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124 Cards in this Set

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Intestacy rules apply when? (3)
1. No Will
2. Will does not make completed disposition of estate (partial intestacy)
3. Invalid changes – intestate distributee successfully challenges Will & Will denied probate
Distribution order under intestacy?
 Surviving spouse
 Children
 Grandchildren
 Parents
 Brothers/sisters
 Any other distribute
Intestate decedent survived by Children and issue of predeceased children
Estate passes to “alive children” and the issue of the “dead children” by representation (per capita at each generation)
per capita at each generation
-Make initial equal division of shares, one for each line of issue (count all children regardless if alive or dead)
-All living children take one share
-Shares of deceased children combined then divided equally among the takers of the next generation
per stirpes
children of deceased child would take share of their deceased parent and divide by number of living children in 2nd generation
When is a spouse disqualified from taking intestate share? (5)
DISMAL
•Divorce – final decree of divorce or annulment valid under NY law
•Invalid divorce – surviving spouse got divorce/annulment outside NY, not recognized in NY
•Separation decree – rendered against surviving spouse; NOT separation agreements
•Marriage void – incestuous or bigamous
•Abandonment or
Lack of support – surviving spouse abandoned or refused to support deceased spouse
DISMAL
Under intestastacy, what are the inheritance rights of adopted children?
full inheritance rights by adopting family; no inheritance rights from natural family
Exception – child adopted by spouse of natural parent
What are the inheritance rights of non-marital child under intestacy?
-Child born out of wedlock has full inheritance from mother and mother’s family;
-Child only inherits from natural father IF paternity established
How is paternity established during father’s life for purposes of intestacy? (3)
•Legitimatized by marriage, father marries mother after child’s born OR
•Order of filiation in paternity suit adjudicates father to be child’s father OR
•Father files witnessed, acknowledged (notarized) affidavit of paternity with Putative Father Registry
How is paternity established after father’s death for intestacy purposes?
•Paternity established by clear and convincing evidence AND
•Participation in school activities, visitation, gifts
•Support by itself not good enough
• Father openly and notoriously acknowledges child as his own OR
•Allows his name on birth certificate “the kid is mine”
•DNA test PLUS clear and convincing evidence (if DNA rebutted)
•If DNA after death must show open/notorious acknowledgement “equitable paternity”
What are lifetime gifts to intestate distributees considered under intestacy?
Advancements
CL – lifetime gift to child presumptively an advancement, presumption that parent would want to treat all children equally
NY – rejects advancement presumption
There is NO advancement, UNLESS proven by: (i) a contemporaneous writing; (ii) signed by the donor or donee
What is required for a disclaimer of a gift/bequest? what is the effect of disclaimer? (4)
Bequest passes as though disclaimant predeceased donor;
1. Must be in writing, signed and acknowledged (notarized) AND
2. Must be accompanied by separate affidavit stating no consideration received and no one paid you to disclaim AND
3. Must be irrevocable (after filed, cannot change your mind) AND
4. Disclaimer (renunciation) must be filed with Surrogate’s Ct w/in 9 months of Date of Death
Why disclaim a bequest?
-Avoid taxes and avoid creditor’s claims
-CANNOT disclaim to remain eligible for Medicaid, against public policy
-Beneficiaries of life insurance, employee benefit plans, trusts, other non-testamentary transfers, surviving Joint Tenants or Tenants by Entirety can disclaim w/ ct approval
-Disclaimer can be made by guardian, holder of durable POA or personal representative
Requirements for validly executed Will (7 point test).
1. Testator must be 18 yrs old
2. Will must be signed by T
3. T’s signature “must be at the end thereof”
4. T must sign Will or earlier signature in presence of each witness
5. T must “publish the Will”
6. Must be at least 2 attesting W’s AND
7. Execution ceremony must be completed w/i 30 days from when 1st Witness signs
Who has the burden to prove a will? If Will not self-proved, what must be proved/how?
Will Proponent
-Both attesting W’s must testify to show due execution
-If one W dead, absent from the state, incompetent or cannot be found with due diligence – testimony of one W okay
-If no W’s available, proponent must prove 2 signatures – the T’s and one W
What is a Codicil?
