WILLS / TRUSTS

Question 1

Hypo:

• T’s will devises his coin collection to F.
  
  • Coincs cannot be found upon T’s death (ademption)
• T’s son comes forward stating they were transferred as a complete gift to him prior to T’s death.
• Surrogate will apply 3 rules:

Answer 1

Surrogate will apply 3 rules:

• 1) Claim of gift must be established by Clear & Convincing evidence:
  
  • Burden on Donee to proof high lieklihood of gift.
• 2) CTs policy of not attempting to salvage donative intent that fails to meet AID elements; AND
• 3) Dead Man Statute:
  
  • Seals the lips of an “interested person,” regarding his observations of Decedent’s conduct, or statements overheard.
  • “Interested person” = whether he would either lose or gain directly from the judgment.

Any gift to a spouse w/in 1 year prior to death, (or anyone if more than $14K):

• are brought back into estate for determining her elective share.

Question 2

GIFTS CAUSA MORTIS (GCM)

• Elements: same as Gift
• Revoked by: (3)

Answer 2

GIFTS CAUSA MORTIS (GCM)

• Requires AID elements:
• Conditional gift made in apprehension of an impending death. The Donee’s interest is a mere expectation even if the gift is delivered. The gift does not vest until Donor dies from the contemplated peril or disease.

GCM is revoked by:

• Donor at anytime before death;
• Donee predeceases Donor; OR
• Donor recovers from illness or does not die form the contemplated peril.

Question 3

Totten Trust:

• Rights of parties:
• Depositor can revoke in 3 ways
• Stock Brokerage Account:
  
  • Distinction from Totten Trust (POD or TOD)

Answer 3

A Totten trust is a bank account in Depositor’s name, “in trust for another named person.”

• Does not vest until Depositor dies.
• Funds belong entirely to Depositor until death.
• Totten Trust extinguishes if beneficiary predeceases Depositor.
• D can also change her mind at any time and revoke by:
  
  • 1) Withdrawing all funds;
  • 2) Change name of beneficiary at bank in a:
    
    • SIGNED, NOTARIZED WRITING
  • OR
  • 3) By specifically stating in Depositor’s Will:
    
    • ​a) Account is in Trust,
    • b) Name of beneficiary, AND
    • c) Name of financial institution (bank)
• NY: NO implied testimentary revocation of Totten Trust

Stock Brokerage Account:

• Distinction from Totten Trust (POD or TOD):
• Stock Brokerage Accounts can be held in the owner’s name followed by:
  
  • “Pay on death” (POD) to a named beneficiary, OR
  • “Transfer on death” (TOD) to a named beneficiary.

Question 4

Joint Bank Accounts:

• Rebutable presumption:
• How to terminate:

Answer 4

Joint Bank Accounts:

• raise a rebuttable presumption that Depositor 
intended an immediate vested AID gift of 50% of each deposit into the account (a moiety), and
• that all money in the account pass to the survivor when either dies.

Property jointly held with the surviving spouse:

• creates a conclusive irrebuttable presumption that half of the consideration was furnished by the decedent.
• ONLY 50% of that jointly owned asset is brought back into D’s estate.

Rebuttable by clear and convincing evidence that:

• **the account was established merely for Depositor’s convenience. **
• If after death the bank cannot find the original signature card, then under NY’s best evidence Rule, the court can accept oral testimony (A DOPE) from bank employees as to what was contained on the missing signature card.

The balance in the JBA passes to the survivor when either of them dies UNLESS one of them destroyed the survivorship right by earlier withdrawing more than 50% while Depositor was still alive.

Will cannot revoke a JBA:

• all money passes by operation of banking law.

Bank is not liable for paying out 50% unless it has written instrucitons not to.

Question 5

To execute a valid will:

• NY requires strict adherence to the SWEPT procedures

Answer 5

To execute a valid will in NY, the will MUST be SWEPT:

• S: Must be SIGNED by an adult:
  
  • NY: recognizes oral wills (nuncupative) w/ 2 witnesses, and
  • Holographic wills (unwitnesses - written and signed entirely in T’s handwriting)
  • If executed by soldier in combat, or on eave of battle in enemy country:
    
    • Good for 1 year following discharge (if he becomes incompetent = effective)
• W: In WRITING:
• E: Signed at the END by T:
  
  • If T signs in presence of both Ws: exact order for signing does not have to be followed.
  • Any of T’s signature below than is disregarded by surrogate. (even if witnessed)
  • 3P can sign for T ​At T’s direction & in T’s presence:
  • Must be 4 signatures on the will:
    
    • ​1) 3P signature
    • 2) T’s: signed by 3P
    • 3) 2 W’s signatures
• P: PUBLISH:
  
  • T (or T’s L) must declare that it is T’s will to the 2 Ws.
    
