Ny Wills

Front 1

What is a will?

Back 1

1. Instrument that takes effect on death
2. Revocable until death
3. Makes disposition of property
4. Directs how property should be disposed
5. Disposes of testator's body
6. Exercises power of appointment
7. Appoints a fiduciary

Front 2

What is needed for valid execution of a will?

Back 2

EPTL provides:
1. Must be in writing and signed at the end by the testator.
2. Testator must sign in the presence of each witness OR the witness must acknowledge T's previous signature
3. Must be published (declaring to each attesting witness “this is my will”)
4. Must be at least 2 attesting witnesses
5. Witnesses must sign their names with 30 days of each other
6. T must be 18 or older

Witnesses need not sign in the testator’s presence or be present at the same time, but must sign as attesting witnesses.

Front 3

What is a codicil?

Back 3

1. Amendment or supplement to a will that either adds, takes from, or alters the will’s provisions
2. Constructed as part of a will and must be executed with the same formalities.

Front 4

Handwritten Amendments to a Will

Back 4

Hand written amendments to a will are valid if made before the will is signed, published, and witnessed.

A handwritten amendment made after the execution of a will invalid unless it is executed as a codicil.

Front 5

Acceptable Forms of Signature

Back 5

1. Any form of signature or mark by testator is acceptable as long as it is in testator’s own hand.
2. If T has another sign on his behalf, there must be an additional witness (e.g. T, proxy signatory, and two witnesses).

Front 6

Witness who is a beneficiary (interested witness)

Back 6

1. If one of the witnesses is a beneficiary to the will, the gift to that beneficiary is invalid, but the will is still valid.
2. If witness would also be an intestate distributee, witness will take distribution through will OR intestate share, whichever is lesser.
3. If there are 2 separate witnesses aside form interested witness, there is no effect of interest witness. Interested signature is discarded and will is probated with other two witnesses.

Front 7

Mutual Wills

Back 7

1. Generally, contracts to execute mutual wills are enforceable in NY.
2. Agreement must be writing, signed and acknowledge by the party to be charged.
3. Claiming party must not have breached the agreement and have stated in their will the concurrent obligation for one person to name the other in their will.
4. Oral promise is unenforceable.
5. Wills executed in violation will be probated
6. Remedy for violation is to sue for breach.

Front 8

Revocation of Will

Back 8

1. Execution of new will which states it revoked all prior wills
2. Physical act.
3. Modification must be made by codicil or new will. If codicil is inconsistent with only a portion of prior will then only that portion will be revoked.

Front 9

Physical Act Revocation

Back 9

Will may be revoked by a physical act which includes:
1. Any mutilation (tearing, burning, destroying)
2. Physical destruction
3. Alteration of T’s signature.
4. Crossing out the whole will.

Minor physical alteration are not included.
No partial revocation by physical act (all or nothing)
No crossing out one word and adding another (no holographic wills in NY)

Rebutable presumption that a will last seen in T’s possession which is later found mutilated was revoked by physical act.

Front 10

Holographic Wills

Back 10

Not valid in NY unless meet all formalities for regular will.

Front 11

Contest of will/competence.

Back 11

1. Proponent bears burden of proving every element to show the will is invalid.

Front 12

Lack of mental capacity of testator

Back 12

1. T must suffer from an insane delusion which caused him to make a will which ignored the objects of his natural bounty (spouse, children, etc).
2. Insane delusion → not merely irrational behavior but a set of circumstances creating a false reality which exists in T’s “perverted imagination.”
3. Mental capacity must exist only at time of execution of will.

Front 13

No Contest (Interrorum) Clause

Back 13

1. Wholly enforceable in NY.
2. If party bringing litigation loses, he forfeits his share under the will and intestacy.
3. If party wins, will and interrorum clause are invalid.

EXCEPTIONS:
- Representative of an infant/incompetent → will not be held against the infant or incompetent b/c they had no say in deciding to contest.
- Demand accounting or question fiduciary
- Determine T’s intent through construction of a provision
- Surviving spouse’s right of election.
- Challenge to court’s jurisdiction
- Pretrial discovery
- Determination if will was forged (only if probable cause).

Front 14

Ademption

Back 14

1. Testamentary bequest of a unique item
2. Item not in T’s estate at time of death.
3. Beneficiary gets nothing.
4. Gift will NOT adeem if it can be shown that there was a change in form, not of substance (e.g. one car for another).
5. If item was destroyed, beneficiary may take from any insurance payments made AFTER T’s death. If payments made before T’s death → no dice.

Front 15

Demonstrative Legacy

Back 15

General amount from a specific source.

Front 16

General Legacy

Back 16

Money

Front 17

Parole Evidence

Back 17

EPTL allows for parole evidence to determine the intention of T when will is ambiguous on its face.

Front 18

Uniform Simultaneous Death Act

Back 18

If there is no evidence of who died first, it will be assumed the beneficiary predeceased the testator. If husband and wife die simultaneously, it will be presumed that the husband predeceased the wife and the wife predeceased the husband.
STEP 1: Apply USDA and consider beneficiary as predeceasing T (will and intestate)
STEP 2: Apply Anti-Lapse statute for beneficiaries who are brother/sister/issue (wills only)

Applies to property distributions by any means – intestacy, will, joint tenancy, life insurance contract.
NOTE- Tenancy by the entirety → USDA prevents right of survivorship. Property is converted to tenancies in common then pass as though beneficiary predeceased.

Front 19

Anti-Lapse Statute

Back 19

1. Beneficiary predeceases T
2. Beneficiary is a brother, sister, or issue of T
3. Beneficiary has issue who survive T
THEN → gift does NOT lapse but goes to beneficiary’s issue.

Does NOT apply in cases of conditional bequest (e.g. to X if X survives me).

Front 20

Elective Share

Back 20

1. Protects spouse against disinheritance.
2. Spouse may choose elective share of bequest.
3. Elective Share = $50,000 or 1/3 of net estate. Net estate = Total of T’s estate + any TSubs
4. From net estate take 1/3.
5. From 1/3 subtract anything passing in the will to the spouse to arrive at total.
6. Other beneficiaries must contribute pro-rata to elective share. (pro rate = based on their share of will).
7. Must choose to take elective share or not w/in 6 months of probate or 1 year of death.

Spouse is disqualified if before T’s death, they were divorced, there was a separation decree filed, surviving spouse abandoned T, surviving spouse failed to support T.