W & E

Front 1

NY Governing Law

Back 1

● Estates Powers & Trust Law (EPTL)
● Surrogate’s Court Procedure Act (SCPA)

Front 2

Steps in processing will

Back 2

● Administration proceeding: Proceeding to appoint a personal representative, also known in NY as an administrator, to administer the estate of a person who dies without a will.
● Probate: Proceeding to administer the property of a person who dies with a will. In probate:
oIt is judicially determined that decedent died w/ validly executed will and his intestate distributees are determined (to put them on notice of a Will); AND
oPersonal representative named in the Will, also known as an executor, is appointed by the court to administer the decedent’s estate.

Front 3

Intestacy: when applied

Back 3

o Decedent left no Will or left Will that wasn’t properly executed.
o Will does not make a complete disposition of the estate (partial intestacy), typically due to the fact that there was poor drafting by attorney; or
o Intestate distributee successfully challenges the Will, and Will is denied probate.

If no Will, administrative proceeding is started by intestate distributee to be appointed as administrator of the estate.

Front 4

Intestacy: order of priority for administration

Back 4

o surviving spouse
o children
o grandchildren
o father or mother
o brothers or sisters
o any other distributee

Front 5

Intestacy: rules when survived by... (spouse, kids)

Back 5

(1) Spouse and no kids: spouse takes whole estate.
(2) Spouse and kids (whether kids are from this marriage or an earlier one): Spouse takes 50K + 1/2 residuary, Issue take: leftover balance of the estate (could be Ø)(3) Kids only: If kids are alive, passes to the kids in equal shares
(4) Kids and issue of predeceased Kids Passes to the alive kids or the issue of the dead children by “representation” or “per capita at each generation.”
(5) Intestate decedent not survived by spouse or issue (same as administration order - parents, issue of parents)

Front 6

Intestacy: Spouse is disqualified from taking her intestate share

Back 6

Think D.I.S.M.A.L.

o Divorce: final decree of divorce or annulment valid under NY law.
o Invalid divorce procured by surviving spouse: surviving spouse procured, outside of NY, divorce or annulment not recognized as valid under NY law (This is a one way street rule: doesn’t bar surviving spouse if deceases spouse procured invalid divorce or annulment.)
o Separation decree against surviving spouse: doesn’t bar spouse if it was rendered against deceased spouse. Doesn’t apply to separation agreements unless specific language in the agreement waiving one’s rights under the EPTL.
o Marriage is void as incestuous or bigamous.
o Abandonment or Lack of support: surviving spouse abandoned or refused to support deceased spouse.

If any present, treat spouse as predecesased

Front 7

INHERITANCE RIGHTS OF ADOPTED CHILDREN

Back 7

-Adopted children (and their issue) have full inheritance rights from adopting family, NONE from natural
-UNLESS adopted by spouse of a natural parent (keeps inheritance as to all)
-BUT if adopted by natural relative, keeps only NATURAL inheritance rights, unless ADOPTER dies, then only through ADOPTER

Front 8

INHERITANCE RIGHTS OF NOMARITAL CHILDREN

Back 8

Nonmarital child has FULL inheritance rights from mother, AND

...from father only if paternity is established via:
-birth Legitimated by marriage
-Order of filiation during father's lifetime
-Father files affadavit of paternity with Putative Father Registry; or
-After death, paternity established in probate proceeding by: Clear & convincing evidence; and openly & notoriously acknowledge child...Support by itself not enough, DNA plus clear and convincing evidence, unless DNA is not rebutted.

Front 9

Lifetime Gifts

Back 9

-At common law, "advancements" from testator to beneficiaries were viewed as presumptively in partial or total satisfaction of the legacy, to be applied against probate share amt

NY has rejected the “satisfaction of legacies” presumption by statute. In NY, such a gift not treated as a “satisfaction of legacy” unless proved by:
1) Contemporaneous writing made at the time of the gift. (Watch out for non-contemporaneous advancements.)
2) Signed by the donor or donee.

