New York Bar Exam: Wills

Front 1

Definitions: What is intestate?

Back 1

Without a will

Front 2

Definitions: What is testate?

Back 2

With a will

Front 3

Definitions: What is an administration proceeding?

Back 3

A proceeding to appoint a personal representative, also known in NY as an administrator,to administer the estate of person who dies w/o a will.

Front 4

Definitions: What is a probate proceeding?

Back 4

A proceeding to administer the property of a person who dies w/ a will.

Front 5

Definitions: What are probate assets?

Back 5

Assets held in decedent's name alone that do not pass by operation of law and which the Executor administers in accordance w/ the decedent's will.

Front 6

Definitions: What does operation of law mean?

Back 6

Property that passes automatically b/c of the way the property's title is held. (Is not affected by the existence of a Will or intestacy).

Front 7

Definitions: What is issue?

Back 7

All persons who have descended from a common ancestor. "Issue" and "descendants" are synonymous and include those in direct line with the decedent, i.e., children, grandchildren, etc.

Front 8

Definitions: What are distributees?

Back 8

Those individuals who inherit property under intestate succession.

Front 9

Definitions: What are beneficiaries?

Back 9

Everbody who receives a bequest - sometimes called a legacy or devise - (for those who inherit real property) under a Will.

Front 10

Definitions: What is a residuary estate?

Back 10

The balance of the T's estate after all claims, taxes, and "particular" bequests have been distributed, the "rest" of the estate.

Front 11

Intestacy rules: Under A4 of EPTL when do the rules of intestacy apply?

Back 11

1. No Will: Decedent left no Will or didn't get around to signing it (or left a W that was not properly executed),

2. Not Complete: Will doesn't make a complete disposition of the estate (partial intestacy) typically due to the fact that there was poor drafting by the attorney, or

3. Invalid Changes: An intestate distributee successfully challenges the Will, and the W is denied probate.

Front 12

Intestacy rules: What is the order of distribution under intestacy?

Back 12

Distribution - Order of priority for appointment as administrator:
1. *surviving spouse*
2. *children*
3. grandchildren
4. father or mother
5. brothers or sisters
6. any other distributee

Front 13

Intestacy rules: What is the distribution if an intestate decedent is survived by spouse and no children?

Back 13

If the intestate decedent is survived by her spouse but not by any children or issue of children, the surviving spouse takes the whole estate.

Front 14

Intestacy rules: What is the distribution if an intestate decedent is survived by spouse and children?

Back 14

If the intestate decedent is survived by his spouse and one or more children of their issue, the surviving spouse takes 50k + 1/2 of the residuary, and the issue take the leftover residurary,
UNLESS
the estate happens to be less than 50k, then the whole estate goes to the surviving spouse.

Front 15

Intestacy rules: What is the distribution if an intestate decedent is survived by children only?

Back 15

If the intestate decedent is survived by children only (and all children are alive), the estate passes to the children in equal shares.

Front 16

Intestacy rules: What is the distribution if an intestate decedent is survived by children and issue of predeceased children?

Back 16

It passes to "alive" children, and the issue of the dead children by representation or per capita @ each generation. (Explain terms of art) Applying the rule:

Step 1. Make the initial division shares - one share for each line of issue (whether the people representing that line of issue are dead or alive) - at the first generational level at which there are survivors.

Step 2. All living persons at that generational level take one share each (ppl below that living person take nothing b/c of this)

Step 3. The shares of the deceased persons at the first generational level are combined and then divided equally among the takes at the next generational level in the same way.

Result: Persons in the same generation are always going to have equal shares.

NOTE: The spouse of a dead intestate distributee does not take, nor could that intestate distributee have conveyed his/her interest in the estate if he/she died before intestator.

Front 17

Intestacy rules: What is distribution in most states?

Back 17

Most states (and NY pre-1992) distribution is "per stirpes," under which the issue of a deceased child takes the share that her parent would have inherited if living. See chart page 6.

***NY RULE: Per Capita at Each Generation (PCEG) - "by representation" is controlling. Exception: A Will can ovverride and change the default distribution to "per stirpes."

Front 18

Intestacy rules: When will PCEG create a different distribution than Per Stirpes (PS)?

Back 18

PCEG creates a different distribution than PS only if more than one person at the 1st generational level died and all have issue. If only person 1 had died, distribution "by representation" or "per stirpes" would give you the same distribution.

Front 19

Intestacy rules: What's the distribution for intestate decedent not survived by spouse or issue?

Back 19

No spouse + no issue:
*1. All to parents or surviving parent
*2. If not survived by parents: Issue of parents (brothers, sisters, issue of deceased brothers and sisters), who take PCEG.
Note: Decedent's "relatives of the half blood" are treated as if they were relatives of the whole blood.

Front 20

Intestacy rules: When is a spouse disqualified under intestacy?

Back 20

Circumstances which disqualify a spouse from inheriting under intestacy:

DISMAL

DIVORCE: final decree of divorce or annulment valid under NY law.

INVALID divorce: Surviving spouse procured, outside of NY, divorce or annulment not recognized as valid under NY law (One way street) Surviving spouse not barred if deceased spouse procured invalid divorce or annulment.

SEPARATION decree: Rendered against surviving spouse. (Doesn't bar spouse if the final decree of separation was rendered against the deceased spouse.) Only applies to separation decrees, not separation agreements unless there is specific language in the agreement waiving one's rights under the EPTL.

MARRIAGE is void: as incestuous or bigamous.

ABANDONMENT or

LACK of support: surviving spouse abandoned or refused to support deceased spouse.

Hint 20

DISMAL

Front 21

Intestacy rules: How is the distribution handled when a spouse is disqualified?

Back 21

Assume that surviving spouse has predeceased and drop share down to kids or whoever is next in line as distributee.
Note: NY has no slayer statute per se (but usually constructive trust will be imposed).

Front 22

Intestacy rules: What are the inheritance rights of adopted children?

Back 22

1. Adopted children and their issue have full inheritance rights from adopting family.

2. child adopted by a new family has no inheritance rights from natural parents/members of the natural parents' family.

