Wills/ Decedents estates

Question 1

When does a lapse occur?

Answer 1

When a beneficiary dies during a testator lifetime (beneficiary dies before the testator) then gift is said to lapse (fail)

Question 2

What is ademption?

Answer 2

IF a will makes a specific gift of property and this property cant be found or is not owned by the testator the gift fails (adeems)

Question 3

What is the anti-lapse statue?

Answer 3

a gift doesn’t lapse (that otherwise would) but vests in decreased beneficiary’s issue who survive testator IF certain conditions are met

Question 4

What is a specific gift? How is it treated in terms of ademption?

Answer 4

• gift of particular asset

- gift adeems (fails) unless it refers to property & proceeds from sale/ transfer of such property can be traced

Question 5

What is a demonstrative gift? How is it treated in terms of ademption?

Answer 5

• general gift paid from a particular source ($500 from 1000 IBM shares)
• don’t adeem

Question 6

What are the 4 requirements of a valid disclaimer of interest in a testator’s estate by a beneficiary?

Answer 6

1. signed writing
2. affidavit saying no consideration given to disclaim
3. disclaimer must be irrevocable; and
4. filed w/in 9 months after date of testator’s death

Question 7

What 3 things alone are NOT evidence of undue influence?

Answer 7

1. mere opportunity to influence
2. susceptibility to influence (old age/ illness)
3. OR unequal dispositions

Question 8

What is an advancement?

Answer 8

A lifetime gift to a child/ descendent presumed to be advance payment of child’s interstate share

Question 9

When does an abatement occur?

Answer 9

When estate assets are insufficient to pay all claims & cover all gifts (estate is said to “abate” to satisfy creditors)

Question 10

What 2 conditions must be met for an anti-lapse to occur?

Answer 10

1. predeceased beneficiary was testator’s issues or sibling AND
2. predeceased left issue who survived testator

Question 11

What is latent ambiguity?

Answer 11

errors not evident on face of will but evident when applied
(ex 2 ppl w/ same name, or incorrect description of property location)
-all declarants admissible)

Question 12

What is patent ambiguity?

Answer 12

mistake is on face of will0

ex. will gives gift to mary & mentions 2 cousins named mary
- declarations to 3rd parties not admitted

Question 13

What is a general gift? How is it treated in terms of ademption?

Answer 13

• straight $

- don’t adeem

Question 14

What is a living will?

Answer 14

written statement expressing principals desires w/ regard to health care treatment if principal becomes unable to express those desires
-can include life-support termination instructions (Greys)

Question 15

What does the uniform simultaneous death act (USDA) do?

Answer 15

• 2 ppl died seemingly simultaneously

- property of each distributed as though they survived the other

Question 16

What is power of attorney?

Answer 16

document that gives another person legal authority to act on prinicpals behalf

Question 17

What 3 things must a will contestant show in asserting an undue influence claim?

Answer 17

1. existence & exertion of an influence
2. such influence overpowered mind of testator
3. influence results in a will (or gift) that wouldn’t have occurred but for influence

Question 18

When is the “whichever is least” rule not void?

Answer 18

• void unless 2 other disinterested witnesses attest or witness wuld inherit if testator died w/o will (is family)
• then, witness takes lesser of bequest under will OR intestate share

Question 19

What is partial intestacy?

Answer 19

Will does not make complete distribution

Question 20

When will the “which ever is least” rule apply?

Answer 20

when a will beneficiary is also an attesting witness

Question 21

What is the general order of abatement? (5)

Answer 21

Debts are paid out of or by selling:

1. property
2. residuary
3. general dispositions
4. demonstrative gifts
5. specific gifts

Question 22

What is a surviving spouse’s elective share?

Answer 22

the greater of $50,000 or 1/3 of estate minus what spouse got via will and testamentary substitutes
-must be domiciled in NY at testators death to elect

Question 23

What is the doctrine of dependent relative revocation (DRR)?

Answer 23

testator revokes will in order to make new will but new will isn’t completed OR duly executed
-Court may ignore will 2 & give effect to will 1 if it finds intention to revoke will 1 was dependent on making will 2

Question 24

When is intestate share not more than elective share?

Answer 24

When testamentary substitutes are involved

Question 25

When is extrinsic evidence allowed?

Answer 25

to clarify latent or patent ambiguity

Question 26

What 3 written disclosures are required of a drafting attorney that is named as the executor?

Answer 26

1. any person could be executor
2. executor receives a statutory commission
3. attorney will be entitled to attorneys fees for representing estate
   * client must sign acknowledgement of disclosure w/ 2 witnesses

Question 27

What is required to create a living will?

Answer 27

must be signed and dated in presence of 2 adult witnesses who also sign (AKA health care proxy)

Question 28

Why would being declared mentally incompetent alone not strip testator of testamentary capacity?

Answer 28

jury could find testator signed will during a moment of lucidty
-capacity must exist when will executed, mental condition before or after execution is irrelevant

Question 29

What are the 4 grounds of contesting a will?

Answer 29

1. insufficient capacity of testator
2. undue influence
3. fraud
4. mistake (latent or patent ambiguity)

Question 30

When does a class gift close?

Answer 30

at testator's death (only class members that survive testator take absent contrary provision)
-infants in gestation are included (280 days fr conception to birth)

Question 31

What 3 things are required for a valid revocation by proxy?

Answer 31

1. testator must request proxy revoke will
2. testator present
3. at least 2 witnesses

Question 32

What does an after born child take if testator limited gifts to her children living at the time will was executed?

Answer 32

intestate share (proportional share)

Question 33

What effect does testator’s divorce or annulment that occurs after execution of will have on his will?

Answer 33

all gifts to former spouse are revoked (former spouse appt. as guardian of couples kids is not revoked)
-all gifts reinstated if couple re-marries