Lecture 37 - Wills

Front 1

What are Gifts Causa Mortis (GCMs) and how do they differ from regular gifts?

Back 1

The same AID elements are required for a GCM., but such gifts are conditional gifts made in apprehension of impending death. The donee's interest is a mere expectation., which does not vest until the donor dies from the contemplated peril or disease.

Front 2

Can there be GCMs of real property?

Back 2

There can be no GCMs of real property because such gifts do not satisfy the law of wills. SWEPT.

Front 3

How is a GCM revoked?

Back 3

A GCM is revoked by
1. the donor at any time before he dies
1. if the donee predeceases the donor or
2. if the donor recovers or his death is not caused by the contemplated peril (dies from another cause).

Front 4

What is a Totten Trusts (TT)?

Back 4

A TT is a bank account in the depositor's name "in trust" for another named person on the account, but that person has no interest in the account until the depositor dies.

Front 5

Who do the funds in the bank of a TT belong to?

Back 5

The funds in the account belong entirely to the depositor until her death.

Front 6

In a TT when may a bank account be depleted?

Back 6

The bank account may be depleted, the beneficiary changed, or the account closed by the donor at any time.

Front 7

Under a TT how are stock brokerage accounts held?

Back 7

Stock brokerage accounts can now be held in the owner's name followed by the phrase, "pay on death" or "transfer on death" to a named beneficiary. These accounts are treated exactly like TTs.

Front 8

When a depositor dies, up to $10,000 in a Totten Trust can be paid to an infant beneficiary’s parents without an appointment of a guardian for the money. What happens if the funds exceed $10,000?

Back 8

If the funds exceed $10,000, then the bank can only pay those funds to duly appointed guardian of the infant.

Front 9

There are 3 ways a depositor can revoke a TT, what are the 3 ways?

Back 9

1. withdrawal all the funds
2. changing the name of the beneficiary at the bank in a signed writing acknowledged like a deed by a notary. Simply changing the name on the bank book by the depositor and the initialing the change is not sufficient because the change must be made on the bank records.
3. by specific language in the depositor's will specifically stating
(a) the account is in trust
(b) the name of the beneficiary and
(c) the name of the financial institution.

Front 10

When is a TT extinguished?

Back 10

A TT is also extinguished where the beneficiary predeceases the testator.

Front 11

What are Joint Bank Accounts (JBAs)?

Back 11

JBAs and joint stock brokerage accounts ("title is held to A or to B or the survivor") raise a rebutable presumption that the depositor intended an immediate AID gift of 50% of each deposit into the account and that any balance in the account pass to the survivor when either dies (a moiety). Thus, the survivor takes whatever is remaining in the account, unless earlier she destroyed the survivorship right by withdrawing more than her 50% interest in the account while the decedent was still alive.

Front 12

When can a presumption of a JBA be rebutted?

Back 12

The presumption of a JBA can be rebutted by clear and convincing evidence that the depositor established the account merely for her convenience.

Front 13

What does a will due to a TT and a JBA?

Back 13

A will can revoke a TT if it does so with specificity, but a will cannot revoke a JBA because all money in that account passes to the survivor by operation of the banking law.

Front 14

Is a bank liable for paying interest on a JBA bank account?

Back 14

A bank is not liable for paying out more than 50% interest to either a JBA on the bank account, unless the bank has received written instruction not to do so.

Front 15

What happens when a decedent dies without a will or part of his probate property is not distributed?

Back 15

When a decedent dies without a will or part of his probate property is not distributed under T’s will because one or more lapsed, then the law of intestacy attempts to distribute T’s property to those people she probably would have chosen if she executed a valid will.

Front 16

What is a testator?

Back 16

A testator who makes a will is presumed not to have intended intestacy and all provisions in T's will be construed to avoid intestacy.

Front 17

What happens if a will was never executed?

Back 17

If a will was never executed or it was not properly executed (SWEPT), then T's estate will pass under the law of intestacy. If the unSWEPT will was attempting to revoke a prior will, then the courts will look to the prior will to distribute T's estate.

Front 18

What is a joint will?