Exception to 2: Where a child is adopted by the spouse of a natural parent (Mom remarries and new H adopts child), the child and its issue can inherit from both adopting parent and either natural parent.

3. But if the child is adopted by a relative (e.g., and aunt or uncle), if the adopted child is related to the decedent by both a natural relationship and the adopted relationship, the child inherits under the natural relationship only, unless the decedent was the adopting parent, then the child inherits under the adoptive relationship only.

Front 23

Intestacy rules: Does a child (E son of D) adopted out to a new family take as a beneficiary of a class gift made in the Will of a member of the child's natural family (T - 'income to D for life, remainder to D's issue?

Back 23

No. A child adopted into a new family has no inheritance rights from the natural family.

Front 24

Intestacy rules: Does a child adopted out to another family member take as a beneficiary of a class gift made in the Will of a member of the child's natural family ?

Back 24

Yes.

Front 25

Intestacy rules: What are the inheritance rights nonmarital (out of wedlock) children?

Back 25

General Rule: Full inheritance rights from Mother and Mother's family

But: The child inherits from the natural father only if paternity is established by one of the following tests:

For Paternity during father's life:

(i) Legitimated by marriage: Father marries mother after child's birth, OR

(ii) Order of filiation in a paternity suit is entered during the father's lifetime, adjudicating the man to be the child's father, OR

(iii) Father files a witnessed, acknowledged (b/for notary) affidavit of paternity with the Putative Father Registry.

Front 26

Intestacy rules: What are the rules on lifetime gifts to intestate distributees?

Back 26

NY: NY has rejected the advancement presumption by statute. In NY, no advancement unless proved by

(i) A contemp writing made at time of gift, AND

(ii) signed by donor/donee

Front 27

Intestacy rules: What effect does the disclaiming of an intestate distributee's interest in the estate have?

What does a valid disclaimer require? (4)

Back 27

The person who disclaims is considered to have pre-deceased D or T.

A valid disclaimer requires:

1. Must be in writing, signed and acknowledged (b/f a notary) AND

2. Must be accompanied by a separate affidavit that no consideration was received and that no one paid you to disclaim (unless court authorizes receipt of consideration for the disclaimer) AND

3. Must be irrevocable (after disclaimer filed, can't change mind) AND

4. The disclaimer or renunciation mst be filed with the Surrogate's Court w/in 9mths after the date of death.

Front 28

Intestacy rules: Why would someone want to disclaim? For what reason can someone not disclaim? (2, 1)

Back 28

1. Avoid taxes

2. ***Avoid creditor's claim***

3. Exception: Can't disclaim if against public policy (avoid being ineligible for Medicare)

Front 29

Execution of Wills: What is probate?

Back 29

Probate refers to the Surrogate's Court proceeding in which:

1. It is judicially determined that the decedent dies w/ a validly executed Will and the intestate distributees are determined (to put them on notice of the existence of a Will) AND

2. A personal representative named in the Will, also known as an executor, is appointed by the court to administer the decedent's estate.

Front 30

Execution of Wills: What does a validly executed will require? (7)

Back 30

1. 18+

2. Must be signed by T, or someone at the T’s request in T’s presence Exception: When T can't sign Will herself, then when T's name is signed by another person (proxy signature), such person:

a. must also sign her name,
b. cannot be counted as one of the two needed attesting witnesses, and
c. shall affix her address (but failure to affix address does not invalidate will).

3. T’s signature at “the end thereof.”

4. T must sign the will OR acknowledge his earlier signature in the presence of each W.

5. T must “publish the will.” T must declare instrument to be last will and testament.

6. There must be at least 2 attesting Ws, AND

7. The execution ceremony must be completed in 30 days. 30 day period starts to run when 1st W signs, not when T signs.

Front 31

Execution of Wills: What is a codicil?

Back 31

Codicil a later amendment or supplement to a will executed w/ the same formalities (need 7 point test)

Front 32

Execution of Wills: With regard to Ws, what does NY NOT require? What is the key to NY rule?

Back 32

NY does NOT require that:

- Ws sign in each other's presence (other States require)

- Ws sign in the T's presence (other States require)

Key to the NY rule: T must sign or acknowledge her signature in the presence of the Ws.

Front 33

Execution of Wills: What would happen if T signed the Will in the middle of it?

Back 33

The will is admitted to probate, but the words following the signature are not given effect.

EXCEPTION:

An entire Will will be declared invalid but only if matter after signature is so material that to give effect would be to defeat T’s intention.

Front 34

Execution of Wills: On whom is the burden of proof as to due execution (7 points)?

Back 34

The burden of proof is on the Will proponent (the one offering the Will for probate, usually executor)

(i) If Will is not self-proved (see below) both attesting witnesses must testify as to the facts necessary to show due execution.

(ii) If one W dead, absent from state, incompetent or can't w/ due diligence be found, testimony of one W suffices.

(iii) If none of the Ws are able to testify, Will proponents must prove 2 signatures - the signature of T and one W.

Front 35

Execution of Wills: What is an attestation clause?

Back 35

It appears below T's signature line and above Ws' signature lines.

It recites all the elements of due execution.

Front 36

Execution of Wills: What's the proof value of an attestation clause? When is it useful?

Back 36

The clause is PF evidence of the facts presented (not legally req in any state). Useful:

(i) W w/ bad memory. Probate of a Will does not turn on memory of attesting witnesses.

(ii) Hostile W: if W hostile, Attestation Clause can be used to rebut this W.

Front 37

Execution of Wills: What is a self-proving affidavit (SPA)?

Back 37

W signs a sworn statement in the presence of an attorney, recites all the statements that they would make if they were called to testify in court. (7 point test fulfilled) Key: sworn affidavit.

Front 38

Execution of Wills: What are the characteristics of an SPA (3)

Back 38

1. The Affidavit, which can be signed at anytime after the Will is excecuted, is usually signed at the same time as the Will.

2. Substitute for live testimony: Different from attestation clause - which is merely corroborative of testimony, and you still have to call the Ws to testify or else prove their signatures - A SPA is a substitute for the live sworn testimony of the W.

