Wills

Question 1

No contest clauses

Answer 1

Generally given full effect even where there is probable cause to contest the will

Question 2

Actions that will not result in forfeiture even where there is a no-contest clause

Answer 2

1) Contest on the ground that the will was forged or revoked by later will (if probable cause)
2) Objection to the jurisdiction of the court in which the will was offered for probate
3) Contest brought by fiduciary on behalf of infant/incompetent
4) Action to construe will’s terms
5) Contest filed but subsequently withdrawn
6) Discovery to see if grounds to contest exist

Question 3

Joint will where later party breaches contract- procedure

Answer 3

1) Probate the second will even though the first was written as a contract
2) Impose a constructive trust

Question 4

Testamentary capacity requires

Answer 4

1) Understands the nature of the act
2) Nature and approximate value of his property
3) Natural object of his bounty (family members and loved ones)
4) Understand the dispositions he is making

Question 5

Undue influence standard

Answer 5

Will contestant has burden of proving

1) Existence and exertion of an influence
2) Effect of such influence was to overrule the mind and will of testator
3) Product is a will or gift which would not have happened but for that influence

Question 6

Order of priority for appointment as administrator

Answer 6

1) Surviving spouse
2) Children
3) Grandchildren

Question 7

Distribution where decedent survived by spouse and no children

Answer 7

Everything to spouse

Question 8

Decedent survived by spouse and children

Answer 8

Spouse takes first 50k and half residuary estate

Question 9

Decedent survived by children and issue of predeceased children

Answer 9

Per capita at each generation- Two tier distribution

1) First figure out how many ways to divide at the first level
2) Then distribute the portion of the predeceased party to the issue at the second generation whose parents didn’t take

Question 10

Distribution of intestate estate where not survived by spouse or issue

Answer 10

1) Parent
2) Issue of parents
3) Grandparents

Question 11

Per stirpes

Answer 11

Issue of predeceased child takes the share that the predeceased child would have taken

Question 12

Can a will override the default distribution?

Answer 12

Yes

Question 13

Inheritance rights of adopted children

Answer 13

Generally take under the adoptive relationship

Question 14

Exceptions to normal rules of inheritance of adopted children

Answer 14

1) Child adopted by spouse of birth parent

2) Child adopted by relative inherits under the biological relationship unless the decedent is the adoptive parent

Question 15

Nonmarital children

Answer 15

Non-marital children have full inheritance rights from the mother and her family

Question 16

Paternity can be established

Answer 16

1) Father marries mother after child’s birth
2) Order of filiation
3) Father files witnessed and acknowledged affidavit
4) Paternity is established by clear and convincing evidence such as a DNA test

Question 17

Circumstances disqualifying spouse from taking intestate share

Answer 17

1) Divorce or annulment
2) Invalid divorce (not recognized as valid under NY law)
3) Separation decree
4) Marriage is void
5) Abandonment or lack of support

Question 18

When a spouse loses intestate share because of divorce and such, what happens

Answer 18

We treat the former spouse as having predeceased the decedent

Question 19

Advancements and satisfaction of legacies

Answer 19

Requires writing made contemporaneously signed by donor or donee

Question 20

When advancement or satisfaction has been shown, how do we calculate?

Answer 20

Add the gift into the estate, divvy up the assets appropriately, and treat the gift as having been an advancement on the inheritance or intestate share

Question 21

Disclaimer requirements

Answer 21

1) In writing, signed and acknowledged
2) Affidavit saying that it wasn’t for consideration
3) Irrevocable
4) Filed with the surrogate court within 9 months

Question 22

Disclaimer is treated as

Answer 22

Predeceased the decedent unless it would affect shares of other distributees

Question 23

Disclaimer cannot be used to defeat

Answer 23

Federal tax lien

Question 24

Requirements for duly executed will

Answer 24

1) Testator is 18
2) Signed
3) Signature is at the end thereof
4) Signs in the presence of each witness (or acknowledged)
5) Publication
6) Two attesting witnesses
7) Ceremony completed in 30 days

Question 25

Effect of attestation clause

Answer 25

Raises presumption of due execution. Helpful where witnesses are unable to testify for some reason

Question 26

Self-proving affidavit

Answer 26

Contains the statements the witnesses would testify to at probate. Is permitted in lieu of in-court testimony

Question 27

Interested witness statute

Answer 27

Won't collect under the will absent supernumerary or would have taken in intestacy (but gets lesser of two)

Question 28

Foreign wills are admissible to probate if they were validly executed:

Answer 28

1) Under the law of the state where it was executed 2) Under the law of the state where testator was domiciled at execution or at death occurred 3) New York law

Question 29

Will can be revoked in what two ways?