Front 10

Disclaimer/Renunciation by Beneficiary

Back 10

● No one can be compelled to be a beneficiary under a Will or to take property by operation of law. Beneficiary under a Will or intestate distributee can disclaim or renounce (in whole or in part) their interest in the decedent’s estate.
● Effect: person is considered to have predeceased testator
● Requirements to be valid disclaimer:
o Must be in writing, signed, and acknowledged (before notary public); AND
o Must be accompanied by separate affadavit that states no consideration was received and no one paid you to disclaim; AND
o Must be irrevocable; AND
o Disclaimer or renunciation must be filed with Surrogate’s Court within 9 months after date of death.
● Disclaimer can’t reduce another beneficiary’s share, so if kids would have inherited from disclaiming person, they take.
● Reasons to disclaim inheritance or testamentary gift:
o To avoid taxes;
o To avoid creditor’s claims.
● Medicaid: person cannot disclaim in order to remain eligible for Medicaid.

Front 11

Execution of Wills: Requirements

Back 11

-Must be 18 years old to have capacity.
-must be signed by testator at the end of the document OR at Testator’s direction and presence (requires aide to sign her name; Cannot be counted as attesting witnesses; and incl. address (affix failure doesn’t nix))
-signed (or acknowledged) in presence of at least 2 attesting witnesses
-publish the will (declare the document to be her last Will and Testament; declare to witnesses
-execution ceremony completed w/in 30 days.

Codicil (later amendment or supplement) requires same

Front 12

Execution of Wills: NY distinctions on requirements

Back 12

does NOT require (as some other states do) that:
o Witnesses sign in each other’s presence.
o Witnesses sign in the testator’s presence.
o BUT the T must sign or acknowledge her signature in the presence of the witnesses - not ok if T forgot to sign when witness signed and added his later

Front 13

Execution of Wills: Effect of some possible failings

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-Will not signed at end: admissible to probate; after signature text has no effect...BUT Entire Will invalid if add'l matter material so defeat intent
-Signature barely legible: any mark ok; X sufficient
-T’s hand guided when signed: Ok if voluntary
-Witness signed 14 days after first witness: ok, as long as w/in 30 days.
-T didn’t sign in Witnesses’s presence: ok as long as he acknowledged earlier one then.
-Will handwritten: OK

Front 14

Execution of Wills: Lawyer malpractice

Back 14

If lawyer negligently prepared a will such that it cannot be probated, and beneficiaries lose what they would have gotten under the will, those erstwhile beneficiaries have no cause of action against lawyer b/c no privity of K with him. The duty runs only to the client who contracted for lawyer’s services.

Front 15

Execution of Wills: Proving due execution

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Burden of proof on person offering the will for probate, usually Executor

If will is not self-proved (see below), both attesting witnesses must testify -
-If one unavail., one testimony OK
-If none avail., Will proponents must signatures

Attestation Clause: prima facie evidence of facts; not legally required; It appears below T’s signature line and above witnesses’ signature lines and recites all the elements of due execution

Self-proving affadavit: sworn statement signed by witnesses in presence of att’y that recites all statements they would make if called to testify; Can be signed at any time after the will is executed.

NOTE: Unlike Attestation Clause, substitutes for live testimony of the witness.

Front 16

Interested Witness Statute

Back 16

● Will beneficiary can be an attesting witness BUT bequest to the witness is void unless:
(1) Supernumerary rule: at least 3 witnesses, 2 disinterested; OR
(2) **Interested witness would be intestate distribute - “whichever is least” rule applies.

Purpose: to avoid fraud
Note on executor: executors earn compensation N/A

Front 17

FOREIGN WILLS ACT

Back 17

Will is admissible to probate in NY if valid under(think E.N.D.):
-state law where EXECUTED, regardless of testator’s domicile; OR
-New York Law; OR
-Law of state where testator was Domiciled, either when the Will was executed or at death.

