Wills: Execution, Revocation, Components

Question 1

What is a codicil?

Answer 1

It’s an amendment or supplement to a will

Question 2

How old must you be to make a will? Separately, does a sham or joke will constitute testamentary intent?

Answer 2

You must be 18 make a will.

Testamentary intent requires genuine intent.

Question 3

Are conditional wills allowed?

Answer 3

Yes, they are (e.g., if I should not survive this trip…).

Question 4

What is required for the execution of an attested will? 3 requirements

Answer 4

1. Execution by the testator AT THE END OF THE DOCUMENT in the presence of 2 witnesses
2. The 2 witnesses must ATTEST THE TESTATOR’S SIGNATURE within 30 days of each other
3. The testator MUST DECLARE to the witnesses that the instrument is her will

Question 5

Does an interested witness to the execution of the will invalidate the will? E.g., if the witness is the recipient of a disposition under the will

Answer 5

No, a disposition to witness NEVER invalidates the will. However, it voids disposition to the interested witness unless there are 2 disinterested witnesses. (Unless the interested witness would be an intestate distributee if the will were not executed, in which case the witness gets the lesser of the legacy or the intestate share.)

Question 6

How do you prove the proper execution of the will? Who carries the burden?

Answer 6

The proponent of the will must prove it was duly executed before a court or jury. Generally, this requires testimony of the 2 attesting witnesses, but if they are unavailable proof of their handwriting may do, and affidavit by the unavailable witness may also resolve the issue.

Question 7

Does a subsequent marriage affect a will?

Answer 7

A subsequent marriage does not affect the will because the surviving spouse have the protection of the elective share statute

Question 8

What is the effect of divorce, legal separation, or annulment on a testamentary disposition in favor of a former spouse?

Answer 8

Such marital actions REVOKE ALL testamentary provisions in favor of the FORMER SPOUSE, including appointments as executor or trustee. The state will treat it as though the former spouse predeceased the testator.
This does not revoke gifts to a spouse’s relatives or a person who was previously your brother-in-law.

Question 9

If a child is born or adopted after execution of the will and not provided for or mentioned in will, does he share in the estate?

Answer 9

Yes, he shares to the same extent as other children received assets under the will. Other beneficiaries will be reduced pro-rata. (This does not apply if the after born child is provided for by any post will settlement, e.g., trust, life insurance policy, savings bond.) If a codicil is executed after the child’s birth, and the child is not provided for, he is cut out of the will.

Question 10

What formalities are required to revoke a will?

Answer 10

The party must have testamentary capacity and the instrument revoking the will must be executed with THE SAME FORMALITIES as are required for the execution of the will itself. A second will with inconsistent provisions revokes the first will’s contrary provisions.

Question 11

Can you revoke a will physical act? If so, how?

Answer 11

THIS IS ALWAYS A FULL REVOCATION, not partial. If you have the INTENT to revoke, a will can be revoked by mutilation/destruction by the testator or another person by the direction of the testator. The act must be done on the original will, not a copy. ACCIDENTAL DESTRUCTION DOES NOT REVOKE, must have revocation intent at the time.

Question 12

If you revoke a 2nd will, does that revive the prior will?

Answer 12

No. This also applies to codicils, where the original gift will not be revived if the codicil is destroyed.

Question 13

How may a will be revived? 3 possible ways

Answer 13

1. Execution of a codicil incorporating by reference the prior will or certain of its provisions (provided the earlier will was properly executed),
   2 a later writing executed with testamentary formalities, or
   3 a republication of the prior will (full formalities required).

Question 14

When they a lost or destroyed will be admitted to probate? 3 requirements must be met

Answer 14

1. Establish the will was not revoked,
2. Execution of the will is proven (witnesses), and
3. All provisions of the will approved by at least 2 credible witnesses or buy a copy or draft of the will proved to be true and complete.

Question 15

Incorporation by reference in wills is not recognized in New York generally. What is the doctrine of incorporation by reference for wills? What are the exceptions where it is recognized in New York?

Answer 15

Incorporation by reference is where unattested documents are incorporated into the will by reference. NY generally does not recognize it, but allows it with respect to: 1. references to gifts made by another person’s will, 2. Gifts by will to an inter vivos trust executed prior to or at the same time as the will, and 3. Attached lists disposing of tangible personalty.

Question 16

Is an alteration on the face of the will effective to change it? What is required for it to be effective?

Answer 16

For a change on the face of the will to be effective, it must be reexecuted with proper formalities (newly signed and attested). In all other circumstances, a change on the face of the will is ineffective. Executed damn codicil or a new will.

Question 17

vocab is different for dying intestate vs. dying with a will. Below are intestacy terms, give their testacy equivalents:

1. distrubtee
2. administrator
3. administration proceeding
4. intestate estate
5. advancement [to heirs]

Answer 17

1. distrubtee –> beneficiary
2. administrator –> executor
3. administration proceeding –> probate proceeding
4. intestate estate –> probate estate = assets held by decedent ALONE
5. advancement [to heirs] –> satisfaction of legacy

Question 18

what is the 5 point test for validly executed will?

Answer 18

1. 18 y.o.
2. signed by testator or by someone in testator’s presence at their direction (proxy must also sign her name, cannot be W, and must affix address)
3. 2 Ws who see you sign OR TO WHOM YOU ACKNOWLEDGE EARLIER SIG
4. T publishes will (i.e., declares that it’s their will)
5. Execution ceremony: 2 Ws have to sign w/in 30 days of each other. Can be years after T.

