Ny - Wills

Front 1

What is a person's "issue" for the purposes of intestacy?

Back 1

All persons who have descended from a common ancestor, including those in direct line of inheritance w the decedent (i.e. children, grandchildren)

Front 2

What is the order of priority for appointment as administrator of an intestate estate?

Back 2

1) Surviving spouse
2) Children
3) Grandchildren
4) Parent
5) Siblings

Front 3

What is the distribution of an intestate estate where the Decedent is survived by spouse and no children?

Back 3

surviving spouse takes the whole estate

Front 4

What is the distribution of an intestate estate where the Decedent is survived by children only (none predeceased)?

Back 4

If the decedent is survived by children only (and no child has pre-deceased the decedent): passes to the children in equal shares

Front 5

What is the distribution of an intestate estate where the Decedent is survived by children and issue of predeceased children?

Back 5

Passes to the alive children and the issue of the dead children by representation (per capita at each generation)

Front 6

What is the distribution of an intestate estate of the decedent is not survived by a spouse or issue?

Back 6

1) All to parents or surviving parent
2) If not survived by parents: all to issue of parents (i.e. siblings and issue of deceased siblings)

Front 7

What is per stirpes distribution?

Back 7

In intestacy, the issue of a predeceased child takes the share that the predeceased child would have taken, if alive, and divide it equally

Front 8

What are the intestate rights of an adopted child?

Back 8

Full inheritance rights from the adopting family (and vice versa)

No inheritance rights from natural parents or other members of the natural family

Front 9

When does an adopted child have intestate rights from their natural parents?

Back 9

1) adopted by spouse of a birth parent

2) adopted by relative

Front 10

What are the intestate rules re: inheritance by a child adopted by a relative?

Back 10

If the adopted child is related to the decedent by both a birth relationship and an adopted relationship, the child inherits under the birth relationship

But: if decedent was the adopting parent → adopted child inherits under the adoptive relationship

Front 11

What is the rule re: inheritance of a non-marital child from the mother's family?

Back 11

A nonmarital child has full inheritance rights from the mother’s family

Front 12

What is the rule re: inheritance of a non-marital child from the father's family?

Back 12

A nonmarital child inherits from the birth father only if paternity is established by one of the following tests:
1) Father marries the mother after child’s birth
2) An order of filiation in a paternity suit is entered adjudicating the man to be the child’s father
3) The father files a witnessed and acknowledged (before a notary public) affidavit of paternity w the Putative Father Registry
4) Clear and convincing evidence (after death)
5) A blood genetic marker test, AND clear and convincing evidence (after death)

Front 13

What 5 situations will disqualify intestate distributions by a spouse?

Back 13

1) final divorce or annulment
2) invalid divorce (procured by surviving spouse)
3) final separation decree (not agreement)
4) marriage is void
5) abandonment or lack of support (by surviving spouse)

Front 14

How does intestacy proceed if a surviving spouse is disqualified by divorce etc?

Back 14

Assume the surviving spouse predeceased the decedent spouse, and drop the shares to the children (or next in line)

Front 15

What is the NY rule re: advancements of intestate shares?

Back 15

No advancement unless proven by:
1) Contemporaneous writing made that the time of the gift, AND
2) Signed by the donor or donee

Front 16

How do you calculate intestate shares if there has been an advancement?

Back 16

Step 1: Add the value of the advancement property to the value of the estate

Step 2 :Divide this number by the number of children

Step 3: Subtract the value of the advancement from the child who received the advancement

Front 17

How is a disclaimer of intestate property handled?

Back 17

Rule: The person who disclaimed is considered to have predeceased the decedent

Front 18

What are the requirements of a valid disclaimer of intestate property?

Back 18

1) In writing, signed and acknowledged (before a notary public)
2) Accompanied by a separate affidavit stating that no consideration was received for disclaiming
3) Irrevocable
4) Filed w the Surrogate’s Court w/in 9 months after the date of death

Front 19

What are the 7 requirements of a duly executed will?