3. Procedure: 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. You must then call the 2 attesting Ws to testify.

Front 39

Execution of Wills: What is an interested W statute?

Back 39

A bequest to an interested W is void unless:

1. Supernumerary. There were at least 3 Ws and at least 2 were disinterested. Therefore, the signature of the W-B is not needed to admit the Will to probate, OR

2. ***The interested W (will B) would be an intestate distributee if T died intestate. In which case a whichever is least rule applies – The W-B takes the lesser of:
a. The bequest under the will, or
b. His intestate share.

Note: The Will is still good, only the bequested to the interested W is affected.

Front 40

Execution of Wills: What is the foreign Wills Act?

Back 40

END: Executed, New York Law, or Domiciled

A Will is admissible to probate in NY if it was validly executed under:

1. Law of the state where it was Executed regardless of T's domicile at that time, OR

2. New York Law, OR

3. Law of the state where testator was Domiciled, either when the Will was executed or at death.

NOTE: These rules apply only to the question of 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.

Hint 40

END

Front 41

Execution of Wills: What are holographic and nuncapative wills? How do holographic wills interact w/ the Foreign Wills Act?

Back 41

1. Holographic will is a will that is entirely in T’s handwriting that is signed, but not witnessed.

2. Nuncupative will is an oral will (can be on DVD)

3. RULE: Both are void in NY.

Exception – members of the armed forces.

Trap: But, if handwritten, and witnessed by two Ws, OK. There is no requirement that a will be typewritten. But it does need to be W

Application with Foreign Wills Act on previous page: NJ recognizes holographic wills, person dies in NY, b/c under FWA we recognize wills that are validly executed in another state.

Front 42

Execution of Wills: If a Will is denied probate due to a lawyer's malpractice, do the intended Will Bs have a COA against that L?

Back 42

No. b/c there is no privity of K between Bs and lawyer. The duty is only to the (now dead) client who K’d for the lawyer’s services.

Front 43

Revocation of Wills: How may a will be revoked?

What is required to constitute physical revocation?

Back 43

Rule can be revoked in 2 ways

a. By a subsequent testamentary instrument, executed w/ appropriate formailities (7 pt) or

b. By physical act. (Destroying will by accident not revoking) need intent to revoke.

Note: Writing this will is void w/o touching any of the words on the will is not enough. But Cross out signature: Yes. b/c anything done to the signature shows an intent to revoke the will. Decisive act of revocation

Front 44

Revocation of Wills: What is revocation by implication?

Back 44

If 2nd will wholly inconsistent to 1st will, 1st will revoked by implication

Typical EXPRESS revocation language is "I hereby revoke all wills heretofore made by me."

Ex: 2 wills – If there is no revocation language in later will, to the extent possible, you read the 2 instruments together.

That 2nd will w/o language of revocation is treated as a codicil to the 1st will, and only revokes the 1st will to the extent that there are inconsistent provisions.

Front 45

Revocation of Wills: What does revocation by proxy require? (4)

Back 45

1. Rule: Must be at

a. T’s req

b. T’s presence

c. W’ed by at least 2 W of the act.

2. Need 4 people, T, revoker, 2 Ws

Front 46

Revocation of Wills: What are the presumptions regarding revocation of wills?

Back 46

1. If will last seen in T’s possession, and not seen after T’s death, T revoked the will by physical act.

2. Will last seen in T’s possession found mutilated, presumption that T was the one who revoked the will by physical act.

a. Neither presumption arises if will last seen in possession of someone adversely affected by its contents

b. Evidence admissible to rebut the 2 presumptions:

(1) Will left w/ atty - and atty can't find it.

(2) T told W that destruction accidental

Front 47

Revocation of Wills: What are the only 2 ways T can make changes in her Will?

What about words added after due execution of the will and partial revocation by physical act?

Back 47

1. Rule:

a. Write a new will which revokes the 1st will or

b. Make a codicil or amendment to 1st will which changes only parts of the will

2. Note: both need to be executed w/ all 7 point formalities (need Ws)

3. ***NY BAR: Key things tested

a. Words added to will after signed and witnessed are discarded

b. Partial revocation by physical act is not recognized in NY.

Front 48

Revocation of Wills: What is the rule of no revival of revoked wills?

Back 48

1. Rule: If a person executes a will that is then revoked by a later will containing a revocation clause, i.e., "I hereby revoke all WIlls heretofore made by me..." the first Will cannot be 'revived' simply by destroying the later Will. Will can only be revived in one of 2 ways:

a. Re-executed: Signed again by T and 2 Ws.

b. Doctrine of republication by codicil: T validly executes a codicil to 1st will making changes. In NY, ‘no revival’ rule also applies to codicils.

2. Always need a validly executed document to make a change.

Front 49

Revocation of Wills: What is the CL doctrine of Dependent Relative Revocation?

Back 49

DRR is a common law doctrine which permits a revocation to be disregarded when premised upon, conditioned upon, or dependent upon a mistake of law as to the validity of another disposition.

DRR applied by one Appellate Div case, but never by Ct of App. If get it, argue both ways (this and no revival) DRR sometimes called the 2nd best solution doctrine (Best solution - giving effect to T's intent by reviving, is not possible under NY law)

Front 50

Revocation of Wills: What's the proof of lost wills statute? What 3 things must be proven?

Back 50

Proof of lost wills Statute.
a. Due execution must be proved as in any case. 7 pt test
b. Revocation: Must be established that the will was not revoked
(1) Overcome presumption of revocation that arises from Will’s non-production, or
(2) Prove that revocation should be disregarded.
c. Will Provisions: All provisions of the will must be clearly and distinctly proved by each of at least 2 credible witnesses or by a copy or draft of the Will proved to be true and complete.

Front 51

Death of Beneficiary During T's Life: Lapse in Residuary Gift: What's the "surviving beneficiaries" rule?

Back 51

If T's residuary estate is:
1) Devised to 2 or more persons, and
2) The gift to one of them fails or lapses for any reason, and
3) The anti-lapse statute does not apply, then
the other residuary Bs take the entire residuary estate in proportion to their interests in the residue, absent a contrary provision in the will.

