Special pwr of appt OR General TESTAMENTARY pwr of apt ———– SECOND: Is the power valid under RAP? NOT AN ISSUE IF GRANT IS TO A LIVING PERSON 1) General PRESENTLY EXERCISABLE pwr of appt: to be valid, the pwr must be certain to be ACQUIRED w/in LIB + 21 yr 2) Special pwr of appt OR General TESTAMENTARY pwr of apt: to be vald, the pwr must be certain to be EXERCISED w/in LIB + 21 yrs ———– THIRD: Are the interests CREATED by the pwr VALID? 1) General PRESENTLY EXERCISABLE pwr of appt: to be valid, the pwr must be certain to be ACQUIRED w/in LIB + 21 yr IFF there is a future interest created (i.e. a Will), we measure from TIME OF CREATION of future interest (no Relation Back Doctrine) We do NOT apply the Second Look Doctrine here If invalid b/c of RAP or Suspension Rule, apply NY reform statute (i.e. reduce age contingency to 21 yrs) 2) Special pwr of appt OR General TESTAMENTARY pwr of apt: Relation Back Doctrine: We “FILL IN THE BLANKS” (i.e. look at from time of DONOR and read AS IF all part of his Will) to see if the interest created will vest w/in LIB + 21yr If violates RAP, we can apply “Second Look Doctrine” to see if the interest will vest looking from the death of the measuring life REMEMBER: if it’s a “class gift” it must be “good as to ALL” If STILL invalid b/c of RAP or Suspension Rule, apply NY reform statute (i.e. reduce age contingency to 21 yrs)
Can extrinsic evidence be used to clarify a prvn in a Will?
Absent ambiguity, it is CONCLUSIVELY presumed that the testators have READ the Will and INTENDED its consequences→ the plain meaning of the Will won’t be overturned by extrinsic evidence IF it’s “AMBIGUOUS”… 1) If it is a “latent ambiguity” (i.e. not evident by looking at the will)→then extrinsic evidence IS admissible to clarify/find the meaning of the testator’s words Can use (i) “facts & statements” evidence abt the family relationships; (ii) evidence abt the testator’s declaration of intent to 3d parties; OR (iii) evidence of testator’s stmt to an atty who prepared the Will 2) If it is a “patent ambiguity” (i.e. an obvious error like missing a few zeros in $ amt) Can use (i) “facts & statements” evidence; OR (ii) evidence of testator’s stmt to an atty who prepared the Will BUT NOTevidence abt the testator’s declaration of intent to 3d parties
What is a conditional will?
A Will that expressly provides that it will be operative ONLY IF some condition is met IF condition is not met→the Will is DENIED PROBATE **IF YOU GET A CONDITIONAL WILL, argue both sides that it may NOT be a condition, but rather a “motive or inducement” for making a Will
When is a K to make or NOT revoke a Will enforceable?
A K to make a Will or NOT revoke a Will can ONLY be established by an EXPRESS STMT OF INTENT that the Wills prvns are intended to constitute a K b/t the parties A Joint Will (i.e. a Will of 2 or more ppl in one document) is NOT contractural (i.e. non-REVOCABLE by the surviving spouse) UNLESS expressly stated to be contractural (i.e. language NOT to revoke will not be read into a Will just b/c “we” language is being used) If a Will IS contractural and the survivior executes another Will that has INCONSISTENT prvns→ a ct will read both together AND impose a CONSTRUCTIVE TRUST to protect adversely-effected beneficiaries from first Will
What is the mental capcity req’d to execute a Will?
Testator must have SUFFICENT capcity to… 1) Understand the nature of the act (i.e. that he’s writing a Will) 2) Know the nature & approximate value of his property 3) Know the natural “object of his bounty” (i.e. he must know who is family is); AND 4) Understand the dispositions he was making The burden of proof is on the Will proponent NOTE: “capacity” to make a Will is LESS DEMANDING than the capcity to make other legal instruments A testator CAN properly execute a Will during a “lucid interval” A testator’s Will MAY be invalidated if its the product of an insane delusion (i.e. paranoia)
How can undue influence on a testator be established?
The Will CONTESTANT has the burden of proving… 1) The existence & exertion of an INFLUENCE; 2) The effect of such an influence was to OVERPOWER the will and mind of the testator; AND 3) The product is a Will or a gift in a Will that would NOT have happened “BUT FOR” the influence INSUFFICIENT EVIDENCE = the OPPORTUNITY to exert influence the SUSCEPTIBILITY to influence due to AGE or ILLNESS UNEQUAL distributions SUFFICIENT (but rebuttable) EVIDENCE = someone who is in a CONFIDENTIAL relationship with the testator who was ACTIVE in preparing the Will gifts to the DRAFTING ATTY (established sua sponte by ct w/ “Putnam Scrutiny”)
What disclosure must an atty who is appointed executor make?