Later amendment/supplement to a Will; Must be executed with same formalities as Will
What is an Attestation clause?
Appears below T’s signature line and above W’s signature lines, recites all the elements of due execution;
-Is prima facie evidence of the facts presented;
Useful when: (i) W has bad memory, or (ii) Hostile W – says some other document signed not the Will
What is a Self-proving affidavit?
(attached to back of Will)
-W’s sign sworn statement in the presence of atty and recites all statements they would make if called to testify in probate ct
-Signature – can be signed anytime after Will executed, usu signed contemporaneously
Substitute for live testimony – same function as deposition/interrogatory, bc it’s a sworn statement
What happens if a Self-proving affidavit is challenged?
Will admitted on strength of affidavit UNLESS, interested party objects, then due execution must be proved by:
•If objection, must call the 2 attesting W’s to testify
•Interested party is intestate distributee who is adversely affected (maybe not in will) by admission of Will to probate
What is the Interested Witness Statue?
If Will beneficiary is also attesting W, does not affect validity of Will but:
-Bequest to interested W is VOID unless:
• At least 3 total W’s and 2 disinterested; OR
• The interested W would be an intestate distributee if T died w/o a Will
What is the “Whichever is least” rule under the Interested Witness Statute?
The Witness/beneficiary takes the lesser of:
• The bequest under the Will OR-
• Intestate share
Can an executor also serve as an attesting W?
Yes, Still qualified to serve and be compensated as executor
What is required for a foreign will to be admitted into probate in NY under the Foreign Wills Act?
E N D
Will is admissible to probate in NY if :
-Validly executed under law of the state where EXECUTED, regardless of T’s domicile at that time OR
-NEW YORK law OR
-Law of the state where T was DOMICILED, either when Will executed or at death
Note: Once admitted for probate in NY, NY law governs construction/application of provisions
What is a HolographicWill?
Will entirely in the T’s handwriting, signed but not witnessed
NY – Void, except for members of armed forces during declared/undeclared war (expires one year after discharge) and mariners at sea (expires after 3 yrs)
What is a Nuncupative will?
An oral Will. Void in NY except for members of armed forces during declared/undeclared war (expires one year after discharge) and mariners at sea (expires after 3 yrs)
Can beneficiaries sue atty for negligence?
No, bc no privity of K btw beneficiaries of a Will and atty; Privity lies with T
What are the 2 valid methods of revocation?
1. Substitute testamentary instrument executed with appropriate formalities (7 pt. test)
2. By physical act – burning, tearing, cutting, canceling, obliteration or other mutilation act:
• Words of revocation MUST cross words in the Will – if VOID wrote across each page through the writing then this would be physical act
• T crosses out signature with big X – anything done to signature shows intent to revoke
Is writing “this Will is void” and T’s signature on bottom of each page, effective revocation?
No.
How does one effect the Express revocation of a will?
Start the new will with: “I hereby revoke all previous wills made by me,” not just say, “my last Will"; IF NOT DONE then subsequent wills will only be revoked by impllication
What is the difference between Express revocation and Implied Revocation?
-Express revocation accomplished by words and revokes former wills;
-Implied revocation accomplished by default (creating another will) and only replaces revokes inconsistencies.
How do you accomplish Revocation by physical act by another (revocation by proxy)
Physical Act must be
 At T’s request AND
 In T’s presence AND
 Witnessed by at least 2 W’s of “the act”
Therefore you need 4 people in the room – the “revoker,” T and 2 W’s
What are the Presumptions regarding revocation of Wills? (2)
1. Will last seen in T’s possession and cannot be found after death – presumed that T revoked by physical act
2. Will last seen in T’s possession and later found mutilated after T’s death – presumed that T was the one who revoked by physical act.
-Neither applies if Will last seen in possession of one adversely affected by contents
-Evidence admissible to rebut presumption of revocation where Will cannot be found
Can you scribble over a line in a NY will revoking it?