Front 18

HOLOGRAPHIC and NUNCUPATIVE WILLS

Back 18

● Holographic will: Will entirely in T’s handwriting that is signed but not witnessed.
● Nuncupative Will: oral will

Both are void in NY, except for members of armed forces during declared or undeclared war (expires 1 year after discharge), and mariners at sea (expires after 3 years)

Front 19

Revocation: Requirements

Back 19

-By operation of law: subsequent divorce or annulment revokes disposition to former spouse

-By subsequent testamentary instrument, executed w/ appropriate formalities; express revocation - will revoked to the extent stated in subsequent instrument

-By physical act...
by proxy: physical act by another person if 1) at testator’s request; 2) in testator’s presence; 3) witnessed by 2 or more
Not enough to just write “void” at the bottom of each page, BUT anything done to cancel signature shows intent to revoke all
accidental destruction of will does not revoke it, even if testator later decides he wants to revoke it, b/c intent to revoke must at the time of act

Front 20

Revocation: Presumptions

Back 20

1) Where Will that was last seen in T’s possession or control is not found after death: the presumption is that T revoked the will by physical act.
2) Where Will was last seen in T’s possession or control is found mutilated after T’s death (e.g. torn in two), the presumption is: T revoked the will by physical act.

BUT, if Will was last seen in possession of someone adversely affected by its contents, these presumptions don’t arise...AND evidence is admissible to rebut the presumption of revocation where the Will cannot be found or is found in damaged condition.

Front 21

Revocation/Changes on face of Will in NY

Back 21

Only 2 ways to change in NY:
1) Write a new Will which revokes the 1st one.
2) Make a codicil changing only parts of first Will

Both need to be properly executed under 7 point test

Words added to the will after signed and witnessed are disregarded BUT changes and cross-outs made immediately before testator signed and witnesses witnessed are valid b/c they are duly executed

NY doesn't recognize partial revocation by physical act

Front 22

Revival of revoked wills

Back 22

If A revoked by later will B, A cannot be revived by destroying B; REQUIRES
(1) Re-executed; or
(2) Republished by codicil

BUT Dependent Relative Revocation (DRR) might apply!
-Common law doctrine permits revocation to be disregarded when premised upon mistake of law (thought reinstated A)
-disregards revocation of B!!
-Doesn't apply if schemes are totally different
-unclear if applies in NY

Front 23

Proof of Lost Wills statute

Back 23

Lost or destroyed will may be admitted to probate only if:
1) Due execution must be proved (as in any case); AND
2) must be established that the Will was not revoked (“lost will” proponent must overcome revocation presumption of non production; or that the revocation should be disregarded b/c of DRR)
3) All provisions in 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.

NOTE: If will suppressed or destroyed by one who would benefit under a prior will or intestacy, & “lost” will cannot be proven, remedy is constructive trust in favor of intended beneficiaries.

Front 24

DEATH OF BENEFICIARY DURING TESTATOR’S LIFE: NY Anti-Lapse Statute

Back 24

Normally gift “lapses” BUT statute provides that gift vests in deceased beneficiary’s issue if:

-Predeceased was T’s issue or brother or sister; AND
-Predeceased beneficiary's issue survives testator

NOTES: NOT for estate but ISSUE; if will said “To Bob, if he survives me,” this trumps anti-lapse; if adopted out of family, kids still take

Anti-lapse trumps “surviving residuary beneficiaries rule" but LOSES to class gift determination at death (implied that class is DEFINED by those alive at death) [CHECK THIS!]

Front 25

DEATH OF BENEFICIARY DURING TESTATOR’S LIFE: Lapse in Residuary Gift

Back 25

If testator’s RESIDUARY estate is:
-Devised to 2 or more persons; and
-The gift to one of them fails for any reason; and
-The anti-lapse statute does not apply

Then the other residuary beneficiaries take the entire residuary estate, in proportion to their interest in the residue, absent contrary will provision

In other words, Anti-lapse trumps “surviving residuary beneficiaries rule.”