Front 52

Death of Beneficiary During T's Life: Class gift rule?

Back 52

A rule of construction based on presumed intent.

If a Will makes a gift to a group of persons generically described as a defined class ("children," "brothers and sisters," etc.) and some class members predecease T, the class members who survive the T take (absent contrary provision of the gift.)

How to determine the members of "the class:" Look at who is alive at T’s death to determine the takers of a class gift.

Front 53

Death of Beneficiary During T's Life: Contrast the Class gift rule with the result when Bs are named individually and not as a class?

Back 53

In contrast, if the Bs are named individually and not as a defined class, then if any B dies, the gift to that named B lapses into the residuary, and does not go to the other named beneficiaries. It should be noted, though, that the gift will not lapse into the residuary if the anti-lapse statute applies.

Front 54

Death of Beneficiary During T's Life: When does the anti-lapse statute apply?

Back 54

Unless the will provides otherwise, if a will makes a gift to the T's issue, brother, or sister, and that B predeceases the T leaving issue, the disposition does not lapse but vests in the deceased B's issue who survive T.

Front 55

Death of Beneficiary During T's Life: What is the rule of convenience?

How is the rule applied in to outright gifts to the class by will?

How is the rule applied to postponed gifts?

Back 55

Absent a contrary expression of intent, a class does not close (its max membership is not determined) until some member of the class can call for a distribution of his share of the class gift.

Outright gift by Will: Class closes at T’s death. Subject to gestation principle 280 days from conception to birth.

When the gift to a class is postponed, (intervening life estate), the class does not close until a member is entitled to distribution, (death of the life tenant).

Front 56

Death of Beneficiary During T's Life: Class gifts and life estates rule?

Back 56

If there is a gift of a life estate or an income interest w/ a remainder to a "class of Bs": The class closes at the death of the life tenant or the income beneficiary.

Front 57

Death of Beneficiary During T's Life: Rule on simultaneous deaths?

Back 57

Under USDA Rule: Where the title to the property depends upon the priority of death and it can't be shown that the jt property holders didn't die simultaneously, the property of each person is disposed of as if he survived the other. Applies to distributions of property by any means. See hint for example

Hint 57

Ex: A/B own BA as JT w/ ROS. A insured under life insurance K that names B as beneficiary and C as 2ndary beneficiary. A's will devises estate to various persons. B intestate. A/B die simultaneously. A's 1/2 interest in BA is distributed as though he survived B. B's 1/2 interest in BA is distributed as though he survived A. Life insurance proceeds payable to C b/c A, insured is deemed to have survived the the named beneficiary B.

Front 58

Death of Beneficiary During T's Life: USDA and jointly held property?

Back 58

Property passes as though each co-owner survived. USDA prevents the operation of ROS in cases of jointly held property. The property passes as though a TC was involved, not survivorship property. (Need simultaneous death language)

Front 59

Changes in T's family after will is executed: T marries after Will executed?

Back 59

Rule: Marriage following execution of the will ahs no effect on the validity of a will but it may effect the gifts and dispositions under the will.

Reason: NY law provides for a "right of election" which provides that one cannot disinherit his spouse.

Front 60

Changes in T's family after will is executed: T divorced after will is executed?

Back 60

All gifts to former spouse are revoked by operation of law, as if former spouse pre-deceased T. Fiduciary appointments are also revoked except as to guardian of couple's children.

But: a bequest to a son or daughter of the former spouse is not revoked by the divorce.

Exception: If couple reconcile and remarry, all provisions in favor of the former spouse are restored.

Front 61

Changes in T's family after will is executed: Does the statute apply if H/W had applied for divorce but a final decree had not been entered?

Back 61

No. There must be a final decree for these rules to apply. Divorce decree or annulment.

Front 62

Changes in T's family after will is executed: Does the statute apply if decree of separation entered against H/W before H/W's death?

Back 62

No Only a decree of divorce or annulment makes the statute applicable.

Front 63

Changes in T's family after will is executed: But what about rule that a spouse is DQ'd from being an intestate distributee or taking an elective share if there is a final decree of separation rendered against spouse?

Back 63

Final decree of divorce or annulment are the only things that will knock a spouse out under a will. A will is an overt act. Intestacy is an omission.

Front 64

Changes in T's family after will is executed: Does statute apply to a life insurance policy on H's life that names "my wife W" as primary beneficiary?

Back 64

No, W would still get the proceeds of the insurance. Statute only applies to those assets passing via the will to the spouse. Life insurance policy is a K.

Front 65

Changes in T's family after will is executed: Rule for child born/adopted after will executed, if T had one or more children when will was executed.

Back 65

EPTL gives no protection to children alive when will was executed.

General Rule: The statute applies only to afterborn and after-adopted children who are unprovided for by any settlement and are neither provided for nor mentioned in the will.

If T had one or more children when will was executed: If no provision made for any children, and afterborn kid inherits nothing (afterborn on equal footing with other children who got gotz)

If will made gifts to other children, afterborn child shares in the amount made to the other children as if a class gift was made.

If it appears that the intention of T was to make a limited provision only to the T's children living at the time will was executed, then the afterborn child takes his intestate share.

Front 66

Changes in T's family after will is executed: Rule if T had no children when will was executed:

Back 66

The afterborn child takes his intestate share.

Front 67

Changes in T's family after will is executed: Rules in action:

Back 67

2003 T executed will that place residue of estate in trust: "Income to W for life, and on her death remainder to my children, A and C, in equal shares." 2005, T and W adopted J. T dies, and 2003 will admitted to probate. T survived by W, and A, C, and J. Distribution?

I: Is J (adopted after will executed) "pretermitted" w.in the meaning of the statute? Ask:
Is the child born or adopted after will is executed: Yes.
Is the child "unprovided for by any settlement": Yes
Is the child neither provided for nor mentioned in the will: Yes.

Result: J takes the same as her siblings as if class gift had been made b/c all 3 requirements met (remember, rules apply also to nonmarital children).
The share will come out of the gifts to the other children, the same way a class gift would.