No, partial revocation by physical act NOT recognized in NY AND words added after valid execution are discarded
How can a T revive a revoked will? (2)
• Re-execution (by 7 points) OR
• Doctrine of “republication by codicil” – T validly executes codicil to 1st Will reviving it.
• NY – no “revival” also applies to codicils
Under Dependent Relative Revocation, what mistake by T are we trying to correct?
• When T's mistake of law that revocation of a subsequent will would revive a former will, DDR gives effect to the earlier will—hence second best solution.
• Only if the disposition that results from disregarding 2nd revocation brings ct closer to doing what T tried and failed to do, revive 1st Will.
What proof must be offered by proponent to invoke the Lost Wills statute (and avoid intestacy)? (3)
1. Due execution must be proved (7 points) AND
2. Proponent must establish that Will was NOT revoked, OR Prove that revocation should be disregarded under DDR, AND
3. Proponent must prove will provisions by at least 2 credible W’s OR by a copy or draft of Will which is proved to be true and complete
What 2 conditions must be present for a gift to vest and avoid lapse under NY Anti-Lapse Statute?
1. The pre-deceased beneficiary was the T's issue or sibling, AND
2. The predeceased benficiary has issue who survive T
How and Why could you purposely trigger the anti-lapse statute while alive?
Disclaim; Anti-lapse provides for a substitute taker, issue of deceased not deceased estate
Note: If gift is conditional on survival “if X survives me,” and X predeceases T, gift fails
Which will succeed in NY: "adopted out" doctrine or anti-lapse provision?
Anti-lapse. In NY case, son adopted out was still named benficiary in father's will. son predeceased with issue. Ct. held issue would take under anti-laps notwithstanding adopted out.
Is T's residuary clause subject to anti-lapse?
It depends. under “Surviving residuary beneficiaries” Rule
If T’s residuary estate is
• Devised to 2 or more persons AND
• Gift to one fails or lapses for any reason AND
• Anti-lapse statue does not apply, THEN
• Other residuary beneficiaries will take entire residuary estate in proportion to their interests in the residue, absent a contrary provision in the Will
Anti-lapse usu. trumps
What occurs to the gift if a member of a class being given a bequest predeceases the T?
If Will makes gift to a class, and some class members predecease T, class members who survive take;
Rationale – T was “group-minded” in making the gift and wanted this class of persons to share ownership of property
When does a class of beneficiaries close?
When the distribution is made. Usually at death. All later born are excluded except those in gestation at time gift is made.
What is USDA? how are the deceased treated vis a vis each other?
Uniform Simultaneous Death Act. Each is treated as if they survived the other.
What happens to gifts to T's former wife if they divorce?
All gifts and fiduciary appointments in favor of former spouse are revoked by operation of law
-Rule – read the Will as though the spouse predeceased the T
-Bequest to a son/daughter of former spouse are not revoked by the divorce
-If couple reconcile and remarry, all provisions in favor of former spouse are restored
What are Pretermitted Children?
Children born or adopted after the Will is executed.
If T gives nothing to his children in his will then has another child and soon after dies, what does the last child get?
Nothing. Pretermitted children get nothing if the other got nothing.
If T gives gifts to his children in his will then has another child and soon after dies, what does the last child get?
shares in the gifts of the children/beneficiaries as though it were a lcass gift.
If T has no children, but has a will then has a child and soon after dies, what does the child get?
takes by intestacy. Remember: $50k + half of residue to spouse and other half of residue to child
If a will does not dispose of all property, will the undisposed of property pass by intestacy?
NO. Under New York's Negative Bequest Rule, words of disinheritance are given full effect--even in partial intestacy.
If T gives a gift during his life, will it "go towards" the persons bequest when T dies?
NY – rejects “satisfaction of legacies.” Such gift is NOT treated as “satisfaction of legacy” UNLESS proved by
1. Contemporaneous writing made at the time of the gift AND
2. Signed by the donor or donee
Could a T change the value of a gift after will creation?
YES. by acts of independent significance. e.g. build a house on land. if land is bequest, value of gift has gone up.
Can a will refer to an extrinsic memo listing bequests?