Front 26

Class Gifts

Back 26

-In determining takers, you read the will as of the testator’s death
-Subject to gestation principle (presumed 280 days)
-In gift of life estate or income interest w/ remainder to class, class closes at death of life tenant or income beneficiary

Front 27

Uniform Simultaneous Death Act (USDA)

Back 27

if 2 persons die such that there's insufficient evid. that they died other than simultaneously, prop. of each distributed as though he or she survived; presume each outlived the other
-if applied to jointly held property, becomes TENANCY IN COMMON for devising purposes
-autopsy PROOF may cicumvent

Front 28

Changes in Testator's family after execution: spouse

Back 28

T marries post-execution: NO EFFECT on a Will b/c NY provides for “right of election” so can’t disinherit spouse.

T Divorced or Annuled post execution: all gifts and fiduciary appointments in favor of former spouse revoked by operation of law; will read as if spouse predeceased T

NOTES: anti-lapse not applied to spouse; gifts to kids not impacted; N/A to life insurance, just will; Appointment of former spouse as guardian of kids not affected; if reconcile and remarry provisions restored.

Front 29

Changes in Testator's family after execution: Child Born or Adopted

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EPTL gives no protection to children alive at execution, unprovided for (life ins. counts) afterborn and after-adopted

If T had 1+ kids at exec.
-no provision made for any, afterborn inherits nothing
-gifts to other children, afterborn child shares as if a class gift was made.
-If the kids are given different amounts, then you add the amounts and divide by kids, incl. afterborn
-If T's intent was to make limit provision only to kids living at execution, afterborn gets intestate share

If testator had no kids at execution, afterborn takes intestate share.

Front 30

Testamentary Gifts Problems: Reference to Facts and Events Outside the Will

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-Incorporation by Referenc: NY doesn't recognize doctrine allowing extrinsic documents incorp. into Will

-Acts of independent significance (“non-testamentary acts”): acts after the Will is executed given full effect when distributions made, BUT phys. movement of title documents—deeds, stock certificates, bank passbooks are exempted b/c transferred as mandated by law.

-Non-probate assets: prop. interesst not part of probate estate; often property...
o Passing by right of survivorship (e.g. bank account, joint stock account, etc.)
o Passing by Contract, e.g. life insurance policy, employee benefits payable to beneficiary other than decedent or decedent’s estate; If paid to insured’s executor or insured’s estate, is “probate asset”
o Held in Trust: trust terms govern disposition
o Over which Decedent held Power of appointment

Front 31

Classification of will gifts

Back 31

● Specific Gift: “I devise Blueacre (my Dell computer) to my son John.”
● Demonstrative legacy: general amount from a specific source. E.g. “I bequeath 5K to be paid from the proceeds of the sale of IBM stock, to Donna.” It’s demonstrative b/c says it’s from IBM stock.
● General legacy: “I give 50K to George.” “I give 100 shares of Kodak common stock to my brother Daryel.”
● Residuary disposition: “I give all the rest, residue and remainder of my estate to my brother Jim.”
● Intestate Property: If partial intestacy results b/c Will was poorly drafted and Will has no residuary clause: “I give 50K to my friend Frank,” who is now dead. Then it goes to intestacy b/c no anti-lapse statute applies here.

Front 32

PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS: ABATEMENT Def'n

Back 32

When there are so many claims against the estate that there aren’t enough assets to cover all the gifts made by the Will, the gifts under the will “abate,” meaning they are not given effect so that creditors’ claims can be paid.

Front 33

PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS: ABATEMENT Order

Back 33

Absent Will provision, the order is as follows:
o intestate property
o residuary disposition
o general legacy
o demonstrative legacy
o specific gift
o items that qualify for estate tax marital deduction

Debts and expenses paid out of intestate & residuary prop; If still debts, general legacies abate pro-rata; then demonstrative legacies pro-rata; then specific legacies pro-rata.