Back 18

A joint will is one instrument signed by 2 people and mutual wills are 2 separate wills without reciprocal contractual provisions in which the will contains a clear statement that it is intended as a contract between 2 parties, which contract can’t be revoked after on of them dies.

Front 19

When may a party revoke the will?

Back 19

Either party may revoke the will when both are alive, but once a party dies, the will’s contractual event must be carried out and it cannot be revoked or altered by the survivor. However, the survivor is allowed to sell inherited property to meet bona fide daily needs, but if survivor attempts to deplete the estate by making inter vivos gifts to third parties or exercising a new will, then the TPBs to original joint can assert a claim of a constructive trust (T-CUP) to enforce the will’s intent.

Front 20

What does a residuary clause inserted in T’s will indicate?

Back 20

A residuary clause inserted in T's will indicates T's strong intent that T's property not pass under the rules of intestacy. Thus, where the residuary is left to 2 or more ("my friends X and Y"), but Y predeceased the testator, then Y's share will not pass into intestacy, but passes to the other co-residuary, X.

Front 21

To be valid, a will must be SWEPT. What is SWEPT?

Back 21

S – signed by an adult testator
W – in writing
E – signed at the end by the testator
P – published
T – two witnesses (who don’t have to be adults) must sign within 30 days of each other in the testator’s presence

Front 22

What does NY require with SWEPT?

Back 22

NY requires strict adherence to the SWEPT procedures, but NY recognizes foxhole wills.

Front 23

Does NY recognize nun cupative wills and/or holographic wills?

Back 23

The will must be written and signed by an adult, but NY recognizes nun cupative wills (oral wills with 2 witnesses) and holographic wills, which are unwitnessed, but written and signed entirely in the testator's handwriting. If executed by a member of the armed forces or someone accompanying the armed forces in combat in an enemy county or on the eve of embarking to a war zone, it is good for one year following discharge from the service.

Front 24

If T has become incompetent to execute a new will, when the one year s/l expires, what will happen?

Back 24

then the old handwritten will remains indefinitely in effect until T regains competency and can execute a new will.

Front 25

Where must T sign on the will?

Back 25

T must sign the will at the very "end". Any provision appearing under T's signature (other than the witness's signatures) will be disregarded by the surrogate even though it was there when the will was signed.

Front 26

Where should an amendment be added?

Back 26

Likewise, any amendment to the will made after its execution is invalid whether inserted above or below the signature.

Front 27

A 3rd person can sign for T, but it must be at T's direction and in T's presence and there must be 4 signatures on the will. What are they?

Back 27

1. the 3rd person's signature
2. the testator's signed by the 3rd person and
3. and 4. the 2 SWEPT witness's signatures. At least 2 witnesses (who do not have to be adults) must sign the will either separately or together, but each must sign in front of the testator.

Front 28

What happens in the case of an attestation clause or absence of 2 witness’ addresses?

Back 28

The absence of an attestation clause or the absence of the 2 witness’ addresses does not invalidate the will. However, the existence of an attestation clause in the will gives rise to a rebuttable presumption of SWEPT compliance (due execution of the will) allowing the proponent of the will to move for summary judgment that the will was properly executed. Thus, shifting the burden of production to the party alleging improper execution to raise a genuine dispute of a material fact on this issue. Likewise, when an attorney oversees a will’s execution, there also arises a presumption of due execution.

Front 29

T may sign the will in which 2 instances?

Back 29

1. in the presence of the 2 witnesses or
2. alone, but he must later show and acknowledge his signature to the 2 witnesses, but they do not have to see T sign the will.

Front 30

What must happen if the witnesses do not sign together?

Back 30

If the witnesses do not sign together, then to reduce the possibility of fraud, they must sign within 30 days of each other, but the EPTL creates a rebutable presumption that the 30 day period was met.

Front 31

What must the testator do?

Back 31

The testator must "publish" the will (i.e. T or her attorney must declare it is T's will).

Front 32

When does the exact order for signing not need to be followed?

Back 32

When T signs in the presence of both witnesses, the exact order for signing doesn’t have to be followed. Thus, the witnesses may sign 1st, and then the testator.

Front 33

If a beneficiary named in T's will is also a "necessary will witness", then the will is still valid, but the witness forfeits the bequest. But there’s a what? Explain.