NO-Not in NY. Incorporation by reference – extrinsic documents not permitted in NY; the extrinsic document must itself endure 7 point formalies, which turn the extrinsic document into a? (hit h)
Codicil
Which is a specific gift bequest:
1. “I devise Blueacre to my son John”; gift of tangible property
2. “I bequeath 5k to be paid from the proceeds of the sale of IBM stock to Donna.”
3. “I give the sum of 5k to George”; usually money or stock
4. “I give all the rest, residue and remainder to my brother Jim”
1. Define a specific gift
Blueacre is specified so it is a specific gift.
What is a demonstrative legacy?
A general amount from a specific source, “I bequeath 5k to be paid from the proceeds of the sale of IBM stock to Donna.” (designates where money comes from)
What is the criteria for a general legacy?
None. it is usually a gift of money or stock from no particular source
If will was poorly drafted and there is no residuary clause and anti-lapse does not apply then how will property pass?
By intestacy.
What is the hierarchy for abatment of gifts? (4)
1. Specific
2. Demonstrative
3. General
4. Residuary
O to A. but gift has a mortgage on it. How does A take?
Liens on specifically devised property not exonerated UNLESS Will directs exoneration
Note Also: General provisions for payments of debts do not work to exonerate liens
What if O to A, redacre. but at time of death O has no title to redacre?
If a Will makes a specific gift of property and the property cannot be found or is not owned by T at her death, the gift fails under the doctrine of ADEMPTION, w/o regard to T’s probable intent.
Ademption = failure of gift
Which type of gift can be adeemed? Which cannot?
Specific can.

Demonstrative, General and Residuary cannot.
Remember ademption happens to specific bequests that are missing so it affects specific gifts.
What is O to A, $100 from the shares of my IBM stock?
This is a Demonstrative legacy: a demonstrative legacy (gift from a specific source) will turn into a general legacy if no cash available from the specific source;
Assets will have to be sold to satisfy a demonstrative legacy if there is no cash in the
What if O to A redacre and O subsequently dies in a fire on redacre buring down the insured house?
Under statute, beneficiary takes insurance proceeds if they are paid after the death of T-no ademption.
If proceeds paid to T before death, ademption applies and beneficiary gets nothing.
What if O to A redacre and O contracts to sells redacre then dies?
Executory K (K has not yet been performed)
• Beneficiary only takes if proceeds paid after death of T; otherwise the proceeds adeem
What is sale by guardian or conservator of specifically bequeathed property?
Beneficiary is entitled to receive money or property to which the proceeds from the sale or transfer can be traced. If proceeds cannot be traced, ademption occurs
What if O to A 500 shares of GE and stock is not there when O dies?
Gift of public stock are GENERALLY general gifts.
Exception: Gift of public stock made specific when T bequeathes: "...MY GE stock..."
What id O to A 500 shares of mom&pop Co?
Gift of closely held shares are ALWAYS a specific bequest, hence they adeem if not owned at time of death.
What if O to A 500 shares of GE, but after will is made, stock splits?
The term 500 ONLY is treated as a specific gift--otherwise the gift remains a general gift. So A takes 1000 shares of GE as a general gift.
What if O to A $500 from the shares of GE stock. At death, O owns no GE?
Type of gift? treatment?
This is a demonstrative gift--A gift from a specific source.
If source does not exist, gift turns into a general bequest--get the cash from elsewhere.
What if O to A 500 shares of my GE stock. At death, O owns no GE?
Type of gift? treatment?
This is a specific gift (NOTE: "my GE stock").
It ADEEMS--the gift fails by ademption b/c specific and no longer exists.
What if O to A 500 shares of GE stock. At death, O owns no GE?
Type of gift? treatment?
This is a general gift because it is public stock and not specified as "MY" so the gift is replaced with value (cash)
What if O to A 500 shares of mom&pop Co stock. At death, O owns no mom&pop Co?
Type of gift? treatment?
Specific Bequest b/c closely held. Gift fails b/c no stock is owned.
What if O to A my 500 shares of GE and GE is bought by MS in a 2 for 1 deal?
Type of Gift? Treatment?