Front 68

Changes in T's family after will is executed: What if children are given different amounts?

Back 68

"I give 100k to my son A and 50k to my son C." Then, T adopts, J. We add the amounts together, and we divide by the # of children, including the afterborn children. 150k to A and C. And with Jodi we have 3 kids 150/3 = 50k. Jodi gets 50k, not equally.

Front 69

Changes in T's family after will is executed: What if will makes a limited provision, e.g., 5$ to A and C, and then T adopts J?

Back 69

Here Jodi is going to take her intestate share, which will come from all the other beneficiaries proportionately.

Front 70

T has taken out a 25k life insurance policy naming J as primary B. Doe J take a share as a pretermitted kid?

Back 70

T has taken out a 25k. No. One of the requirements is that J is not provided for by any other settlement. Here life insurance policy is the other settlement. Doesn’t matter how much, parents thought about the afterborn and provided for.

Front 71

T had no kids at time will executed, then adopts J?

Back 71

Conditions to the statute's operation (1+2+3) are the same. However the result is differnt: Afterborn or afteradopted takes her intestate share. Might be all, or ½ less than 50k if mom still in picture.

Note: recent statute child must be in gestation to count as an afterborn.

Front 72

Reference to facts and events outside the will: Lifetime gift by T to B: Satisfaction of Legacies (will exists)

Back 72

NY RULE: NY has rejected the 'satisfaction of legacies' presumption by statute. Such a gift is not treated as a 'satisfaction of a legacy' unless proved by:
a. A contemporary writing made at time of gift, and
b. Signed by the donor/donee.

Front 73

Reference to facts and events outside the will: Incorporation by reference -- extrinsic document?

Back 73

"MS: The terms of an extrinsic document, not present at the time the will is signed (and thus not part of the will itself) can be incorporated by reference.

NY rule – NY doesn’t recognize incorporation by reference. Everything must be formally executed. Need 7pt test for due execution. Ex: T executes will that provides ""I devise all of my jewelry to persons named in list in safe deposit box. List is found. T's handwriting and signed by T, but not witnessed. The indicated dispositions will not be given effect, b/c IBR not recognized in NY.

Note: In trusts, don't confuse this with pour-over trust

Front 74

Reference to facts and events outside the will: What is the Acts of Independent Significance doctrine?

Back 74

AIS also called non-testamentary acts doctrine. People do lifetime acts that have their own purpose or motive, independent of any testamentary purpose. Acts that occur after the Will is executed should be given full effect when distributions are made.

T executes a will, devising "the auto" I own at my death to A, currently owns a Taurus. Dies owning a Mercedes. A gets the Mercedes. Applies to all tangible property.

Exception for title documents (deeds, stock certs, bank passbooks) these items can only be transferred as mandated by law.

Front 75

Problems associated w/ Testamentary Gifts: Gift classifications?

Back 75

Specific gift: Tangible, personal property.

Demonstrative legacy: A general amount from a specific source.

General legacy: I give 5k to G.

Residuary disposition: "I give all the rest, residue, and remainder of my estate to brother J."

Intestate property: If a partial intestacy results b/c will was poorly drafted, and the will has no residuary clause. If no residuary, and no anti-lapse applicable b/c dealing w/ friend, will goes to partial intestacy.

Front 76

Problems associated w/ Testamentary Gifts: Abatement of legacies to satisfy C's claims?

Back 76

Issue: What happens when there are so many claims against the estate that there aren't enough assets to cover all the gifts made by the will?

Rule: The gifts under the will "abate." Creditors' claims get priority.

Front 77

Problems associated w/ Testamentary Gifts: Absent a provision in will, what is order of abatement of T's property to pay debts and claims?

Back 77

Rule: Start at the bottom of the gift classifications list, and work way to top:

1. Intestate and residuary property: Debts and expenses paid out of here first. For this purpose, two classifications dealt with the same.

If there are still debts:

2. General Legacies: Abate pro rata (proportionately)

3. Demonstrative legacies, abate pro rata.

4. Specific gifts.

5. Last (won't see on bar): Items that qualify for the estate tax marital deduction always abate last.

Front 78

Problems associated w/ Testamentary Gifts: Exoneration of liens:

Back 78

MBE/CL: If T made a specific bequest of property that was subject to a mortgage or other lien on which T was personally liable, then B was entitled to have the lien "exonerated" (paid from the residuary estate).

NY RULE: Liens on specifically bequeathed property are not exonerated (paid off from residue) unless the will directs exoneration. A general direction in the will calling for payment of T's debts is not considered an expression of intent that liens be exonerated. The no-exoneration rule applies where proceeds of any life insurance policy are payable to a named B. If the insured has borrowed against the value of the policy, B takes subject to lien, w/ no personal liability. Unless B pays off the debt, however, C will foreclose and so the B is under a practical compulsion to pay.

Front 79

Problems associated w/ Testamentary Gifts: NY rule of ademption?

Back 79

When specifically bequeathed property (my sailboat) is not in T's estate at time of T's death, the bequest is adeemed -- it fails w/o regard to T's probable intent.

Exception: Ademption does not apply to general and demonstrative legacies. A demonstrative legacy (a gift from a specific source), will turn into a general legacy if there is no cash available from the specific source. Result – assets will have to be sold to satisfy a demonstrative legacy if there is no cash in the estate or if the designated account is no longer in existence.

Front 80

Problems associated w/ Testamentary Gifts: 3 Statutory exceptions to the doctrine of ademption?

Back 80

"a. Casualty insurance proceeds for lost, damaged or destroyed property: Beneficiary takes the insurance proceeds to the extent they are paid after death.

b. Executory K: (K that hasn’t been performed yet) Beneficiary will take the sale proceeds which are paid after death. If K fully performed (proceeds paid) b/f death, B gets nothing.

c. Sale by guardian or conservator of specifically bequeathed property. In this situation, B entitled to receive the money or the property into which the proceeds from the sale or the transfer can be traced. If can’t be found, you have ademption. It is adeemed.