Back 33

However, if AT THE TIME OF ITS EXECUTION, there were at least 2 other disinterested witnesses who received nothing under the will, then the supernumerary (the extra witness) witness will not forfeit her bequest because her testimony is not quite "necessary" to establish the will.

Front 34

What happens to the bequest if 2 of 3 witnesses or all 3 were interested?

Back 34

If 2 of the 3 witnesses or all 3 witnesses were interested, then all will forfeit their bequest because at the time of the will's execution, it was not witnessed by 2 people who received nothing under the will.

Front 35

If the necessary interested witness is also an intestate distributee (a relative who would benefit if there was no will), then what is the witness permitted to do?

Back 35

The witness is permitted to take the bequest in the will or her intestate share, whichever amount is less.

Front 36

Example: T's Will:
1. 60% to S, son.
2. 40% to F, a friend.
3. The residuary, to C, charity.
S and F witnessed T's will. Who gets T’s estate?

Back 36

A necessary will witness is not disqualified from
1. taking under a subsequent codicil, naming her as a beneficiary provided she was not a necessary witness to the codicil. or
2. acting as the trustee of a testamentary trust or as the executor who was named in T's will since these appointments provide compensation for services and are not testamentary bequests.
If the attorney who drafted T's will is named as the executor of T's estate or the will names another attorney or employee in the attorney's firm, then the testator must acknowledge in a SEPARATE DOCUMENT signed by T and signed by a disinterested witness that T was aware that anyone could be the executor and that by naming T's attorney, that attorney may receive 2 commissions (executor's fees and attorney's fees). Failure to obtain this document requires the surrogate to reduce the executor's fees by 50%.

Front 37

How does NY consider an incorporation by reference?

Back 37

NY (minority view) does not recognize incorporation by reference into a will. Thus, an unattested document does not become part of the will even though the will specifically referred to it.
Example: "I leave the contents of my house to those people listed on the yellow sheet in my safe deposit box." NY will not incorporate the yellow sheet into the will. One NY exception allows incorporation by reference for charitable bequests.

Front 38

A will can incorporate the terms of an existing inter vivos trust executed prior to or contemporaneously with the will. What is this called?

Back 38

This is called a pour over provision, but the trust instrument must be signed and the signature acknowledged at the time the will was executed in a manner required to record a deed.

Front 39

How are trust terms amended after the will is executed in comparison to an amending done after T’s death?

Back 39

The trust terms can even be amended after the will was executed, but the terms of the trust at the moment T’s death will control T’s estate and not if the trustee amends the trust after T’s death.

Front 40

What does amending a Will by a Codicil do?

Back 40

A codicil edits or supplements a will and it republishes the will on the date the codicil was SWEPT. The EPTL (estate's power and trust law) specifically states that a codicil may not revoke a will.

Front 41

How are a will and its codicil regarded?

Back 41

A will and its codicil are regarded as a single instrument for the purpose of determining testamentary intent.

Front 42

A properly executed codicil may revive an existing earlier will that had been expressly or impliedly revoked by a subsequent will. However, a codicil can never do what?

Back 42

Revive or republish a defectively SWEPT will (e.g. only 1 witness) because in NY, there is no incorporation by reference into wills.

Front 43

The execution of a codicil may affect what three things?

Back 43

1. prior advancements
2. the rights of after born children or
3. a divorced surviving spouse because by executing a codicil, it republishes T's will as of the later date the codicil was SWEPT.

Front 44

A will can be revoked in what 2 ways?

Back 44

1. In a subsequent will either expressly or impliedly.
A revocation of a prior will by a later will impliedly revokes all codicils of the earlier will, but the revocation of the codicil does not revoke the will.
2. By the testator without any witnesses destroying the entire will by tearing, burning, cutting (Essay 5, February 2014), canceling, or obliterating.

Front 45

MBE admits oral or written out of court statements of memory or belief relating to the revocation, execution, or the terms of the testator’s will. How does NY differ?

Back 45

NY disagrees and holds that such hearsay statements have little credibility since the speaker may simply be attempting to resist pressure or to silence questions concerning the testamentary disposition of his property. Such statements are inadmissible in NY unless they were part of the res justi (the thing being done).

