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State Subjects > Wills > Flashcards

Wills Flashcards

1
Q

No contest clauses

A

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

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2
Q

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

A

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5) Contest filed but subsequently withdrawn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

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3
Q

Joint will where later party breaches contract- procedure

A

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

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4
Q

Testamentary capacity requires

A

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

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5
Q

Undue influence standard

A

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

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6
Q

Order of priority for appointment as administrator

A

1) Surviving spouse
2) Children
3) Grandchildren

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7
Q

Distribution where decedent survived by spouse and no children

A

Everything to spouse

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8
Q

Decedent survived by spouse and children

A

Spouse takes first 50k and half residuary estate

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9
Q

Decedent survived by children and issue of predeceased children

A

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

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10
Q

Distribution of intestate estate where not survived by spouse or issue

A

1) Parent
2) Issue of parents
3) Grandparents

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11
Q

Per stirpes

A

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

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12
Q

Can a will override the default distribution?

A

Yes

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13
Q

Inheritance rights of adopted children

A

Generally take under the adoptive relationship

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14
Q

Exceptions to normal rules of inheritance of adopted children

A

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

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15
Q

Nonmarital children

A

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

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16
Q

Paternity can be established

A

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

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17
Q

Circumstances disqualifying spouse from taking intestate share

A

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

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18
Q

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

A

We treat the former spouse as having predeceased the decedent

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19
Q

Advancements and satisfaction of legacies

A

Requires writing made contemporaneously signed by donor or donee

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20
Q

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

A

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

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21
Q

Disclaimer requirements

A

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

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22
Q

Disclaimer is treated as

A

Predeceased the decedent unless it would affect shares of other distributees

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23
Q

Disclaimer cannot be used to defeat

A

Federal tax lien

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24
Q

Requirements for duly executed will

A

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

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25
Q

Effect of attestation clause

A

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

26
Q

Self-proving affidavit

A

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

27
Q

Interested witness statute

A

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

28
Q

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

A

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

29
Q

Will can be revoked in what two ways?

A

1) Subsequent testamentary instrument

2) Physical act with intent to revoke

30
Q

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

A

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)

31
Q

Revocation by physical act of another

A

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

32
Q

Presumption regarding revocation

A

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

33
Q

Presumption regarding revocation does not arise where:

A

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

34
Q

Revival of revoked wills

A

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

35
Q

How can a revoked will be revived?

A

1) Re-execution

2) Republication by codicil that incorporates old will by reference

36
Q

DRR

A

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

37
Q

Lost wills statute

A

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

38
Q

Anti-lapse

A

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

39
Q

What type of language will trump anti-lapse?

A

A condition to a bequest such as “if he survives me”

40
Q

Anti-lapse and adopted out child

A

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

41
Q

Surviving residuary beneficiaries rule

A

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

42
Q

Key to RUSDA

A

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

43
Q

RUSDA and jointly held property

A

Passes as though each co-owner survived the other

44
Q

Changes in marital status after will is executed

A

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

45
Q

Pretermitted child

A

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

46
Q

Negative bequests rule

A

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

47
Q

Negative bequests and anti-lapse

A

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

48
Q

Incorporation by reference

A

Not recognized in New York

49
Q

Facts of independent significance

A

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

50
Q

Types of gifts

A

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

51
Q

Specific gift

A

Devises specific property or gift

52
Q

Demonstrative legacy

A

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

53
Q

General legacy

A

General amoutn

54
Q

How are general gifts abated?

A

Pro rata

55
Q

Three statutory exclusions to ademption

A

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

56
Q

Gifts of shares of stock

A

Publicly traded company- general unless he bequeathed “my stock”

Stock in closely held corporation is a specific gift

57
Q

Probate assets do not include (4)

A

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

58
Q

Elective share formula

A

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

59
Q

Non-testamentary substitutes

A

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

60
Q

Rules for inclusion of various testamentary substitutes

A

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

State Subjects (9 decks)

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