Specific b/c "MY"
A gets 1000 shares b/c change in form not substance so ademption will not destroy the gift.
What if O to A my lamp and lamp is not found at time of death, but a bill of sale shows the lamp sold and $50,000 still due?
Type of Gift? Treatment?
Specific Bequest of Lamp.
Which has an executory K invovled. A has right under statutory expemtion to proceeds.
What are the types of assets that do NOT pass through probate?(4)
1. Property passing by right of survivorship – bank accounts, joint stock accounts, POD accounts (payable on death)
2. Property passing by K – life ins policy, employee benefits paid to a beneficiary
3. Property held in trust – revocable trust; terms of trust will govern the trust assets
4. Property over which decedent held a POA (power of appointment)
If a spouse's elective share is not satisfied, who accounts for it (3) and how?
1. Beneficiaries under will
2. Beneficiaries of T-subs
3. Intestate distributees:
All contribute to the shortfall pro rata.
What are the Testamentary Subsitutes? (Tsubs)
Hint: T Subs need LEG UP
1. Totten trusts – A, trustee for B and POD accounts/securities
2. Survivorship estates – JT, TbE, joint and survivor bank accounts created after 9/1/66. Watch for pre and post marriage scenarios
3. Lifetime transfers w/ strings attached – transfers w/ a retained power to revoke, invade, consume or dispose of principal, name new beneficiaries AND irrevocable trusts made during marriage w/ retained LE made on/after 9/1/92
4. Employee pension, profit-sharing, deferred compensation plans – if employee designate the beneficiary on/after 9/1/92 and after marriage
5. Gifts made w/i 1 yr of death – more than 13K, gifts causa mortis even w/i the 13K exclusion made in fear of impending death. Gifts automatically revoked if donor survives expected peril
6. United States government bonds and other POD arrangements
7. POA – property over which decedent/testator held a presently exercisable general POA; property over which a testator
What is the rationale for attacking the T-subs in order to satisfy the elective share?
The elective share prevents disinheritance of spouse. However, T can avoid testamentary transfers by using substitutes, so by including T subs, we cut off loop hole.
What is the general rule regarding T-subs?
They are everywhere. If T had an interest at death, it is likely a T-sub.
Is property over which the T held a general testamentary power a T-sub?
NO. Not a T-sub b/c T cannot get to it during life. So it was not hers to begin with.
What interests are NOT T-subs? Hint: LOGPIT
1. Life insurance – whether payable to surviving spouse or 3d party
2. One-half of qualified pensions and profit-sharing benefits
3. Gifts Less than $13K made w/i 1 yr of death
4. Pre-marriage irrevocable transfers – transfers in which grantor did not retain power to revoke, invade, consume or dispose of principal
5. Irrevocable transfers made more than one year before death
6. Transfers (irrevocable w/ retained LE – mad before 9/192 and made during marriage
Is Life Insurance a T-sub?
NO. purely political--effective lobbying.
How much goes towards elective share of: Survivorship estates btw deceased spouse and 3d party (JT, joint/survivor bank accts)?
Rule – “consideration furnished test” applies. Surviving spouse has the burden of proving the decedent’s contributions to the asset’s acquisition (real property) or to the amount on deposits in joint bank accounts.
How are survivorship estates w/ deceased spouse and surviving spouse treated for elective share?
Rule – ½ automatically is a Tsub. Do NOT apply consideration furnished test.
How do you determine the elective share due to a surviving spouse?
Step 1: determine net probate estate (all bequests passing by will less debts and expenses)
Step 2: Add T-subs.
Step 3: Add 1/2 t-subs w/ spouse
Step 4: Add consideration furnished of T-subs w.3rd party.
Step 5: Total is Elective share estate.
Step 4: 1/3 equals Elective Share due to surviving spouse.
If Spouses own a Joint account, how much is added to elective share estate?
1/2 in 1/2 OUT PERIOD.
What gifts given to surviving spouse go towards determining if elective share has been met? (3)
Add:
1. All testamentary gifts to spouse, PLUS
2. Half of All T-subs from spouse to spouse, PLUS
3. Amount passing to spouse by intestacy
What is the "consideration test" as applied to calculating a surviving spouse's elective share?