Front 34

PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS: Specific Gift of Encumbered Property

Back 34

no exoneration of liens

● At common law, if T made specific bequest of property subject to mortgage or other lien on which T was personally liable, then beneficiary entitled to have lien “exonerated” (i.e. paid from residuary)
● By statute in NY: liens on specifically devised property NOT exonerated unless will directs it
● General will provision for payment of debts is NOT sufficient indication or lien exoneration

Front 35

PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS: ADEMPTION Def'n

Back 35

Failure of a gift; If Will makes specific gift of property, and the property cannot be found or is not owned by the testator at her death, the gift fails without regard to testator’s probable intent

Note: does not apply to general and demonstrative legacies; Demonstrative legacy turns into general

NOTE: applies only to proceeds paid after death

Front 36

PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS: ADEMPTION Statutory Exceptions

Back 36

(1) Casualty insurance proceeds for lost, damaged, or destroyed property: beneficiary takes insurance proceeds to the extent that they are paid after death.
2) Executory Contract: (this is a K that hasn’t been performed) Benef. gets sale proceeds paid after death.
3) Sale by guardian or conservator of specifically bequeathed property: Beneficiary is entitled to receive $ or prop. into which the proceeds from the sale or transfer can be traced; If proceeds can’t be traced, ademption applies.

Front 37

PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS: ADEMPTION As relates to stock

Back 37

(1) Gifts of shares of stock in publicly traded corporation (for ademption purposes) are general legacies unless T says “I give my X shares of my Y stock” which evidences an intention to make a specific bequest; then, will adeem.

NOTE: Stock split, the bequest of stock is treated as a specific bequest whether or not a possessive pronoun (“my”) was used, and whether publicly traded or closely held stock is involved.

NOTE: if a company is acquired by another in a friendly takeover, the change is in form and not substance (the stock is still directly traceable).
(2) Gifts of shares of stock in closely held corporation are: always specific bequests.

Front 38

PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS: Mistake, ambiguity

Back 38

Generally, plain meaning adhered to, and don't use extrinsic evidence absent suspicious circumstances.

● Latent ambiguity: Extrinsic evidence admissible to clarify or find meaning of T’s words.
(e.g., facts and circumstances; T's decl. of intent to 3d parties; T's statements to attorney who prepared the will)
If extrinsic evid. doesn’t cure ambiguity, GIFT FAILS

● Patent ambiguity: Extrinsic evid. generally admissible (incl. facts and circumstances, T's statements to attorney; Does NOT incl. T's declarations of intent to 3d person

Front 39

PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS: Conditional will (not likely tested)

Back 39

if Will specifies condition for will to take effect (e.g. “If anything happens to me on the trip I’m about to take, I leave all my property to ...), and this doesn’t happen (e.g. he dies in a plane crash 3 years later), you could deny probate b/c the condition didn’t occur.
o However, you could also say that the reference to the trip merely reflected the motive or inducement for making a Will.
o So...if this comes up, we argue both ways.

Front 40

PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS: Contracts Relating to Make a Will

Back 40

● A Contract to make a will or to not revoke a will can be established by express statement in the will that its provisions are intended to constitute a K b/t the parties.
● But if one of the parties dies, and the other one then executes a new will, we probate that one while at the same time imposing a constructive trust in favor of the original intended beneficiaries (of the first joint will).

Front 41

PROBLEMS ASSOCIATED W/ TESTAMENTARY GIFTS: NY’s “negative bequest” rule

Back 41

● At common law, when Will does not make complete distribution of the estate (resulting in partial intestacy), will's words of disinheritance are ineffective (Rationale: governed by intestacy statutes, not T's will)

● BUT NY’s negative bequest statute: disinheritance words get full effect even in partial intestacy.
● Interaction w/ anti-lapse: if disinherited person had issue, they take because they shouldn’t suffer.

