Wills - VALID EXECUTION OF WILLS Flashcards
Requirements of a DULY EXECUTED WILL
7-point test
(1) Must be 18 years old
(2) SIGNED BY THE TESTATOR (or by another person at the testator’s direction and in her presence)
- - note: when testator’s name is signed by another person, the proxy:
(a) must also sign her name;
(b) cannot be counted as an attesting witness; and
(c) must affix her address (BUT failure to affix does not invalidate the Will)
(3) “AT THE END THEREOF” - testator’s signature must be “at the end thereof”
(4) IN PRESENCE OF WITNESSES - Testator must sign the will OR Acknowledge his earlier signature in the presence of each witness;
(5) PUBLISH - Testator must PUBLISH THE WILL - Publication requires the testator to communicate to the witnesses that they are witnessing a WILL (and not some other legal document), by declaring the document to be her “Last Will and Testament”
(6) WITNESSES - there must be AT LEAST 2 attesting witnesses
- – (a) unlike most states, NY does NOT require that the witnesses sign in each other’s presence OR in the testator’s presence
- – (b) Attesting witnesses must attest to the testator’s signature when the testator signed the WIll (or acknowledged his signature). If the testator forgot to sign when the witness signed, and added his signature in the witnesses’ presence later, the Will is denied probate
(7) 30 DAY WINDOW - the execution ceremony must be completed in 30 days
Codicil
A CODICIL is a later amendment or suplement to a will, executed with the same (7 pt test) formalities as a will
What happens if the testator signs his Will in the middle of the page, then the 2 witnesses’ signatures follow? is will admissible to probate when it was not signed “at the end thereof?”
RULE: yes, still admissible to probate but the words following the signature are NOT GIVEN EFFECT!
e. g. Travis signed his will in the middle of the last page. Immediately following his signature, he bequethed his house in the Hamptons to his grandson Gary. Then the two witnesses’ signature followed
- will is admitted to probate but the hamptons house could not go to Gary bc that followed travis’s signature
EXCEPTION: an ENTIRE will is declared invalid if the matter following the signature is so material that giving effect to that above the signature and not giving effect to that below the signature would defeat the testator’s intention.
Will Formalities Hypo
Tom took his handwritten Will to his friend WES one year before his death. He said: “This is my will; please sign it.” WES signed the will as a witness, and THEN TOM signed it. BEcause Tom had Parkinson’s disease, WES held and guided Tom’s hand as he signed; his signature is almost illegible. Two weeks later, TOM took the will to his neighbor WALLY and said: “This is my will with my signature; please sign it.” TOM proffered the will to WALLY with his signature sowing; WALLY signed on the second witness line. Tom died and WES predeceased him
is it a problem that?
(1) WES signed the will before TOM?
- - no, exact order is not critical as long as ceremony is contemporaneous
(2) WES held and guided TOM’s hand when he signed
- -no problem, Tom’s act was voluntary, and this counts as valid signature
(3) Tom’s signature is barely legible
- - not a problem - any mark intended as Tom’s signature is OK! even an “X” is sufficient
(4) Tom did not sign the will in wally’s presence
- - no problem bc he ACKNOWLEDGED his earlier signature in Wally’s presence
(5) We and Wally did not sign in each other’s presence
NOT A PROBLEM - no requirement in NY that witnesses sign in each other’s presence
(6) Wally signed 14 days after WES -
not a problem - 30 DAY RULE is satisfied
(7) WES PREDECEASED TOM?
no problem, 7 pt test satisfied, no requirement that witnesses outlive testator
BURDEN OF PROOF for DUE EXECUTION
Will Proponent, (ie person who offers will for probate - usually the executor) has the BURDEN of proving DUE EXECUTION
(small points - dont worry too much)
(i) IF ONE WITNESS IS NOT AVAILABLE TO TESTIFY: the testimony of one witness suffices if the other witness is dead, absent from the state, incompetent or cannot with due diligence be found.
(ii) IF NONE OF THE WITNESSES ARE ABLE TO TESTIFY: The Will proponent must prove the signature of both the testator and one witness
(iii) IF THE WILL IS NOT SELF-PROVED: Both attesting witnesses must testify as to the facts necessary to show due execution
Attestation Clause
proof of due execution
An ATTESTATION CLAUSE appears below the testator’s signature line and above the witnesses’ signature lines, and recites all the elements of due execution
The clause is PRIMA FACIE EVIDENCE for probate where death, disability, or inability to find the witnesses prevents their testifying.
it is NOT a substitute for LIVE TESTIMONY - An attestation clause is merely corroborative of the witnesses’ testimony. A Will proponent must stil call the witnesses to testigy or prove their signatures
REASONS FOR HAVING AN ATTESTATION CLAUSE:
(i) if the witness has a bad memory - “probate of a will does not turn on the memory of attesting witnesses.”
(ii) If the witness is hostile - if the witness recalls signing a power of atty or some other document, the attestation clause can be used to rebut the witness’ evidence.
e. g. - “on the above date, the testator declared to use that the foregoing instrument was her Will and she asked us to serve as witnesses thereto. She then signed the will in our presence, we being present at the same time. We then signed the will as attesting witnesses.”