    • Must be clear it is T’s will
• T: @ least TWO uninterested witnesses:
  
  • T must sign either:
    
    • ​1) In presence of W’s, or
    • 2) Alone, IF he later shows and acknowledges his signature to W’s/
  • ​W’s MUST sign w/in 30 days of each other:
    
    • EPTL: Rebuttable presumption that 30 day period WAS met.
  • Interested W’s:
    
    • If W is Beneficiary named in T’s will = still valid: but W forfeits bequest:
    • UNLESS: there are @ least 2 other uninterested W’s
      
      • Or, W would also inherit under intestacy
        
        • W gets lesser of devise in will or intestate share
  • Necessary W is NOT disqualified from:
    
    • Taking under subsequent codicil
    • Acting as Trustee of testamentary trust, or as executor of T’s will
      
      • b/c compensation is provided - not a bequest

Any amendment to the will made after its execution = invalid.

IF T names the drafting L as executor (or his agent):

• T must acknowledge in SEPARATE doc, SIGNED by T & 1 disinterested W that:
  
  • 1) T as aware anyone could be executor, AND
  • 2) T understands that L may receive two commissions. (Executor and L fees)
    
    • NO doc = Surrogate reduces executor’s fees by 50%

Question 6

Incorporation by Reference:

• NY:
  
  • Can terms in a codicil incorporate into a will?
  • Can a codicil revoke or revive a will?

Answer 6

NY will NOT incorporate an UNattested document into a validly executed will.

• NY will incorporate terms of an existing intervivos trust IF:
  
  • Was executed Prior to or Contemporaneously with will: AND
  • Signed w/ acknowledgment required to record a deed at the time will was executed.

**Codicil MAY NOT revoke a will! **

A properly executed codicil MAY revive:

• an existing earlier will that had been
• expressly or impliedly revoked by a subsequent will.

Codicil can NEVER revive or republish:

• defectively executed will (only 1 witness, not 2)

Question 7

Revoking a Will:

• 2 ways:

Answer 7

Revoking a Will:

• 1) In a subsequent will (expressly or impliedly):
  
  • Impliedly: 2nd willis so inconsistne surrogate will NOT probate 2nd will.
• 2) By T, w/out W’s: destorying ENTIRE Will by:
  
  • tearing, burning, cutting, cancelling (crossing out signature), or obliterating.
    
    • NO partial revocation of paragraph or clause by physical act.
  • 3P can physically destroy T’s will IF:
    
    • In T’s presence at T’s direction.
    • MUST be 2 additional W’s who heard direction and saw destruction.

NY: No Revival Doctrine:

• Revoking a will does NOT revive a previous will!
• T will die intestate if no new will is executed before death.

Question 8

How to Alter a WIll: (3)

• DAM CAR LAW

Answer 8

A will can be ALTERED by:

• 1) Subsequent codicil or will;
• 2) Subsequent event in T’s life after will’s execution; or
  
  • Ex: Divorce, marriage, or after-born children (DAM CAR LAW).
• 3) Signed document that uses PRECISE language:
  
  • “wholly inconsistent” with the terms of the existing will, AND
  • T’s signature on doc must be acknowledged in same manner required to record a deed
    
    • (e.g., separation agreement or prenup). NYLO 672-673

Question 9

Lost Wills:

• NY: Felony:
• EPTL: Presumption of destruction:
• To Rebut the Presumption:

Answer 9

Lost Wills:

• NY: Felony to unlawfully conceal or destroy a will or a codicil with intent to defraud.
• EPTL: T’s will was last known to be in T’s possession but cannot be found after death:
  
  • Strong Presumption Arises that: T destroyed it
  • UNLESS:
    
    • ​Its absence can be explained by Clear & Convincing evidence:

​​To rebut Presumption and admit lost will to probate, Must show:

• 1) Will was duly SWEPT, (i.e. habit evidence from L’s firm)
• 2) Prob not destroyed by T, AND
• 3) Establish contents of lost will by:
  
  • 1) Testimony of 2 people who read the will (usually not the 2 W’s) AND
  • 2) An unexecuted copy of the missing will.