Back 19

1. Must be 18
2. Signed by testator or by someone at the testator’s direction and in her presence
3. Testator’s signature must be at the end thereof
4. Testator must sign the will or acknowledge his signature in the presence of each witness
5. Publish the will
6. Must be at least two attesting witnesses
7. Execution ceremony must be completed within 30 days, which starts to run when the first witness signs

Front 20

What is an attestation clause? What is its probative value?

Back 20

Appears below the signature line and above the witness’s signature lines, and recites all the elements of execution

Clause is prima facie evidence of the facts presented (but not a substitute for live testimony)

Front 21

What is a self-proving affidavit?

Back 21

Witnesses sign sworn statements in the presence of an attorney that recites all statements they would make if called to testify in court re: execution of a will.

Unlike an attestation clause, a self-proving affidavit is a substitute for the live testimony of the witnesses

Front 22

When is a will admissible to probate on the strength of a self-proving affidavit?

Back 22

iThe 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

Front 23

What is the effect on the validity of a will if a witness is also a beneficiary?

Back 23

Validity of the will is not affected

Front 24

What is the effect on the validity of a gift to a witness of the same will?

Back 24

Bequest to the witness is void unless:
1) at least 3 witnesses signed, and two were disinterested, or
2) Interested witness would be an intestate distributee if the testator died w/o a will (witness takes lesser of will/intestate)

Front 25

What is the Foreign Wills Act?

Back 25

A will is admissible to probate in NY if it was validly executed under:
1) The law of the state where the will was executed, regardless of the testator’s domicile at the time
2) NY law, or
3) The law of the state where the testator was domiciled, either when the will was executed or at death

Front 26

When are holographic/nuncupative wills valid in NY?

Back 26

1) Valid for members of the armed forces during declared or undeclared war (but void one year after discharge) and mariners at sea (but void three years after discharge)

2) Valid if ok under Foreign Wills Act

Front 27

Can an intended beneficiary of a will sue the drafting lawyer for malpractice?

Back 27

No

Front 28

In what two ways may a will be validly revoked?

Back 28

1) Subsequent testamentary instrument executed w appropriate formalities, or
2) Physical act + intent

Front 29

What is the effect if a person has two wills with inconsistent provisions, and neither will has been revoked?

Back 29

To the extent possible read, two separate wills by the same testator together. The second will is treated as a codicil to the first will, and only revokes the first will to the extent there are inconsistent provisions

Exception: If the second will is wholly inconsistent w the first → first will is revoked by implication

Front 30

What is the presumption when a will that was last seen in the testator’s possession or control is not found after death?

Back 30

Presumption that the testator revoked by physical act

Front 31

What is the presumption when a will that was last seen in the testator’s possession or control is found in a damaged condition?

Back 31

Presumption that the testator was the one who revoked it

Front 32

In what two ways can a person make changes to a will?

Back 32

1) Write a new will that revokes the first one, or
2) Make a codicil changes parts of it

Front 33

Does NY recognize the doctrine of partial revocation by physical act?

Back 33

No

Front 34

In what two ways can a first will that was later revoked by a second will be revived?

Back 34

1) re-execution
2) republication by codicil

Front 35

What is dependent relative revocation? What are the requirements? What is its validity in NY?

Back 35

Permits a revocation of a later will to be disregarded; the effect would be to permit probate of the later will

Requirements
1) Testator’s revocation must be premised or dependent upon a mistake of law (i.e. that revocation of the will validates the prior will)
2) The disposition that results from disregarding the revocation of the later will must come close to the dispositions the testator intended when he attempted to revive the earlier will

Validity in NY: unclear, argue both sides

Front 36

What is required for application of the Lost Wills Statute?

Back 36

Lost Will proponent must prove that:
1) The lost or later will was duly executed
2) The lost or later will was not revoked
3) The will’s provisions are clearly and distinctly proven by each of at least two credible witnesses, or by a copy or draft of the will proved to be true and complete

Front 37

What is the general rule re: the death of a beneficiary during the testator's lifetime?