Self-Proving Affidavit
proof of due execution
a SELF-PROVING AFFIDAVIT is attached to the back of the will, and is a mechanism set forth by the legislature which recognizes the validity of most wills is not contested
Witnesses sign a SWORN STATEMENT in the presence of an attorney that recites all of the statements they would make if called to testify in court (essentially that the 7-pt test was satisfied)
SUBSTITUTE FOR LIVE TESTIMONY: Unlike an attestation clause, a self-proving affidavit is a substitute for the live testimony of the witnesses. It serves the same function as a deposition or an interrogatory (i.e. it is a sworn statement)
PROCEDURE
(i) the affidavit can be signed at any time after the Will is executed, but is USUALLY signed at the same time as the will
(ii) the WILL is admissible to probate on the strength of the sworn recitals in the affidavit UNLESS an INTERESTED PARTY OBJECTS, in which case the formal rules of proof of due execution apply
“interested party” = an intestate distributee or Will beneficiary (current or prior) who is adversely affected by the admission of the will to probate
Note: the Attestation Clause and the Affidavit ARE NOT legally required in any state.
INTERESTED WITNESS STATUTE
RULE: The validity of a will is NOT affected if a will beneficiary is also an attesting witness, BUT the BEQUEST TO THE WITNESS is VOID UNLESS
(i) SUPERNUMERARY RULE - there were at least 3 witnesses and 2 were disinterested (aka you didn’t need this interested witness signature to make it valid)
(ii) the interested witness, the will beneficiary, would be an intestate distributee if the testator died without a will, in which case a “WHICHEVER IS LEAST” rule applies: the witness-beneficiary takes the lesser of
(a) the BEQUEST under the will; OR
(b) his INTESTATE SHARE
purpose of statute - is to avoid fraud (e.g. clever beneficiary could purposely attest/witness thinking it will invalidate the will and he can get his bigger intestacy share)
e. g. Terry’s will provided: $50k to my brother Billy and my residuary estate to my sister Sasha.” Will was signed by Terry and witnessed by Billy and his friend Ferris. Terry was survived by his brother Billy and sister Sasha as his only living relatives. His estate is valued at $200k
- - Bily’s sig was needed, so he takes the lesser of what he would take in intestacy or the bequest
- -under intestacy he would take 1/2 (or $100k) but the will only gives him $50k, so he takes the $50k under the will
e.g. 2 - if instead will left billy $150k and residuary to Sasha, Billy would take $100k under intestacy instead
key pt: THE WILL IS STILL VALID
note also: if Witness is interested and NOT an intestate distributee, he just loses the bequest under the will but rest of will is still valid
note: if a will provision falls into intestacy bc there is no residuary clause, it is still considered “under the will” for purposes of this statute
Having an attesting witness as EXECUTOR does not trigger the “interested witness” statute
Foreign Wills Act
what wills can you admit to probate in NY (ie when will NY recognize a “foreign” will)
END
Rule: A will is admissible to probate in NEW YORK if it was validly executed under
(i) the law of the state where the will was EXECUTED, regardless of the testator’s domicile at that time; OR
(ii) NEW YORK LAW; OR
(iii) The law of the state where the testator was DOMICILED, wither when the will was executed or at death
Note: these rules apply only to determine whether the will is admissible to probate in NY. Once the will is admitted to probate, NY LAW GOVERNS construction and application of its provisions
Holographic Wills
a HOLOGRAPHIC will is a will that is entirely in testator’s handwriting that is signed, BUT NOT WITNESSED
This is VOID in NY***
EXCEPTION: valid for members of the armed forces during declared or undeclared war (but void one year after discharge) and mariners at sea (but void three years after discharge)
Note on Foreign Wills Act: Can be admitted to probate under foreign wills act if this type of will was allowed in other state.
Noncupative Will
a NONCUPATIVE WILL is an ORAL will (eg. DVD or youtube)
VOID in NY
EXCEPTION (same as for holographic) - valid for members of the armed forces during declared or undeclared war (but void one year after discharge) and mariners at sea (but void three years after discharge)
Note on Foreign Wills Act: Can be admitted to probate under foreign wills act if this type of will was allowed in other state.
LAWYER MALPRACTICE in WILL EXECUTION: A client intends to name certain beneficiaries in her will. Due to lawyer malpractice, the will is not duly executed. Do the beneficiaries have a COA against the lawyer for malpractice?
NO
There is no privity between will beneficiaries and the lawyer preparing the will.
What is the recent NY COURT OF APPEALS ruling regarding LAWYER MALPRACTICE for wills?
Facts of case: Decedent was advised to include life insurance policies initially payable out of the estate, and told to make them payable TO the estate. Client did this bc he was told by his lawyer that this would decrease his estate tax liability, instead it increased his estate tax liability substantially.
Court Ruling: No privity to 3rd parties, but there IS privity between the executor and the estate-planning lawyer who screwed up, so beneficiaries CANNOT SUE, BUT THE EXECUTOR can go after lawyer for increasing the estate’s tax liability
Rule: Although there is no privity between a lawyer and third party beneficiaries of a will, there IS privity between the personal representative of the estate and the estate planning lawyer.