Front 81

Problems associated w/ Testamentary Gifts: Ademption rules applied to bequests of shares of stock and other securities

Back 81

For ademption purposes, gifts of shares of stock in publicly traded corporations are general legacies (they don't adeem) unless T says "I give my X stock" which evidences an intention to make a specific bequest. Gifts of shares of stock in a closely held company are considered specific legacies. They are going to adeem if they don't exist anymore.

Example: T executes a will making the following gifts:

"I give 5k to be paid from the proceeds of sale of my Acme stock to friend F":

"I give my 100 shares of IBM common stock to my sister S":

I give 100 shares of Kodak common stock to my brother C":

At time of will, T owned 100 shares each of Acme, IBM and Kodak. T sold the Acme stock and used the sale of the proceeds to buy a Caddy. T then sold the IBM stock and used the proceeds to buy AT&T stock. T sold Kodak stock and used the proceeds to buy Polaroid stock. Who gets what?

F: (5k from Acme that became the Cadillac) This is a demonstrative gift, and ademption does not apply. F will get the 5k from other assets (but if T still owned Acme stock, E would have a duty to sell it to raise the 5k).

S: (my 100 shares of IBM) this is a specific gift which no longer exists. Ademption applies and S gets nothing.

C: (100 shares of Kodak) It's a general gift, and ademption doesn't apply to general gifts. C will get the value of 100 shares of Kodak stock, coming from other sources.

Remember, stock in a closely held corp is considered a specific gift, and ademption applies. The word "my" is irrelevant when dealing w/ closely held corps.

Front 82

Problems associated w/ Testamentary Gifts: Stock split rule?

Back 82

When dealing w/ bequest of stock: If a stock split occurs it is treated as a specific gift, regardless of whether or not it was a specific gift before the split ("my")

Note: A specific bequest of stocks includes splits, but not stock dividends declared after the will was executed.

Front 83

Problems associated w/ Testamentary Gifts: Change of form not substance

Back 83

T made will that bequeathed "my 1k shares of Tracor stock to daughter N." In 2001, IBM acquires Tracor in a friendly takeover, in which Tracor shareholders get one share of IBM stock for every 2 shares of Tracor stock. T died in 2005 owning 500 shares of IBM but not Tracor. Ademption won't apply, b/c it's a change in form, not substance. Even though it's a specific gift that would normally adeem, Tracor stock directly traceable to IBM stock. Didn't sell it, just changed form.

Front 84

Problems associated w/ Testamentary Gifts: Rule on mistake?

Back 84

T told lawyer to draft will and give E 300 shares of Exxon stock. L's sec'y mistyped the figure as 200 shares which T didn't notice when he read the will. At T's death he owned 300 shares. E gets 200 shares b/c the plain meaning of the will won't be overturned by extrinsic evidence. Absent suspicious circumstances, and where the will is unambiguous, it is conclusively presumed that T read the will and intended the consequences.

Front 85

Problems associated w/ Testamentary Gifts: Types of ambiguity?

Back 85

Latent ambiguity: when language of will results in a misdescription when applied to facts to which it refers (2 or more persons or things fit the description, or no one fits description exactly, but 2 or more persons fit description in part). Extrinsic evidence, including declarations by T to her attorney or to 3P, are admissible to clear ambiguity.

Patent ambiguity: When uncertainty appears on the face of the will. EE, including statements made by the T to attorney, BUT not declarations by T to 3Ps, is admissible to cure this type of ambiguity. W/ a patent ambiguity, won't allow evidence that contradicts what the will said.

If extrinsic evidence doesn't cure the ambiguity, the gift fails, b/c no ascertainable B.

Front 86

Problems associated w/ Testamentary Gifts: Conditional wills

Back 86

"Conditional Wills – Impose an obligation only if some condition is satisfied.
Bar exam – argue both ways. Limited instance in which you would do this. Unlikely to be on bar, would have to tell you what’s going on in T’s head.

Front 87

Problems associated w/ Testamentary Gifts: K to make a will.

Back 87

A joint will is a will of 2 people in one document.
I: Was the will executed pursuant to a K that the survivor would not revoke the joint will after the death of the other person?
Statutory R: A K to make a will or not revoke a will can only be established by an express statement that the Will’s provisions are intended to constitute a K between the parties.
If you have a K will and the survivor breaches the K by writing a will with inconsistent provisions, first probate the new will, even though it differs from the K will. Then the court will impose a constructive trust in favor of the original intended Bs.
A K Joint Will can be revoked by agreement of the parties while they are both alive. Estate can't revoke K will on behalf of decedent spouse.

Front 88

Problems associated w/ Testamentary Gifts: Negative bequest rule

Back 88

NY: Words of disinheritance are given full effect, even in partial intestacy. If partial intestacy, treat disinherited as if she pre-deceased T.

Front 89

Non-Probate Assets: Definition

Back 89

Non-probate assets are interests in property that are not subject to the disposition under the will and therefore are not part of the probate estate.

Probate estate in contrast: Property that a decedent owned solely in his name at the time of death is disposed of pursuant to the terms of the will.

Front 90

Non-Probate Assets: Types

Back 90

1. Property passing w/ ROS (bank account, joint stock account, real property, etc). New law - also includes payable on death securities.

2. Property passing by K is a non-probate asset (life insurance policy, Ee benefits payable to a B other than decedent or decedent's estate. If paid to the insured's executory or insured's estate, it becomes a probate asset) If T has life insurance policy that names A as B, even if he leaves proceeds to someone else in will, B, proceeds still payable to A.

3. Property held in trust, including a revocable trust.

4. Property over which decedent held power of appointment.

Front 91

Elective share statute: Purpose

What is the elective share?

Back 91

Protect the surviving spouse against disinheritance by giving decedent's surviving spouse a minimum share of decedent's estate.

Elective share = greater of 50k OR 1/3 of the estate, * plus interest at 6% beginning 7 months after issuance of Letters Testamentary to executor (or Letters of Administration to the administrator appointed by the court).

Front 92

Elective share statute: Compare w/ intestate share

Back 92

If IT survived by spouse and issue: 50k plus 1/2 balance of the estate.

If IT survived by spouse and no issue: whole enchilada.

