Wills/ Decedents estates Flashcards
When does a lapse occur?
When a beneficiary dies during a testator lifetime (beneficiary dies before the testator) then gift is said to lapse (fail)
What is ademption?
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)
What is the anti-lapse statue?
a gift doesn’t lapse (that otherwise would) but vests in decreased beneficiary’s issue who survive testator IF certain conditions are met
What is a specific gift? How is it treated in terms of ademption?
- gift of particular asset
- gift adeems (fails) unless it refers to property & proceeds from sale/ transfer of such property can be traced
What is a demonstrative gift? How is it treated in terms of ademption?
- general gift paid from a particular source ($500 from 1000 IBM shares)
- don’t adeem
What are the 4 requirements of a valid disclaimer of interest in a testator’s estate by a beneficiary?
- signed writing
- affidavit saying no consideration given to disclaim
- disclaimer must be irrevocable; and
- filed w/in 9 months after date of testator’s death
What 3 things alone are NOT evidence of undue influence?
- mere opportunity to influence
- susceptibility to influence (old age/ illness)
- OR unequal dispositions
What is an advancement?
A lifetime gift to a child/ descendent presumed to be advance payment of child’s interstate share
When does an abatement occur?
When estate assets are insufficient to pay all claims & cover all gifts (estate is said to “abate” to satisfy creditors)
What 2 conditions must be met for an anti-lapse to occur?
- predeceased beneficiary was testator’s issues or sibling AND
- predeceased left issue who survived testator
What is latent ambiguity?
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)
What is patent ambiguity?
mistake is on face of will0
ex. will gives gift to mary & mentions 2 cousins named mary
- declarations to 3rd parties not admitted
What is a general gift? How is it treated in terms of ademption?
- straight $
- don’t adeem
What is a living will?
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)
What does the uniform simultaneous death act (USDA) do?
- 2 ppl died seemingly simultaneously
- property of each distributed as though they survived the other
What is power of attorney?
document that gives another person legal authority to act on prinicpals behalf
What 3 things must a will contestant show in asserting an undue influence claim?
- existence & exertion of an influence
- such influence overpowered mind of testator
- influence results in a will (or gift) that wouldn’t have occurred but for influence
When is the “whichever is least” rule not void?
- 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
What is partial intestacy?
Will does not make complete distribution
When will the “which ever is least” rule apply?
when a will beneficiary is also an attesting witness
What is the general order of abatement? (5)
Debts are paid out of or by selling:
- property
- residuary
- general dispositions
- demonstrative gifts
- specific gifts
What is a surviving spouse’s elective share?
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
What is the doctrine of dependent relative revocation (DRR)?
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
When is intestate share not more than elective share?
When testamentary substitutes are involved
When is extrinsic evidence allowed?
to clarify latent or patent ambiguity
What 3 written disclosures are required of a drafting attorney that is named as the executor?
- any person could be executor
- executor receives a statutory commission
- attorney will be entitled to attorneys fees for representing estate
* client must sign acknowledgement of disclosure w/ 2 witnesses
What is required to create a living will?
must be signed and dated in presence of 2 adult witnesses who also sign (AKA health care proxy)
Why would being declared mentally incompetent alone not strip testator of testamentary capacity?
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
What are the 4 grounds of contesting a will?
- insufficient capacity of testator
- undue influence
- fraud
- mistake (latent or patent ambiguity)
When does a class gift close?
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)
What 3 things are required for a valid revocation by proxy?
- testator must request proxy revoke will
- testator present
- at least 2 witnesses
What does an after born child take if testator limited gifts to her children living at the time will was executed?
intestate share (proportional share)
What effect does testator’s divorce or annulment that occurs after execution of will have on his will?
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