As between, Spouse and 3rd party, the surviving spouse must prove the consideration furnished by their dead spouse in order to include that amount in FULL in the elective share estate.
What result when applying the "consideration test" to pre-marital survivorship estates?
The surviving spouse only gets HALF of consideration furnished by the dead spouse before the marriage. The other half is considered a gift to the joint tenant.
Does the Probate Court have the power to strip 3rd party owner's of interests in T-subs of their interest?
YES
What COA will a surviving spouse bring to get their elective share?
a Notice of Election. to invoke their right of election
If T dies before 9/1/94, what effect on surviving spouse?
Surviving spouse's elective share could be satisfied by putting elective share (1/3 of elective estate) into trust with income for life + $50k outright.
If T dies after 9/1/94, what effect on surviving spouse?
Apply elective share analysis:
net probate estate +
T-subs +
1/2 JT's between spouses +
provable consideration from JT's w/ 3rd parties
DIVIDED BY 3
then figure out what the surviving spouse is actually getting:
1/2 JT's w/ spouse +
bequests +
intestate share +
T-subs =
Total Amount rec'd (if greater than elective share--do nothing; if less than elective share others give pro rata)
Can a FL domiciliary surviving spouse invoke their elective share?
No, only a spouse of a decedent domiciled in NY at the time of death has right of election
However, the T may elect the laws of NY to govern expressly.
What is the exempt property set aside? (5)
1.Car up to 15K
2. Furniture, appliances, computers up to 10k
3. 15k cash allowance
4. Animals, farm machinery, tractor up to 15k
5. Books, pictures, videotapes, software up to 1k
*Tip – unless the bar gives us a specific item, do all other calculations 1st, then at the end say “surviving spouse gets exempt personal property up to 56k-the total”
Distinguish a General from a Special (or Limited) POA.
1. General POA – donee can appoint to herself, her creditors or her estate as if she owned the property herself. Not limited to whom she can appoint
2. Special POA (limited POA) – donee cannot appoint to herself, her creditors or her estate, limited to whom she can appoint; usually a limited class to whom she may appoint
a. If Donee cannot get to trust during her lifetime, trust NOT a T-sub
b. If Donee cannot get to assets then neither can donee’s creditors
If a POA grants donee the right to give the trust res to any heir or heirs she choses, what type of POA is it?
a special testamentary POA. She is limited to a class-hence "special" and she must devise it- hence testamentary
what if a donee forgets to bequeath gifts according to a POA?
the POA survives and gifts go residue under residuary clause; unless the POA specifically requires specific bequest.
If a POA is presently exercisable, can a surviving spouse include it in elective estate as a t-sub?
YES. b/c it is presently exercisable, the T could have used it in life and it was "hers" BUT if the POA only allowed testamentary appointment, then NOT a T-sub.
Can creditor's reach assets held under POA?
It depends. If the POA can reach it, the creditor can reach it. If the POA cannot reach it, neither can the creditors
Cite the Rule Against Perpetuities.
Rule: No interest shall vest more than 21 years afer a life in being at time of grant.
What does the rule against perpetuities attempt prevent? Worst or best case scenario?
VESTING of an interest coveyed too far in the future. RAP looks at the worst case scenario--what is the latest an interest could possibly vest.
Cite the Suspension Rule.
For an interest to be valid, there must be identified persons who could together, convey a FSA within 21 yrs after a LIB
What does the Suspension Rule attempt to prevent?
Dead Hand Control. If 2 people cannot combine to create a FSA within 21 yrs after a LIB, gift is void.
What does the Statutory Spendthrift Rule prevent?
income beneficiaries cannot assign or convey their income interest. Thus creditors can attach income (but not corpus)
What does the NY Perpetuities Reform Statute do?
It reforms gifts that would fail under RAP by reducing age contingendcies to 21 years
What are the 4 types of POWERS OF APPOINTMENT?