Front 46

A third person may physically destroy the testator’s will provided it is at T’s direction and in T’s presence and there are 2 additional witnesses who heard the direct and saw the discussion. How many people in total must be in the room?

Back 46

4 people must be in the room.

Front 47

Is a partial revocation allowed?

Back 47

There can be no partial revocation of a paragraph or a clause by physical act. Such alteration may only be done by a codicil or a second will.

Front 48

Problem: In March, T, a widower, with one son, S, made a will naming his 2 friends, X and Y to receive everything. In April, T met G and fell in love and in May, executed another will leaving everything to G. In June, T died and in T's safe was the May will with lines drawn through the signature. Who gets T's estate?

Back 48

Lines drawn through the signature is a sufficient physical act to revoke the entire will (canceling), but this did not revive the earlier will naming X and Y because NY does not follow the revival doctrine. Thus, T died without a will and his assets passed to S by intestacy.

Front 49

A will may be ALTERED in what 3 ways?

Back 49

1. a subsequent codicil or will
2. subsequent events in T's life such as T's marriage or divorce. DAMN CAR LAW. or
3. a signed document with T's signature acknowledged like a deed that uses precise language wholly inconsistent with the terms of the existing will.

Front 50

How do NY rule in concerns to unlawfully concealing or destroying a will or codicil?

Back 50

In NY, it is a felony to unlawfully conceal or destroy a will or codicil with the intent to defraud.

Front 51

How does a strong presumption arise under the EPTL in regards to an absent will or codicil?

Back 51

Under the EPTL, if T's will was last known to be in T's possession, but it cannot be found after T's death, then "a very strong presumption arises" that T destroyed it, unless its absence can be explained by clear and convincing evidence.

Front 52

To rebut the presumption and to admit a lost will to probate must show what three things?

Back 52

1. it was duly SWEPT
2. it probably was not destroyed by T (e.g. T’s house burned down) and
3. establish the contents of the lost will by
(a) the testimony of any 2 people who read the will (they usually are not the SWEPT witnesses) or
(b) an unexecuted copy of the will.

Front 53

What if the will offered for NY probate was a holographic will executed outside NY?

Back 53

A will is valid and admissible in NY if SWEDEN.

Front 54

What does SWEDEN stand for?

Back 54

S - signed by T
W - it is in writing and it is valid according to the laws of EDEN. (disjuntive)
E - where it was executed
D - T's domicile at death
E - T's domicile when he executed the will
N - the laws of NY (SWEPT).

Front 55

A will contest can TIE up an estate. The will's validity can be contested based on TIE, explain what TIE is an acronym for.

Back 55

T - lack of testamentary capacity
I - undue influence or fraud
E - improper execution where the will was defectively SWEPT

Front 56

What burdens do the opponent and proponent of the wills have?

Back 56

The opponent of the will has burden of proving undue influence, but the proponent of the will has the burden of proving T's capacity and the will's valid execution.

Front 57

Who has the standing to commence a TIE challenge to the will?

Back 57

Only an intestate distribute (who would benefit if there is no will) or a beneficiary under a prior will who was not adversely affected by the current will has standing to commence a TIE challenge to the will.

Front 58

At what age must T be in order to be considered of sound mind?

Back 58

T must be at least 18 years old and of sound mind so that without prompting, T knows the extent of his estate and T knows the natural objects of his bounty.

Front 59

The capacity required to execute a will is less capacity than to enter a contract. Testamentary capacity is concerned with what?

Back 59

T's mental condition at the moment the will was executed regardless of T's mind prior to or subsequent thereto.

Front 60

What is undue influence?

Back 60

Undue influence is unfair psychological persuasion exerted on T to be named as a beneficiary in T's will. It involves the misuse of a position of trust and confidence. A prima facie case of undue influence arises where a beneficiary named in the will participated in the preparation and/or execution of T's will.

Front 61

What happens if the beneficiary does not come forward after the inference is raised?

Back 61

Once the inference is raised, then if the beneficiary does not come forward to rebut the inference (to burst the bubble of the inference), then the surrogate may infer that undue influence existed.