If decedent died intestate, surviving spouse's intestate share would be larger than elective share - unless Testamentary Substitutes were used.

Front 93

Elective share statute: T-Sub, AKA augmented estate or elective share estate

Back 93

TS LEG UP

1. TOTTEN Trust accounts (payable on death securities treated the same)

2. SURVIVORSHIP Estates: JTs, TEs, JT and Survivor Bank Accounts created after 9/1/1966. Watch out for pre & post marriage scenarios.

3. LIFETIME transfers w/ strings attached: Transfers w/ a retained power to revoke, invade, consume or dispose of principal or name new Bs AND irrevocable transfers (made during marriag) w/ retained LE mad on or after 9/1/1992.

4. EMPLOYEE pension, profit-sharing, deferred compensation plans.

5. GIFT of more than 12k w/in 1 yr of death. Also, 'gifts cause mortis' - gifts made in fear of impending death - even w/in the 12k exclusion are T-Subs.

6. UNITED STATES gov't bonds and other P.O.D. arrangements.

7. POWERS of appointment: Property over which decedent held a presently exercisable general power of appt (but not property over which he held a general testamentary power)

Note: Generally speaking, if T still has some sort of interest in the property, it's probably a T-Sub. Exception: a gift made w/in 1 yr of death.

Front 94

Elective share statute: What aren't T-SUBS?

Back 94

LOGPIT

1. ***LIFE insurance*** Whether payable to surviving spouse or 3P

2. 1/2 qualified pension and profit sharing benefits

3. Gifts made w/in 1 year of death, w/in the 12k annual exclusion

4. Pre-marriage irrevocable X-fers.

5. Irrevocable X-fers made more than 1yr b/f death

6. Transfers (irrevocable) w/ retained life estate made b/f 9/1/92 and made during marriage.

Note: Generally speaking, if T doesn't retain an interest, it's not a T-Sub

Front 95

Elective share statute: What amt of T-Sub included in calculating the "elective share estate"

Back 95

Rule: The full amt, EXCEPT:

1. When the consideration furnished test applies. Rule: Where you have survivorship estates w/ deceased spouse and 3P, that surviving spouse has burden of proof as to decedent's contributions the assets' acquisitions (if RP) or to the deposits in Jt bk acct. S spouse, dead spouse, 3P, S spouse has to show much was the dead spouse's

2. Survivorship estates of dec spouse and surviving spouse (JT, TE, Bk acct WROS) Rule: 1/2 is a T-Sub. Consideration furnished test doesn't apply when dealing w/ survivorship interests between dead spouse and surviving spouse.

Front 96

Elective share statute: T-Subs and Intestacy

Back 96

T died survived by wife W. No kids. T left 100k in bk acct in trust for his cousin C. No other assets solely in his name. T had a jt bk acct of 140k with F created after marriage to W. T contributed all the money into this bk acct.

1. Under intestacy: W would get nothing. But can't screw spouse.

2. Under elective share: a) T trust w/ C worth 100k.

b) Jt bk acct w/ friend, consideration furnished test - all 140k.

c) Total amt of T-subs is 240k

d) W entitled to 1/3 of 240k in T-subs

e) entitled to 80k, b/c not getting anything else.

Front 97

Elective share statute: How do T's Bs contribute to satisfy the net elective share?

Back 97

Rule: To satisfy the net elective share, all Bs contribute pro rata.

Includes Bs under the will, Bs of T-subs, intestate distributees.

Front 98

Elective share statute: Do elective share trusts satisfy surviving spouse's right of election?

Back 98

b/f 9/1/94, right to an elective share could be eliminated thru use of an elective share trust that gave surviving spouse life estate, as long as least 50k was given outright to spouse. If the sum of outright dispos of at least 50k pluse the princple of the trust equalled or exceeded the 1/3 elective share amt, surv spouse had no right of election

Now: Life estates (terminable interests) no longer satisfy the elective share entitlement. For estates of decedents dying on or after 9/1/94, a life estate will not satisfy the elective share entitlement. (Not controlled by date the will was executed but date of death).

Can still see this if will executed prior to 9/1/94 that contains an elective share trust w/ T dying on/after 9/1/94.

Front 99

Elective share statute: What happens to a surviving spouse's LE trust income interest if she files for an elective share?

Back 99

You read the trust as though surviving spouse pre-deceased T. Kill the trust, as if no longer LE in W. Accelerate the remainder and remainderman gets the whole thing immediately.

Front 100

Elective share statute: Can a spouse of decedent not domiciled in NY at time of his death claim an elective share under EPTL?

Back 100

No. Only spouse of dec domiciled in NY at time of death has a right of election. State where dec domiciliary at time of death will govern.

Front 101

Elective share statute: Exception to the last rule?

Back 101

If T expressly states in his will that the disposition of his property in NY is to be governed by NY law. In such a scenario, T's net estate for elective share purposes will include value of other state's assets, even though NY court can't adjudicate ownership. Would have to do ancillary proceeding for that. But NY rules will govern the will.

Front 102

Elective share statute: What is exempt property?

Back 102

EP = items which come off the top, b/f property passing by will, intestacy, or elective share

Front 103

Elective share statute: How to strengthen any NY Bar exam question involving a surviving spouse?

Back 103

Mention the exempt personal property set-aside:

1. Car up to 15k value

2. furniture appliances, computers, etc up to 10k value

3. 15k cash allowance (which isn't subject to creditor's claims, except for funeral expenses)

4. Animals, farm machinery, tractor up to 15k.

5. Books, pictures, videotapes, software, etc up to 1k.

Total value of exempt property = 56k.

Front 104

Elective share statute: When is spouse DQ'd from taking elective share (and exempt property)

Back 104

DISMAL

* DIVORCE - final decree of divorce or annulment valid under NY law

* INVALID divorce/annulment: procured by surviving spouse

* SEPARATION decree (***NOT AGREEMENT***) rendered against surviving spouse

* MARRIAGE void as incestuous or bigamous

** ABANDONMENT and LACK of support

Front 105

Will Contests: 4 things needed for testamentary capacity?