1. General POA
2. Special POA(also Limited)
3. Presently Exercisable POA(can be combined with general or special)
4. Testamentary POA (can be combined with general or special)
10 steps under the RAP and Suspension Rule Checklist?
1. Identify the interest
2. Determine whether you are "measuring" from date of creation or date of exercise
3. Determine whether 2nd look applies
4. Give the RAP Rule
5. Find an LIB and Run with it.
6. Most Likely apply the New York Reform Statute
7. Give the Suspension Rule
8. Look to see see if there is an income interest in an unborn beneficiary and state that the income interest is void; OR
9. Go further by giving the Statutory Spendthrift Rule, and state that the income interest is void
10. Don't forget to deal with the remainder interests
Absent suspicious circumstances, will extrinsic evidence add meaning to a will?
NO, it is conclusively presumed that T reads his Will and intends its consequences--no claim of mistake will win even if proponent introduces extrinsic evidence.
When can you use extrinsic evidence regarding will construction? (2)
To clarify:
1. Latent ambiguities
2. Patent ambiguities
But never to contradict will terms
When is evidence of a testator's declaration of intent to third parties admissible?
Latent ambiguities. Not Patent ambiguities b/c that would have a 3rd party refuting a term that is clear on its face but mistaken.
What are Conditional wills? What are the opposing rationales for accepting or refusing conditional wills?
Will created in anticipation of a condition (e.g. a trip)
• Probate should be denied bc condition did not occur (nothing happened to T on his trip)
• The trip was merely motive/ inducement for making a Will (dangers T faced caused him to think of death and a need for a Will)
If a couple makes a joint will and one dies, what obligation of the the survivor?
Joint Will is contractual and survivor breaches by writing a Will w/ inconsistent provisions; gifts must persist. in new marriage--old gift go to old kids by K.
What are the hallmarks of testamentary capacity? (4)
1. Understand the nature of the act
2. Does he know the nature and approximate value of his property
3. Does he know the “natural object of his bounty” (know your family members) AND
4. Understand the dispositions (gifts) that T is making
Is testamentary capacity a higher or lower standard than capacity to K?
Testmantary capacity is lower standard--all you need is a moment of lucidity.
Who has the burden of proving undue influence and what must they prove? (3)
Burden of proof on contestant to prove:
1. Existence and exertion of an influence AND
2. Effect of such influence was to overpower the mind and the will of the T AND
3. The product (bequests) would not have happened “but for” that influence
What are the indicia of undue influence? (3) Are they sufficient to prove unde influence?
Circumstantial indicia, alone NOT enough to prove UI:
1. Opportunity to exert influence
2. Susceptibility to influence bc of age or illness
3. Unequal dispositions – fact that some children take less than others or are excluded
What indicia of undue influence is sufficient to prove undue influence?
If Will makes a gift to one in a confidential relationship AND
That person was active in preparing the Will THEN UI
If Will makes bequest to drafting atty, what result?
PUTNAM SCRUTINY, even if no objection is filed--this is an automatic inquiry by surrogate's court
What result if Will names drafting atty as executor?
Atty MUST give written dis-closure to client; Client MUST sign acknowledgment w/ 2 W’s
Failure to comply and atty receives only ½ of statutory commission
What clause in a Will says that if anyone objects to the Will, they get nothing.
No-Contest or “in terrorem” clauses
What is the treatment of in terrorem clauses under NY law? Exceptions?(4)
NY – clause is given full effect EVEN IF probable cause to challenge the Will
Exceptions:
1. Will was a forgery or revoked by a later Will, if Surrogate finds probable cause only
2. Filed for infant or incompetent
3. A proceeding to construe Will terms
4. Objection to the jurisdiction of the Ct
What's the difference between a durable power of attorney and a non-durable POA?
durable will survive grantor's incapacity; non-durable only survives until death or incapacitation
what are the elements to create a health care proxy?(3)
HCP: A durable power of atty which is effective upon incapacitation:
1. in writing
2. signed by the grantor
3. Witnessed by 2 adults
What does a living will determine?(3)
Generally states an individual's wish if in coma:
1. life sustaining support
2. artificial nutrition
3. treatment to alleviate pain