Question 19

formalities required for codicil?

Answer 19

same as will

Question 20

If T signs in the middle of the second to last page of the will and not at the end, what’s the effect?

Answer 20

all bequests after the signature are not given effect. So everything above the signature is valid, and everything below the signatures invalid. Except if the material below the signature is so important that giving effect to the material above and below would vitiate the will.

Question 21

what’s the attestation clause?

Answer 21

The attestation clause goes after the testator’s signature and before the witnesses’ signature. It states all the relevant requirements listed above for the will to be fully executed. This is prima facie evidence of the facts presented, corroborating witnesses.

Question 22

What is a self proving affidavit?

Answer 22

It is an affidavit signed by the two witnesses in the presence of an attorney, attesting to the seven requirements above. It serves as a replacement for witness testimony.

Question 23

Define INTERESTED WITNESS STATUTE?

Answer 23

An interested witness signing does not invalidate a will, it invalidates a bequest to the interested witness. However, the gift to interested witnesses is fine if you have two disinterested witnesses. Otherwise, interested witness gets lesser of bequest under will or what he’d get under intestacy law.

Question 24

Does the interested witness statute apply to executors? That is, does it apply to someone who is a witness and who is also standing to gain as the executor of the estate?

Answer 24

No, it only applies to gifts under law.

Question 25

Is a will validly executed in another state, is admissible to probate in New York, even if it’s execution does not satisfy New York requirements?

Answer 25

Yes, it’s admissible for probate in NY, however, once it is in a New York probate court, it is treated under New York law once there. The determination with respect to the permissibility of the other states laws reflects only on the execution of the will not on its interpretation.

Question 26

What is a holographic will? Is it valid in New York?

Answer 26

A holographic will is a will executed entirely in the testator’s hand. There are no witnesses. It is not valid in New York. Such wills are only valid for members of the Armed Forces during war.

Question 27

If up someone executes a holographic will in a state the recognizes holographic wills, is it admissible to New York probate if the person dies New York?

Answer 27

Yes, that is admissible to New York probate. If it was executed correctly in the state of its execution, is admissible to probate in New York.

Question 28

If an estate was denied probate due to invalid execution, what happens to the estate?

Answer 28

The estate then passes via intestacy laws.

Question 29

If an estate planning lawyer screws up, who has privity of contract with the lawyer to sue on behalf of of the decedent?

Answer 29

The executor or administrator of the estate has such standing. The beneficiaries have no privity of contract with the lawyer.

Question 30

If someone writes the words “Void. Not my will.” At the top of each page of their will, is that a valid revocation?

Answer 30

If you wrote void across the text of the will itself, that would constitute a revocation. Writing at the top of the page isn’t going to revoke. Revocations can only occur through a instrument that has the same formalities as the will itself, or a physical act, such as tearing it up, or mutilating, or damaging with simultaneous intent to disavow the will.

Question 31

If a person crosses out their signature on there well or cuts it out with a pair scissors, is that valid revocation?

Answer 31

Yes. It is. Any alteration of the signature itself constitutes valid revocation by physical act provided you have the intent to revoke.

Question 32

Where someone executes a second will without formally revoking the first will, how do you read the two together?

Answer 32

You read that you together as consistent, to the extent possible. That is, you read the second one is a codicils the first and resolve all inconsistencies in favor of the more recent document. If the second document is entirely inconsistent with the first document, the first document is revoked by application.

Question 33

If the will that existed during the testator’s lifetime And was last seen in the testator’s possession is not found upon his death, what is the presumption?

Answer 33

The presumption is that the testator destroyed the will by physical act with intent and thereby revoked.

Question 34

Words added to a will after it is signed and witnessed are given effect: Y/N?

Answer 34

Such words are disregarded. You can only amend a will by codicil or by making a new will.

Question 35

Can you partially revoke a will by physical act, e.g., marking it up or tearing out a piece of it?

Answer 35

No, only full revocation by physical act is recognized.

Question 36

If you physically cross out part of the will or edit it by hand before signing it: effective - yes or no?

Answer 36

Yes, such changes are valid, because they were valid at the time of execution.

Question 37

**If you execute a second will, how can you revive the first will after revoking the second will?

Answer 37

You can republish the first will by codicil or you can re- execute the first will in its entirety. Either way the formalities require all formalities of the original execution. You always need a validly executed document to make a change, except when physically revoking the whole thing.

Question 38

**What is dependent relative revocation? DRR

Answer 38

When T intends to revoke will #2 to reinstate will #1, DRR permits the revocation of will #2 to be disregarded and will #2 can be probated. Requirements: (1) revocation based on a mistake of law by T, and (2) reinstating will #2 puts you in the ballpark of the testator’s intent when the testator tried to reinstate will #1. Remember, will #1 must have dispositions similar to will #1 (which T was attempting to reinstate). If the second and first will have very different goals, normal intestacy rules apply and DRR will not apply.

Question 39

When a will is lost, what must its proponent prove to have it probated?

Answer 39

Proponent of the will must prove that (1) it was properly executed, (2) the lost will was not at any point revoked, and (3) the will’s provisions are testified to by two witnesses or by a complete photocopy of the will.