Front 42

ELECTIVE SHARE STATUTE: Overview

Back 42

Purpose: protect surviving spouse from disinheritance, by entitling to min. share

Elective share: greater of 50K or 1/3 estate (plus 6% int. beginning at 7 months after issuance of Letters Testamentary/Administration)
-Applies to the net estate after payment of debts but before payment of estate taxes.

● Contrast with intestacy: surviving spouse’s intestate share is always going to be larger than elective share — unless testamentary substitutes are involved.

Application therefore uses property owned at death PLUS testamentary substitutes; create “augmented estate” or “elective share estate”; also avoids DISINHERITANCE

Front 43

ELECTIVE SHARE STATUTE: Testamentary Substitutes (7)

Back 43

THINK T.S. L.E.G.U.P.
(1) Totten Trust accounts
(2) Survivorship estates: only if created on or after Sept. 1, 1966; NOTE in NY a deposit in a joint bank account is irrevocable as to 1/2 of deposited amount.
- between the deceased spouse and 3d party: Use consideration furnished test; surviving spouse has burden of proof as to amount of decedent’s contributions to asset’s acquisition or joint account.
- between deceased spouse and surviving spouse: half is the T-sup regardless of which spouse furnished the consideration.
(3) Lifetime transfers w/ strings attached (Transfers or revocable trusts w/ retained power to revoke) AND irrevocable transfers w/ retained life estate made on or after 9/1/1992.
(4)Employee pension, profit-sharing, deferred comp. plan if empl. designated benef. on or after 9/1/1992; only 1/2 of qualified plan (qualified for favorable income tax treatment)
(5) Gifts made w/in one year of death in excess of $11K gift tax annual exclusion; Also gifts “causa mortis”— in fear of impending death, whether or not $11K; automatically revoked if donor survives peril.
(6) US Gov't bonds & P.O.D “pay on death” instr.
(7) Powers of appointment: property over which decedent held presently exercisable general power of appointment (NOT prop. over which he held general testamentary power); If decedent could get to it alive, spouse can.

Front 44

ELECTIVE SHARE STATUTE: NOT Testamentary Substitutes (6)

Back 44

Think L.O.G.P.I.T.
o Life insurance, whether payable to surviving spouse or 3d party.
o One-half qualified pension and profit-sharing benefits (won’t be tested).
o Gifts made w/in 1 year of death, within the $11K annual exclusion.
o Pre-marriage irrevocable transfers—gift to a friend prior to the marriage.
o Irrevocable transfers made > 1 year before death—transfers in which grantor did not retain power to revoke, invade, consume or dispose of principal.
o Transfers with retained life estate made before 9/1/1992.

Front 45

ELECTIVE SHARE STATUTE: Calculation

Back 45

o Take the total probate estate and add to it the TS’s (remember to do 1/2 of the survivorship, etc.).
o Then divide that augmented estate by 1/3.
o Then back out (subtract) the amount passing to the spouse under the will and back out the amount passing to the spouse as testamentary substitutes (note that this means you are taking out what you put in originally).
o That leaves you w/ the elective share.

NOTE: if need to come up w/ more money, take pro rata from testamentary interests

Front 46

ELECTIVE SHARE: Elective Share Trusts as satisfaction of surviving Spouse’s right of election

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For estates of decedents executed pre-9/1/1994, right to elective share could be wholly eliminated through the use of an elective share trust that gave the surviving spouse a life estate (an income interest for life), as long as at least $50K was given outright to the spouse. If the sum of (i) outright dispositions of at least $50K, plus (ii) the principal of the trust equaled or exceeded the 1/3 elective share amount, then the surviving spouse had no right of election.

NOW life estates (“terminable trusts”) no longer satisfy entitlement.

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ELECTIVE SHARE: Multijurisdictional concerns

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● Only a spouse of decedent domiciled in NY at time of his death has right to election.
● Exception: if H expressly states in his Will that the disposition of his real property in NY is to be governed by NY law (i.e. client retires to Florida but still owns real property in NY and still has NY attorney write his will).