A drafiting atty who is named as EXECUTOR of the testator’s estate MUST given WRITTEN disclosure to the testator that states… Any person can be named as executor, NOT just an atty The executor receives a STATUTORY commission; AND That the atty will ALSO be entitled to legal fees for representing the estate Furthermore… Testator/client must SIGN the written disclosure in the presence of 2 WITNESSES If the drafting atty FAILS to comply with the req, he receives ONLY 1/2 of the statutory commission
What is the rule for No Contest (“In Terrorem”) Cls?
No contest cl = a cl that states that IF ANY one objects to the Will, they will get NOTHING ——— In NY, the cl is given FULL EFFECT, EVEN IF there was probable cause to challenge the Will EXCEPTIONS: a cl will NOT be enforced if the Will Contest is… 1) Claiming forgery of that the Will was EXPRESSLY revoked by a later Will (if the challenge has probable cause); NOTE: this exception does not apply to revocation by physical act 2) Filed on behalf of an INFANT or INCOMPETENT 3) A construction proceeding to construe the TERMS of the Will; OR 4) An objection based on jx of the ct ——— NOTE: a person CONSIDERING challenging a Will w/ a no-contest cl can engage in SOME discovery w/o “tripping” the cl, including discovery re: Person who prepared the Will The attesting witness The Will proponents; The nominated executors; OR Deposition of a person w/ information of “potential value or relevance”
What is a pwr of atty?
A written AUTHORIZATION for an agent (an “atty-in-fact”) to act on behalf of the grantor of the pwr Can be generic or specific Non-durable pwr of atty = revoked by operation of law by either GRANTOR’S death or incapacity (valid until notice of death is received) Durable pwr of atty = extends BEYOND the GRANTOR’S incapacity UNLESS it has specific language that it is terminated by the grantor’s incapacity
What is a health care proxy?
A type of durable pwr of atty that appoints an agent to make HEALTH CARE DECNS on behalf of the grantor It does not become effective UNTILL the grantor becomes incapacitated AND remains effective NWS incapacity MUST be: (1) in writing; (2) signed by the grantor; AND (3) witnessed by at least 2 adults
What is a living will?
States an individual’s desires, should he become terminally ill or be in a persistent vegatative state, re: whether to administer or withold… 1) Life sustaining procedures; 2) Artificial nutrition or hydration; AND 3) Treatment to alleviate pain NY Ct of Appeals has held that patients’ right to decline treatment is G’TEED
What is NY’s Negative Bequest Rule?
EVEN IF a Will does not make a COMPLETE distribution of the estate, resulting in partial intestacy→words of disinheritance are given FULL EFFECT We treat any NEGATIVE bequests as if the “beneficiary” has PREDECEASED the testator Anti-lapse statutestill is operative (if “beneficiary” was an ISSUE or sibling)
How are lifetime gifts from testators (post-Will execution)to beneficiaries treated?
Satisfaction of legacies →a lifetime gift (made after a Will’s execution) to a beneficiary named in the testator’s Will was PRESUMPTIVELY made in partial or total satisfaction of the legacy (to be taken into account when distributing the testator’s property in death) ~ Advancement (intestacy) NY has REJECTED “Satisfaction of legacies” doctrine There is NO satisfaction of legacy UNLESS proved by… 1) a CONTEMPORANEOUS WRITING made at the time of the gift; AND 2) signed by the DONOR or DONEE
Is it possible to incorporate into a Will by reference to an extrinsic document?
NO! NY does NOT recognize incorporation by reference Incorp by reference = “I devise all things listed on the piece of paper in my desk” EVERYTHING has to be formally executed (i.e. 7 pt test)
What are “nontestamentary acts” AND are they valid?
“Nontestamentary acts”:lifetime acts that have their own purpose or motive independent of any testamentary purpose that occur after a will is executed should be given FULL effect in the distributions made. E.g. “car I own at my death”; “contents of chest”; “furnishings in my living room” EXCEPTION: this is NOT VALID for title documents (e.g. deeds, stock certificates, bank passbooks); THESE can only be transferred as mandated by law
What are the 5 types of testamentary gifts that can be included in a Will?
1) Specific gift - only that asset can satisfy the gift “I devise my computer to my son, Seth” 2) Demonstrative legacy - A general amount from a specific source “I bequeth $1MM to be paid from proceeds of sale of my house” 3) General legacy - Gift of a general dollar amount “I give the sum of $56MM to Jim” 4) Residuary disposition “I give all the rest, residue and remainder of my estate to my brother Jim.” 5) Intestate property - If a partial intestacy results because Will has no residuary clause OR something in residuary clause given to a friend who predeceased so anti-lapse does not apply