Front 62

Absent a family relationship, a bequest to the attorney who drafted T’s will gives rise to an inference or perhaps a presumption of undue influence. What type of court will be held here?

Back 62

Here, a court will hold a Putnam hearing to see if the attorney can satisfactorily refute the presumption and “burst the bubble”.

Front 63

Under NY's model rules of professional conduct, a lawyer shall not do what 2 things?

Back 63

1. solicit any gift from a client or
2. prepare an instrument giving the lawyer or a lawyer's relative any gift unless the lawyer is related to the client and a reasonable attorney would conclude that the transaction was fair and reasonable.

Front 64

The NY Court of Appeals has held that absent a family relationship, what type of bequest arises?

Back 64

A bequest in a will to the attorney who drafted the will gives rise to an inference "or perhaps a presumption" of undue influence.

Front 65

Once a will or codicil has been validly executed (SWEPT), then the following subsequent events may affect distribution under T's will. DAMN CAR LAW. Explain what DAMN CAR LAW stands for?

Back 65

D - divorce.
A - after-born children (ABCs). (favorite area of bar)
M - marriage.
N - no contest clause (Interrorem Clauses)
C - Cy pres (as near as)
A - Advancements
R - renunciation
L - Lapsed Legacies
A - Ademption or abatement
W - Wrongfully Killing the Testator (aka the slayer rule)

Front 66

Explain in more detail what the D in DAMN CAR LAW stands for.

Back 66

D - divorce.
How does T's DADS judgment affect T's estate? If a judgment of divorce, annulment, dissolution, a separation judgment is granted, it automatically voids and revokes T's former spouse named on a TRIP JAW document. It treats the former spouse as immediately previously deceasing the testator.
If T executes a codicil to T's will after the DADS decree, then it reaffirms and republishes the old will as of the post-DADS date including the bequests to the former spouse.

Front 67

Explain in more detail what the first A in DAMN CAR LAW stands for.

Back 67

A - after-born children (ABCs).
ABCs include marital children, non-marital children, or adopted children.

Front 68

Under the first A from DAMN CAR LAW, if T's children are born or adopted after T executed the will, then the ABC may affect T's will in 1 of 3 ways, explain.

Back 68

1. If T had no children when T SWEPT the will (even if T or T's spouse was pregnant when it was SWEPT), then any ABC is entitled to intestate share of T's estate unless T provided for the ABC during T's lifetime.
2. If T had children living, but T had no provision for them in T's will, then an ABC is not entitled to share in T's probate estate. However, if T made an unhappy de minimus bequest to T’s only child, S (e.g. “10,000 pennies ($100) to S my son because he has disappointed me”) then the surrogate will apply rule #1 as if T as if T had no children when T SWEPT the will.
In NY, if T had children when T executed the will, those children may be completely disinherited or simply left out of the will by a parent.
3. If T had children, and provided for them in T's will, then any ABC will share ratably (proportionately) in the ABC sibling's total bequest unless T provided for the ABC during T's lifetime.

Front 69

Under the first A from DAMN CAR LAW, what is a non-marital child entitled to?

Back 69

A non-marital child is entitled to inherit by intestacy through a testamentary bequest to T's children under the anti-lapse statute as an ABC if born after her parent executed a will and she can benefit from a parent's wrongful death from
1. her birth mother and her mother's heirs OR
2. her biological father and parental heirs, but only if (a) there was a family court order of paternity, (b) the father filed a signed acknowledgment of paternity, (c) paternity is established by clear and convincing evidence, which may include, but is not limited to 1. a DNA test administered ANY TIME or 2. the father openly and notoriously acknowledged the child as his own.

Front 70

Under the first A from DAMN CAR LAW, are adopted or non-marital children treated exactly the same absent contrary language in an instrument?

Back 70

Absent contrary language in an instrument, adopted or non-marital children are treated exactly the same as marital children. Thus, whenever an instrument refers to "issue", "children", "grandchildren", "descendants", "heirs" or "distributees", it shall be construed to include adopted and non-marital children.

Front 71

Under the first A from DAMN CAR LAW, how is an adopted child considered?