Question 10

Foreign Wills:

• Valid Holographic Will executed outside NY:
  
  • Valid and admissible to probate in NY if SWEDEN

Answer 10

A Will is valid and admissible to probate in NY if SWEDEN:

• S: SIGNED by T
• W: In WRITING: AND

Will was properly executed in accordance w/ laws of EDEN: (disjunctive)

• **E: State where it was EXECUTED: **
• **D: T’s DOMICILE at death: **
• E: T’s domicile when he EXECUTED the will: OR
• **N: Laws of NY **(SWEPT)

Question 11

A Will’s contest can TIE up an estate:

• Def & Burden of proof for each

Answer 11

A will’s validity can be contested by TIE:

• T: Lack of TESTAMENTARY capacity:
• I: Undue INFLUENCE or fraud: OR
• E: Improper EXECUTION: where will was defectively SWEPT

Burdens of proof:

• Opponent = must prove Undue Influence
• Proponent = must prove Capacity & will’s valid execution

Lack of Capacity: (Less than req’d for Contract)

• Sound Mind: At time Will was executed ONLY: (not before or after)
  
  • T must be of age, or of sufficient state of mind to execute a will:
  • T understands extent of estate and knows natural objects of his bounty.
    
    • Cannot be prompted or have memory refreshed.

Undue Influence:

• Misuse of trust and confidence involving:
  
  • Psychological persuasion exerted on T to be named as beneficiary in T’s will:
• Prima Facie case IF:
  
  • Beneficiary participated in execution or prep of T’s will.
• Once inference is raised: B must rebut (burst the bubble), or
  
  • Surrogate may infer undue Influence.
• L shall NOT: (MPRE)
  
  • Solicit gift from C, OR
  • Prep instrument for C giving L or L’s relative any gift,
    
    • UNLESS: L is related to C, AND
      
      • reasonable L would conclude transaction was fair & reasonable
• NY CT of Appeals:
  
  • Absent family relationship:
  • Bequest to drafting L:
    
    • gives rise to inference “or perhaps presumption” of undue influence.

Question 12

Events During T’s Life Effecting an Executed Will:

• MAD CAR LAW

Answer 12

Once a will or codicil has been validly exectued, the following subsequent events may effect distribution under T’s will: MAD CAR LAW

• M: MARRIAGE of the T: (WILL BE ON BAR!)
  
  • Legal surviving Spouse (SS) CAN’T be disinherited:
  • SS guaranteed up to $92,500 of exempt family prop;
  • PLUS greater of either:
    
    • $50K if T’s net estate is $150K or less, OR
    • 1/3 of T’s net estate:
  • Net estate = T’s prop anywhere:
    
    • Minus: exempt family prop passing to SS, debts, & admin expenses.
  • Net Intestate Estate: Includes all nonprobate assets passing to anyone
    • If jointly owned w/ SS = only 50% of asset is brought back
• A: AFTER-Born-Child (including adopted, or non-marital):
  
  • If when Will was executed: (Unless ABC is provided for)
    
    • 1) T had no kids (or wife pregnant) = ABD gets intestate share
    • 2) T had kids and provided for them = ABC shares equally w/ siblings
      
      • Each sib gives proportionate to their % of inheritence
    • 3) T had kids not provided for in will = ABC won’t share in probate estate
• D: DIVORCE, annulment, dissolution, or a separation judgment:
  
  • automatically voids and revokes T’s former spouse named on a TRIP JAW document.
  • Treats former spouse as immediately predeceasing the testator:
  • WARNING: If after DADS decree, T executes a codicil to his will:
    
    • THEN: Will is Republished: reviving bequests in the will to the former spouse.

Question 13

Calculating SS’s Net Elective Share

Answer 13

Calculating SS’s Net Elective Share:

• S can waive right of election: (signed writing, sufficient to record deed)
  
  • BRAAG IT JP

Net Elective Share =

• ​Net Probate estate
• • nonprobate
• • (SS’s 1/3 share - anything passing to SS)

Question 14

No Contest Clause: (Interrorem Clause)

• Not breached by I FAACED SIR:

Answer 14

• I INFANT can always object to will
• F: Litigating to estaboish FORGERY (only if based on probable cause)
• A: Demanding ACCOUNTING or questioning the conduct of fiduciary
• A: NY ATTORNEY general can always challenge validy of will:
  
  • on behalf of charities effected by that will
• C: Petition Surrogate’s CONSTRUCTION of clause to determine T’s intent:
  
  • concerning revocation, execution, & preparation of T’s will
  • UNLESS: the conversations would disgrace T’s memory.
• E: SS exercising right of ELECTION
• D: Pre-Trial DISCOVERY: Prior to filing TIE objection:
  
  • NCC can’t prohibit pre-trial discovery of proponent, L, executor, or relevant W’s,
  • CPLR: Drafting L MUST testify as to REP:
    
    • But NOT conf conversations that would disgrace T’s memory.
      
      • R: Revocation
      • E: Execution, or
      • Preparation
• S: Objecting to SUBJECT Matter Jurisdiction of Surrogate’s CT:
• I: Mentally INCAPACITATED person: Can always contest a will
  
  • For whom a guardian has been appointed
• R: Will was REVOKED by a later will:
  
  • ​If based on probable cause