Back 37

General rule: If a beneficiary dies during the testator’s lifetime, the gift to the beneficiary lapses (fails), unless it is saved by the anti-lapse statute

Front 38

What are the requirements/effect of the Anti-Lapse Statute?

Back 38

The gift to a predeceased beneficiary does not lapse, but vests in the deceased beneficiary’s issue if:
1) Predeceased beneficiary was the testator’s issue, brother, or sister, and
2) Predeceased beneficiary leaves issue who survive the testator

Front 39

When does a class close for the purposes of determining the beneficiaries of a class gift?

Back 39

The class closes at the time a distribution to the class must be made (rule of convenience)

Front 40

What is the general rule of the Revised Uniform Simultaneous Death Act?

Back 40

If 2 people die w/in 120 hours (5 days) of each other, presume that each outlives the other in figuring out how to distributed property

Front 41

How does the Revised Uniform Simultaneous Death Act apply to jointly held property?

Back 41

Jointly held property passes as though each co-owner survived the other

i.e. Property passes as though a tenancy in common was involved, not a survivorship property

Front 42

What is the the effect on a will if the testator unmarries?

Back 42

If the court renders a final decree of divorce, annulment, or separation, after the execution of a will, all gifts and fiduciary appointments in favor of the former spouse are revoked by operation of law

Treat as if spouse pre-deceased testator

Front 43

What is the effect if the testator unmarries after creating a will, but has appointed the former spouse as a guardian of the children?

Back 43

Guardianship is valid

Front 44

What is a pretermitted child?

Back 44

Child born or adopted after the will is executed

Front 45

What kinds of pretermitted children does the EPTL protect?

Back 45

EPTL only protects pretermitted children who are
1) Not provided for by any settlement, and
2) Neither provided for nor mentioned in the will

Front 46

What does a pretermitted child inherit if the testator had one or more children when the will was executed, and no provision is made for any children in the will?

Back 46

The pretermitted child inherits nothing

Front 47

What does a pretermitted child inherit if the testator had one or more children when the will was executed, and the will made gifts to the other children?

Back 47

The pretermitted child shares in the amount with the other children as if a class gift was made

Front 48

What does a pretermitted child inherit if the testator had one or more children when the will was executed, and it appears that the testator’s intention was to only make a limited provision to the children living at the time the will was executed?

Back 48

The pretermitted child takes his intestate share

Front 49

What does a pretermitted child inherit if the testator had one or more children when the will was executed, and the will devises a different amount to each child?

Back 49

Step 1: add the amounts together

Step 2: divide by the number of children, including pretermitted children

Step 3: each pretermitted child gets the above share, to be taken proportionally

Front 50

What does a pretermitted child inherit if the testator had no children when the will was executed?

Back 50

Pre-termitted child takes intestate share

Front 51

What is the effect of words of disinheritance in a will?

Back 51

They are given full effect

Front 52

What is the NY rule re: satisfaction of legacies?

Back 52

No satisfaction of legacy unless proved by:
1) Contemporaneous writing made at the time of the gift, and
2) Signed by the donor or donee

Front 53

What is the NY rule re: incorporation by reference in a will of an extrinsic document?

Back 53

NY does not recognize incorporation by reference. Everything must be duly executed (7 part test)

Front 54

What is the effect of a non-testamentary act?

Back 54

Acts performed by the testator after the will is executed which have a purpose or motive independent of any testamentary purpose are given full effect when distributions are made

Front 55

What is a demonstrative legacy?

Back 55

A general amount gift in will, where the testator designates a specific source from which the amount is to be paid from

Front 56

What is a general legacy?

Back 56

A general amount gift in a will

Front 57

What is abatement? When will gifts abate?

Back 57

Abatement: not giving effect to gifts so that creditors’ claims can be satisfied

If there are more claims against the estate than there are assets to cover all gifts made under the will, gifts under the will abate

Front 58

What is the order of abatement?

Back 58

Absent a provision in the will, the order in which a testator’s property abates is:
1) Intestate + residuary, then
2) General legacies, then
3) Demonstrative legacies, then
4) Specific gifts

Front 59

What is ademption?