Back 105

Did T have suff cap to

1. Understand the nature of his act

2. Know the nature and approximate value of his property

3. Know the natural object of his bounty

4. Understand the scope and meaning of the provisions of his will

Notes:

The capacity to make a will requires less capacity than is required for any other legal instrument

Even if before writing and signing her will, T adjudicated incompetent and a guardian appointed to manage her affairs, court can still find capacity if court determines that T executed her will during a lucid interval

Front 106

Will Contests: What is insane delusion?

Back 106

T of sound mind on other subjects, but has a persistent belief in supposed facts that have no real existence except in T's perverted imagination. The facts are against all evidence, probability, and control and produce the exercise of the testamentary act.

Front 107

Will Contests: ***What is UI? (3)

Back 107

Testamentary capacity subjected to and controlled by a dominant influence of power. Burden of proof is on contestant to prove:

1. The existence and exertion of an influence AND

2. The effect of such influence was to overpower mind and will of T AND

3. The product is a will or a gift in a will which wouldn't have happened but for that influence.

Influence not undue unless the free agency of the T was destroyed such that Will produced is essentially a Will, not of the T, but of the one exerting the influence.

Front 108

Will Contests: While evidence of UI is usually circumstantial the following situations alone is NOT enough to show UI:

Back 108

1. The opportunity to exert influence (one child who took care of T and held POA and who winds up w/ bulk of estate not enough alone)

2. Susceptibility to influence b/c of age or illness

3. Unequal dispositions (fact that some children took less than others/excluded entirely not enough

Front 109

Will Contests: How are gifts to people in a confidential relationship w/ T scrutinized?

Back 109

T executes will and bequeaths 25k to lawyer who prepared will. Even if T's other Bs don't file objection to such a bequest:

Rule:

1. if a will makes a gift to one in a confidential relationship AND

2. that person was active in preparing the will THEN

You have an inference of UI which satisfies the Will contestant's burden of proof, if not rebutted.

Front 110

Will Contests: What is Putnam Scrutiny?

Back 110

If a Will makes a bequest to a drafting atty, Surrogate Court automatically makes a Putnam Scrutiny even if no objection is filed to determin whether gift was voluntarily made.

Front 111

Will Contests: ***Under EPTL, what must drafting attorney do if Will names that attorney as executor?

Back 111

***EPTL: If Will names drafting attorney as executor, he must give written disclosure to client that:

1. Any person can be that named executory, not just the attorney, AND

2. That the executor receives a statutory commission, AND

3. The attorney will also be entitled to legal fees for representing estate.

Client must sign the acknowledgment w/ 2 witnesses.

Front 112

Will Contests: What is the effect if drafting attorney fails to comply with disclosure statute?

Back 112

The attorney would receive only 1/2 of the statutory commission

Front 113

Will Contests: What is an "in terrorem" clause?

Back 113

A clause in a Will that says if anyone objects to T's Will, the objector will get nothing.

Front 114

Will Contests: What's the majority rule on in terrorem clauses?

Back 114

No-contest clauses are given full effect unless court finds that contest was brought in good faith and w/ probable cause (it wasn't a frivolous suit designed to extract a settlement)

Front 115

Will Contests: What's the NY rule on in terrorem clauses?

Back 115

The clause is given full effect even if there was probable cause to challenge the will.

Front 116

Will Contests: What are the exceptions to the NY rule that in terrorem clauses are fully enforceable?

Back 116

1. A forgery or that the Will revoked by a later Will, if Surrogate finds that there was probable cause for the contest. The revoked Will clause is strictly construed to apply only to a Will revoked by a later Will, and not to a Will revoked by physical act.

2. If contest filed on behalf of an infant or incompetent (action taken by a 3P (the guardian) should not work a forfeiture

3. A construction proceeding to construe the Will's terms: not challenging the Will, just want to know what interests are created by it.

4. An objection to the jurisdiction by the court.

Front 117

Powers of Appointment: What are they?

Back 117

An authority created in or reserved by a person enabling that person to designate, w/in limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they take it.

Front 118

Powers of Appointment: P of A definitions

Back 118

Donor: The creator of the power

Donee: person given the power

Takers in default: persons who take the property if donee fails to correctly exercise the power

A person who reserves P of A in himself is donor and donee

Front 119

Powers of Appointment: What are the different types of P of A

Back 119

In any P of A Q, first thing to do is classify the power:

1. General P of A: GP of A means a donee can appoint to herself, her creditors or her estate. It's as if she owned property herself

2. Special P of A (limited): The donee can't appoint to herself or her family

3. Presently exercisable P of A: Donee can exercise P of A right now

4. Testamentary P of A: Donee can appoint only by Will.

Front 120

Powers of Appointment: If the will of someone who has testamentary P of A makes no mention of it in her will, and only contains a general will provision, what happens?

Back 120

A general will provision exercises all Ps of A held by the donee T who was given the power, unless the instrument that created donee's P of A called for a specific reference to it in the donee's own will.

Front 121

Powers of Appointment: What Ps of A are T-Subs for elective share purposes? What are not T-subs

Back 121

Are:

General presently exercisable P of A

Are not:

General testamentary P of A

Special P of A that donee can't get to in her lifetime.

If donee can get to it during lifetime, it's a T-Sub.

Front 122

Powers of Appointment: Can a donee's Cs reach the appointed assets if donee has a GPE P of A?

Back 122

Yes, even if donee doesn't exercise power. If donee can reach the asset, then so can donee's creditors (similar to trusts)

But as above, if donee can't get to the assets of the appointment, then neither can donee's creditors.

Front 123

Intestacy rules: What is the rule for determining paternity after father's death?

Back 123

2. Rule for paternity after father's death:

***(i) After death, paternity is established in a probate proceding by:

- C & CE, like participation in school activities, gifts. support itself is not enough

AND

- Father openly and notoriously acknowledges child as his own, as in a birth certificate, statements, OR

***(ii) A blood genetic marker test (DNA) + C & CE (only if DNA is rebutted)

NOTE: All of this (including DNA sample) has to have been established b/f father's death