Wills Flashcards
No contest clauses
Generally given full effect even where there is probable cause to contest the will
Actions that will not result in forfeiture even where there is a no-contest clause
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5) Contest filed but subsequently withdrawn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
Joint will where later party breaches contract- procedure
1) Probate the second will even though the first was written as a contract
2) Impose a constructive trust
Testamentary capacity requires
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
Undue influence standard
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
Order of priority for appointment as administrator
1) Surviving spouse
2) Children
3) Grandchildren
Distribution where decedent survived by spouse and no children
Everything to spouse
Decedent survived by spouse and children
Spouse takes first 50k and half residuary estate
Decedent survived by children and issue of predeceased children
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
Distribution of intestate estate where not survived by spouse or issue
1) Parent
2) Issue of parents
3) Grandparents
Per stirpes
Issue of predeceased child takes the share that the predeceased child would have taken
Can a will override the default distribution?
Yes
Inheritance rights of adopted children
Generally take under the adoptive relationship
Exceptions to normal rules of inheritance of adopted children
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
Nonmarital children
Non-marital children have full inheritance rights from the mother and her family
Paternity can be established
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
Circumstances disqualifying spouse from taking intestate share
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
When a spouse loses intestate share because of divorce and such, what happens
We treat the former spouse as having predeceased the decedent
Advancements and satisfaction of legacies
Requires writing made contemporaneously signed by donor or donee
When advancement or satisfaction has been shown, how do we calculate?
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
Disclaimer requirements
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
Disclaimer is treated as
Predeceased the decedent unless it would affect shares of other distributees
Disclaimer cannot be used to defeat
Federal tax lien
Requirements for duly executed will
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
Effect of attestation clause
Raises presumption of due execution. Helpful where witnesses are unable to testify for some reason
Self-proving affidavit
Contains the statements the witnesses would testify to at probate. Is permitted in lieu of in-court testimony
Interested witness statute
Won’t collect under the will absent supernumerary or would have taken in intestacy (but gets lesser of two)
Foreign wills are admissible to probate if they were validly executed:
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
Will can be revoked in what two ways?
1) Subsequent testamentary instrument
2) Physical act with intent to revoke
Where a later will does not contain language of revocation but conflicts with the first will
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)
Revocation by physical act of another
Must be at the testator’s request, in the testator’s presence, witnessed by at least witnesses
Presumption regarding revocation
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
Presumption regarding revocation does not arise where:
The will was last seen in the possession of someone adversely affected by its contents
Revival of revoked wills
If a later will revokes an earlier one, the first will cannot be revived by merely revoking the later will
How can a revoked will be revived?
1) Re-execution
2) Republication by codicil that incorporates old will by reference
DRR
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
Lost wills statute
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
Anti-lapse
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
What type of language will trump anti-lapse?
A condition to a bequest such as “if he survives me”
Anti-lapse and adopted out child
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
Surviving residuary beneficiaries rule
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
Key to RUSDA
Look at whose estate you’re distributing. We treat the other dead person as having predeceased the decendant
RUSDA and jointly held property
Passes as though each co-owner survived the other
Changes in marital status after will is executed
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
Pretermitted child
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
Negative bequests rule
When a will does not make a complete distribution, words of disinheritance are given full effect
Negative bequests and anti-lapse
We don’t presume the testatory intended to disinherit the entire line, so we treat the disinherited child as predeceased like in anti-lapse
Incorporation by reference
Not recognized in New York
Facts of independent significance
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
Types of gifts
1) Specific
2) Demonstrative
3) General
4) Residuary
Specific gift
Devises specific property or gift
Demonstrative legacy
Designates a specific source from which a general amount is to be paid
General legacy
General amoutn
How are general gifts abated?
Pro rata
Three statutory exclusions to ademption
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
Gifts of shares of stock
Publicly traded company- general unless he bequeathed “my stock”
Stock in closely held corporation is a specific gift
Probate assets do not include (4)
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
Elective share formula
Greater of 50k and 1/3 of the augmented estate
Non-testamentary substitutes
Important- life insurance
Premarriage irrevocable transfers
Irrevocable transfers made more than one year before death
Rules for inclusion of various testamentary substitutes
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