Back 59

If a testator makes a specific gift of property, and the property cannot be found or is no longer owned by the testator at the time of her death, the gift fails under the doctrine of ademption (w/o regard to the testator’s probable intent)

Front 60

Do demonstrative legacies adeem?

Back 60

No

Front 61

What are the three exceptions in which specific gifts will not adeem?

Back 61

1. Insurance proceeds for lost, damaged, or destroyed property (if paid after death

2. Proceeds received under an executory contract (if paid after death)

3. Proceeds from a guardian or conservator’s sale of specifically bequeathed property (if they can be traced)

Front 62

In NY, are liens on specific bequested property exonerated?

Back 62

No, unless expressly provided for in the will

Front 63

What is the classification of a gift of stock in a publicly traded company (i.e. general, specific, etc). Do they adeem? What is the exception to this rule?

Back 63

Gifts of shares of stock in publicly-traded corporations are general gifts, and they do not adeem

Exception: Gifts of shares of stock in publicly-traded corporations are specific gifts if the testator bequeaths “my X stock”

Front 64

What is the classification of a gift of stock in a closely held company (i.e. general, specific, etc). Do they adeem?

Back 64

Gifts of shares of stock in closely-held companies are specific gifts, and adeem if they do not exist

Front 65

What is the classification of a gift of stock in a publicly traded company where there has been a stock split? (i.e. general, specific, etc)

Back 65

Gifts of shares of stock where a stock split occurs are treated as a specific bequest for purposes of the split

Front 66

What is a non-probate asset? What are the categories of non-probate assets?

Back 66

Non-probate assets are interests in property that are not subject to disposition under the will or via intestacy

b. Categories of non-probate assets

1) Property passing by right of survivorship

2) Property passing by contract

3) Property held in trust

4) Property over which the decedent held power of appointment

Front 67

What is a spouse's elective share?

Back 67

Elective share = the greater of
1) $50K, or
2) 1/3 of the estate

Front 68

What are the testamentary substitutes?

Back 68

1) totten trusts
2) survivorship estates
3) lifetime transfers w/ strings attached
4) employee pension, profit-sharing, and deferred compensation
5) Gifts made w/in 1 yr of death (causa mortis, or > $13K)
6) US gov bonds
7) Powers of appointment

Front 69

For the purposes of testamentary substitutes, what is the value of a survivorship estate involving the testator and a third party?

Back 69

Consideration furnished test

Front 70

For the purposes of testamentary substitutes, what is the value of a survivorship estates involving the testator and the surviving spouse?

Back 70

1/2 is a T-sub

Front 71

For the purposes of testamentary substitutes, what is the value of a survivorship estate created before the marriage involving the testator and a third party?

Back 71

1/2 is a T-sub

Front 72

How is a spouse's elective share satisfied?

Back 72

Paid pro rata from the other beneficiaries/distributees

Front 73

What is the effect of an trust/life estate on a spouse's elective share?

Back 73

No effect. A life estate or trust will not satisfy the surviving spouse’s elective share entitlement.

Effect on the trust if the spouse files for an elective share: Read the trust as though the surviving spouse pre-deceased the testator, as though there was no life estate in the surviving spouse

Front 74

How can an elective share be waived?

Back 74

The right of election can be waived, w/ or w/o consideration, in a writing, signed and acknowledged before a notary public

Front 75

Who generally has a right to an elective share (j/d)?

Back 75

Any spouse of a decedent domiciled in NY at the time of death has a right of election

Front 76

What circumstances will disqualify a spouse from taking an elective share?

Back 76

1) divorce
2) invalid divorce
3) separation decree
4) marriage is void
5) abandonment and lack of support

Front 77

What is a general power of appointment?

Back 77

Donee can appoint to herself, creditors, or her estate

Front 78

What is a special power of appointment?

Back 78

Donee cannot appoint to herself

Front 79

Does a general residuary clause in a will serve to properly exercise a power of appointment?