Answer 29

1) Subsequent testamentary instrument | 2) Physical act with intent to revoke

Question 30

Where a later will does not contain language of revocation but conflicts with the first will

Answer 30

To the extent possible, you read the two instruments together. 2nd will only revokes the first will to the extent there are inconsistent provisions (treated as codicil)

Question 31

Revocation by physical act of another

Answer 31

Must be at the testator's request, in the testator's presence, witnessed by at least witnesses

Question 32

Presumption regarding revocation

Answer 32

Will last seen in testator's possession or control is not found after death or is found damaged (torn in two), presumed that T revoked the will by physical act with intent

Question 33

Presumption regarding revocation does not arise where:

Answer 33

The will was last seen in the possession of someone adversely affected by its contents

Question 34

Revival of revoked wills

Answer 34

If a later will revokes an earlier one, the first will cannot be revived by merely revoking the later will

Question 35

How can a revoked will be revived?

Answer 35

1) Re-execution | 2) Republication by codicil that incorporates old will by reference

Question 36

DRR

Answer 36

Permits revocation of later will to be disregarded where 1) Testator's revocation is premised upon a mistake of law (that revocation would validate the prior will) 2) Disposition that results from disregarding the revocation must come close to the dispositions he attempted to revive in the earlier will

Question 37

Lost wills statute

Answer 37

Lost will proponent must prove that 1) The lost will was duly executed 2) Lost will was not revoked 3) Will's provisions are clearly and distinctly proven by each of at least two credible witnesses or by a copy

Question 38

Anti-lapse

Answer 38

Saves a gift that would otherwise lapse due to death of beneficiary where 1) Deceased beneficiary was T's issue or sibling 2) Deceased beneficiary leaves issue that survive T

Question 39

What type of language will trump anti-lapse?

Answer 39

A condition to a bequest such as "if he survives me"

Question 40

Anti-lapse and adopted out child

Answer 40

Where a testator names an adopted out child in will, anti-lapse saved the gift for the son's issue after the son predeceased testator

Question 41

Surviving residuary beneficiaries rule

Answer 41

Where residuary estate is devised to two or more persons and the gift to one of them fails or lapses, the other residuary beneficiaries take the entire residuary estate in proportion to their interests unless anti-lapse applies

Question 42

Key to RUSDA

Answer 42

Look at whose estate you're distributing. We treat the other dead person as having predeceased the decendant

Question 43

RUSDA and jointly held property

Answer 43

Passes as though each co-owner survived the other

Question 44

Changes in marital status after will is executed

Answer 44

Final order of annulment, separation, or divorce revokes all gifts and fiduciary appointments made in favor of the spouse, though appointment as guardian of children is not affected

Question 45

Pretermitted child

Answer 45

If testator had at least one child, pretermitted child takes nothing If will made gifts to other children, pretermitted child shares in as if a class gift was made If limited provision was made to children living, takes his intestate share If no children when will was executed, takes his intestate share

Question 46

Negative bequests rule

Answer 46

When a will does not make a complete distribution, words of disinheritance are given full effect

Question 47

Negative bequests and anti-lapse

Answer 47

We don't presume the testatory intended to disinherit the entire line, so we treat the disinherited child as predeceased like in anti-lapse

Question 48

Incorporation by reference

Answer 48

Not recognized in New York

Question 49

Facts of independent significance

Answer 49

Will provision providing that a beneficiary or amoutn of disposition will be determined by some future unattested act occurring after the will's execution will be valid if the future act has some lifetime significance

Question 50

Types of gifts

Answer 50

1) Specific 2) Demonstrative 3) General 4) Residuary

Question 51

Specific gift

Answer 51

Devises specific property or gift

Question 52

Demonstrative legacy

Answer 52

Designates a specific source from which a general amount is to be paid

Question 53

General legacy

Answer 53

General amoutn

Question 54

How are general gifts abated?

Answer 54

Pro rata

Question 55

Three statutory exclusions to ademption

Answer 55

1) Insurance proceeds for lost, damaged, or destroyed property to the extent paid after death 2) Proceeds received under executory contract to extent paid after death 3) Proceeds from a guardian or conservator's sale of specifically bequeathed property if they can be traced

Question 56

Gifts of shares of stock

Answer 56

Publicly traded company- general unless he bequeathed "my stock" Stock in closely held corporation is a specific gift

Question 57

Probate assets do not include (4)

Answer 57

1) Property passing by right of survivorship 2) Property passing by contract 3) Property held in trust 4) Property over which decedent held a power of appointment

Question 58

Elective share formula

Answer 58

Greater of 50k and 1/3 of the augmented estate

Question 59

Non-testamentary substitutes

Answer 59

Important- life insurance Premarriage irrevocable transfers Irrevocable transfers made more than one year before death

Question 60

Rules for inclusion of various testamentary substitutes

Answer 60

1) Estates with third party created during marriage- consideration furnished test (burden on electing spouse) 2) Estates with 3P created before marriage- one half may be included (still uses consideration furnished) 3) Estates with surviving spouse- half is a testamentary substitute