Back 71

A child adopted out of a family by a stranger is no longer entitled to share in a class gift to her birth parents’ “issue”. She can’t inherit by intestacy from her birth parents. When a child is adopted, that child or the state can no longer look to the birth parents for child support and that child could not inherit from the wrongful death of her birth parents. However, where a step-parent (the spouse of the child’s biological parent) adopts the child or the child is adopted either by a biological grandparent or a descendant of the child’s grandparents (aunts or uncles), then that child is still entitled to inherit from the former birth parents and their heirs. Thus, if a child is adopted by a close family member or a step-parent, the legislature has chosen not to cut that child off from the anti-lapse statute or intestate inheritance between the adopted child and original birth family.

Front 72

Explain in more detail what the M in DAMN CAR LAW stands for.

Back 72

M - marriage.
Surviving Spouse's Right of Election (Probable testing on this summer.)
Under NY law, a homosexual or heterosexual surviving spouse of a NY domicile may not be completely disinherited. He or she is guaranteed up to $92,500 of exempt family property (pg. 4) plus either $50,000 (for T's net estate of $150,000 or less) or 1/3 of T's net estate, whichever amount is greater. The "net estate" consists of T's property located inside or outside NY minus exempt family property passing to the surviving spouse and less debts and administrative expenses. If the decedent died intestate leaving a surviving spouse and children, then the surviving spouse gets the first $50,000 plus ½ of the remainder on the children get the other ½.
However, if the decedent leaves no “issue”, then the surviving spouse gets 100% of the net estate.
A spouse may specifically waive her right of election. For example, in a prenuptial agreement, a nuptial agreement, or a separation agreement, but that signature must be acknowledged in the same manner required to record a deed. Otherwise, the waiver is unenforceable. The notary acknowledging the signature must either know the person signing the document or secure evidence that the person signing was the person described in the document.
For purposes of determining the value of the surviving spouse's elective share, the decedent's "net estate" or "net intestate" estate is increased by the value of any testamentary substitutes passing to anyone including those assets passing to the surviving spouse. BRA^2G IT, J.P.

Front 73

Under M from DAMN CAR LAW, BRA^2G IT, J.P. stands for what?

Back 73

B - US savings bonds jointly held with another, but only for the amount that T contributed in purchasing the bonds is brought back into T's estate.
R – a revocable lifetime trust over which the testator gained control to invade, amend or terminate.
R - 50% of the decedent's retirement plan including pension plans and IRAs. Under federal law, the other 50% passes to the surviving spouse.
A - shareholder agreements entered into after the marriage restricting the transfer of T's shares of stock held in a closely held corporation.
A - annuity contract payments continued to be paid after T's death
G - gifts causa mortis
I - inter vivos gifts exceeding $14,000 if made within 1 year prior to death
T - pre-marriage or post-marriage Totten Trust bank accounts
J - post-marriage jointly held
1. bank accounts (JBAs)
2. stock brokerage accounts
3. j/t or t/e or
4. personal property, BUT ONLY to the extent the consideration was furnished by the decedent.
Property jointly held with a surviving spouse creates a conclusive irrebutable presumption that 1/2 of the consideration was furnished by the decedent thus only 50% of that jointly owned asset between the spouses is brought back in to the estate.
P - pay on death stock brokerage accounts, which are treated just like Totten Trust bank accounts.
Life insurance policies on T's life are not testamentary substitutes.
To determine a surviving spouse's elective share, take the "net probate estate" and then add to it, all BRAG IT J.P testamentary substitutes including any passing to the surviving spouse. Then divide that total figure by 1/3 to get the surviving spouse's elective share. Then subtract the value of any testamentary substitute and any testate (by will) or intestate property passing to the surviving spouse. The resulting figure is the surviving spouse's "net elective share" to which the other beneficiaries of the estate and the beneficiaries of testamentary substitutes must contribute proportionately.

Front 74

Explain in more detail what the N in DAMN CAR LAW stands for.

Back 74

N - no contest clause (Interrorem Clauses)
A will's NCC expressly provides for forfeiture of the bequest if a beneficiary unsuccessfully contests (TIE) the validity of the will or any of its provisions. The purpose of an NCC is to discourage groundless TIE litigation.
An NCC is not breached by I FA^2CED SIR.