Back 79

Yes, unless:

The donor called for its specific reference in the donee’s will

Front 80

What type of power of appointment is a testamentary substitute?

Back 80

General presently exercisable POA

Front 81

What type of power of appointment can the donee's creditors reach?

Back 81

General presently exercisable POA

Front 82

What are the three general steps to determine whether a POA violates the RAP or Suspension Rule?

Back 82

1) Identify the POA
2) Is the power itself valid?
3) Are the interests created by the power valid?

Front 83

What is required in order for a special POA or general testamentary POA (i.e. the power itself) to be valid under the RAP?

Back 83

To be valid under the RAP, a special POA or general testamentary POA must be certain to be exercised w/in LIB + 21

Front 84

What is required in order for the interests created by exercising a special POA or general testamentary POA (i.e. the power itself) to be valid under the RAP?

Back 84

To be valid, interests created by the exercise of a special POA OR a general testamentary POA are measured from the date of the instrument creating the POA, and NOT the date the power was exercised

Front 85

Does the second look doctrine apply to POAs?

Back 85

Yes

Front 86

What is required in order for a general presently exercisable POA (i.e. the power itself) to be valid under the RAP?

Back 86

To be valid, a general presently exercisable POA must be certain to be acquired w/in LIB + 21

Front 87

What is required in order for the interests created by exercising a general presently exercisable POA (i.e. the power itself) to be valid under the RAP?

Back 87

a. To be valid, interests created by the exercise of a power of appointment that is both general and presently exercisable are measured from the date of the instrument exercising the powers (not from the instrument creating the power)

Front 88

What is the rule re: possible mistakes (not ambiguities) in a will?

Back 88

Absent suspicious circumstances, it is conclusively presumed that the testator read that will and intended its consequences

Front 89

What is a latent ambiguity? What kind of evidence is admissible to determine the meaning of the ambiguity?

Back 89

A latent ambiguity is a misdescription. The error is not evidence by looking at the will

The following extrinsic evidence is admissible:
1) Facts and circumstances evidence
2) Evidence of the testator’s declarations of intent to third parties
3) Evidence of the testator’s statements to the atty who prepared the will

Front 90

What happens if extrinsic evidence cannot cure the ambiguity in a gift?

Back 90

The gift fails

Front 91

What is patent ambiguity? What types of evidence are admissible to determine the meaning?

Back 91

A patent ambiguity is an obvious error on the face of the will

Admissible evidence:
1) Facts and circumstances evidence
2) Evidence of the testator’s statements to the atty who prepared the will is admissible

Front 92

How can a contract to make a will or not to revoke a will be established?

Back 92

A contract to make a will or not to revoke a will can only be established by express statement of intent that the will’s provisions are intended to constitute a contract between the parties

Front 93

What happens if a joint will is a contractual will and the survivor breaches the contract by executing a later will w inconsistent provisions?

Back 93

Step 1: probate the new will

Step 2: impose a constructive trust in favor of the original intended beneficiaries

Front 94

What is required in order for a testator to be competent to create a will?

Back 94

1) Understand the nature of the act
2) Know the nature and approximate value of his property
3) Must know his family members and loved ones
4) Understand the dispositions he was making

Front 95

What must a will contestant prove to establish undue influence on the testator?

Back 95

The will contestant has the burden of proving:
1) Existence of an influence
2) Effect of such influence was to overpower the mind and will of the testator, and
3) The product is a will/gift which would not have happened but for that influence

Front 96

When will there be an inference of undue influence on a testator?

Back 96

A will contestant can satisfy his burden of proof by an inference of undue influence if:
1) The will makes a gift to one in a confidential relationship, and
2) Person was active in preparing the will

Front 97

What is the effect of a no-contest (in terrorem) clause? What are the exceptions?

Back 97

Given full effect, even if there was probable cause to challenge the will

Exceptions
1. Will contest is claiming forgery, or that the will was revoked by a later will
2. Will contest is filed on behalf of an infant or incompetent
3. Construction proceeding to construe the will’s terms
4. Objection to jurisdiction