Wills

Question 1

Executing a WILL:

Answer 1

SWEPT

Signed by an adult testator

In writing

Signed at the End by the testator

Published

Two witnesses (Testator signs in their presence or later acknowledges his signature)
* Sign w/n 30 days of one another

Question 2

Contesting a wills validity

Answer 2

TIE

Lack of Testamentary capacity

Undue Influence of fraud

Improper Execution

**STANDING = Intestate distributed (benefit if no will) or named beneficiaries

Question 3

Testamentary Capacity

Answer 3

Testator must:

1. be at least 18 years old and
2. Of SOUND MIND so that without prompting
3. Understands the extent of her estate and she knows the NATURAL OBJECTS OF HER BOUNTY

Question 4

Undue Influence (Wills)

Answer 4

UNFAIR psychological PERSUASION that is exerted on the testator to have them name as a beneficiary the person exerting the undue influence

Presumption: When a beneficiary participates in the preparation and/or execution of the will & when bequest to lawyer

Question 5

Surviving Spouses Right of Election

Answer 5

Surviving spouse of a NY domicile may NOT COMPLETELY DISINHERIT a surviving spouse who is guaranteed up to $92,500 of exempt family property plus at least:

1. A right of election to receive $50,000 unless
2. T’s net estate exceeds $150,000 in which he can elect 1/3 of that amount

Question 6

To determine Spousal Right of Election =

Answer 6

To determine a surviving spouses elective share=

1. NET PROBATE ESTATE

+

ALL BRAIGED JP testamentary substitutes INCLUDING surviving spouse’s

2. DIVIDE this total figure by 1/3

= ELECTIVE SHARE

3. SUBTRACT the value of passing to the surviving spouse

= “NET ELECTIVE SHARE” (others contribute proportionately)

Question 7

Lapse Legacies

Answer 7

A beneficiary designation in a TRIP JAW document will not be given effect (it will lapse) if a named beneficiary uses I DROPS:

NO CONTEST CLAUSE breach

DADS decree (becomes the T’s former spouse)

Beneficiary renounces the interest within NINE months

Beneficiary does NOT survive the testator by FIVE DAYS

T’s will, testamentary substitutes and life insurance on T’s life is treated as if the named beneficiary PREDECEASED the testator

JT or TE distinguished by a DADS decree then distributes as a TC

Beneficiary predeceases the testator

Beneficiary slays the testator

Question 8

Anti Lapse

Answer 8

Issue or sibling of the testator

** Can be defeated by specific contrary language in T’s will specifies “if ___ should predecease me”

Question 9

No Contest Clause aka Interrorem Clauses

Answer 9

Expressly provides for the forfeiture of an inheritance if a beneficiary unsuccessfully contests the validity of a will or any of its provisions, its purpose is to discourage groundless TIE litigation

Question 10

No contest clause EXCEPTIONS:

Answer 10

Infants can always contest a will

Litigation to establish the will as forgery but only if based on probable cause

Demanding an accounting or questioning the conduct of a fiduciary

New York Attorney general is not bound by no contest clauses and can challenge the validity of a will on behalf of charities

Petition for surrogates Construction of a cause in T’s will to ascertain intent (“divorce your husband to take”)

Surviving spouse right of election

Pre trial discovery of SWEPT witnesses (preparer of the will)

Objection to surrogates court for subject matter jurisdiction which is limited

Mentally incapacitated person can contest a will (with a guardian)

Will offered was revoked by a later will if based on probate

Question 11

Breaching the no contest clause:

Answer 11

Treated as immediately pre deceasing the testator, children and siblings will still take under anti lapse statute

Question 12

Ademption:

Answer 12

Specific disposition in a will is T’s bequest of a specific identified item of T’s property, for example, a Picasso painting, a Tiffany lamp

If the property specifically described in T’s will has been lost, destroyed, stolen, or conveyed away (it was sold or T made an AID gift of that item) at the time of T’s death then it a deems and the beneficiary does not receive that bequest

If T had insurance for such an event and the insurance proceeds had not been paid until after T’s death then the specific legatee gets the insurance proceeds

Question 13

Ademption does not apply to:

Answer 13

1. General legacies which are simply sums of money

2. Demonstrative legacies, which are bequests of money from an identified source (Citi bank account)