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ELECTIVE SHARE: Exempt Property

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● Items that come “off the top”—over and above prop. passing to the spouse by Will, intestate share, or elective share:
1) Car (up to $15K in value);
2) Furniture, appliances, computers, etc. (up to $10K)
3) $15K cash allowance (not subject to creditors except funeral expenses)
4) Animals, farm machinery, tractor (up to $15K)
5) Books, pictures, tapes, software(up to $1K)

● Total value of exempt personal property can be as high as $56K

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ELECTIVE SHARE: When spouse is Disqualified

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Like intestacy (D.I.S.M.A.L.)
o Divorce: final decree of divorce or annulment valid under NY law.
o Invalid divorce/annulment procured by surviving spouse
o Separation decree (NOT agreement) rendered against surviving spouse.
o Marriage is void as incestuous or bigamous
o Abandonment and Lack of Support

Front 50

WILL CONTESTS: Testamentary Capacity

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● Did the testator have sufficient capacity to:
- Understand the nature of the Act(i.e. writing Will);
- Know the nature and approx. value of prop.
- Know the nat'l objects of bounty (family, loved ones); AND
-understand the disposition

NOTE: capacity is lower here than that required for any other legal instr.; Just need be executed during “lucid interval.”

Insane Delusion: T is of sound mind on other subjects but has persistent belief in supposed facts which have no real existence except in T’s perverted imagination. facts against all evid. and produce the testamentary act

Undue Influence: T's capacity was subjected to and controlled by a dominant influence of power

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WILL CONTESTS: Undue influece impacting testamentary capacity

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Burden of proof is on contestant to prove...

-Existence and exertion of influence
-Effect was to overpower the mind and will of the testator
-Product is a will or gift in will that wouldn't have happened but for influence.

NOT enough: mere opportunity to exert influence; Susceptibility to influence due to age or illness; nat'l disposition/preference

ENOUGH: 1) Will makes gift to one in confidential relationship; AND 2) That person was active in preparing the will.

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WILL CONTESTS: Will-drafting attorney as beneficiary, executor

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If will makes bequest to the drafting attorney, Surrogate Court makes “Putnam scrutiny,” even w/o obj., to determine if gift was voluntary.

If Will names drafting attorney as executor: EPTL requires written disclosure to client that:
- Any person can be named executor, not just attorney.
- Executor receives statutory commissions; AND
- Attorney will also be entitled to legal fees for representing the estate.
-Client must sign this acknowledgment w/ 2 witnesses.
Effect of failure to comply w/ statute: attorney receives 1/2 of commissions

Front 53

WILL CONTESTS: No-Contest (“in terrorem”) Clauses -- Majority Rule

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Clause in a will that says that if anyone objects to will, they get nothing.

Majority rule: no-contest clauses given full effect unless Ct finds that contest was brought in good faith and w/ probable cause (e.g. wasn’t frivolous suit designed to extract settlement).

Clause given full effect even if there was probable cause to challenge the will. Rationale: Testator should be permitted to protect his testamentary plan and his reputation against post-death attack.
o Exceptions to the NY rule:
1) If will contest is based on forgery or will was revoked by a later will (if surrogate finds probable cause for the contest). Doesn’t apply if nephew contests will on ground that uncle’s will was revoked by physical act—it’s revocation by later will only.
2) If it’s filed on behalf of an infant or an incompetent person. Rationale: action taken by 3d party (guardian) should not work a forfeiture.
3) Construction proceeding to construe the will’s terms.
4) Objection to jurisdiction of the court.

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WILL CONTESTS: No-Contest (“in terrorem”) Clauses -- NY Rule

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Clause given full effect even if there was probable cause to challenge the will.

Rationale: T should be permitted to protect testamentary plan and rep. against post-death attack.

Exceptions to the NY rule:
1) If will contest is based on forgery or will was revoked by a later will (if surrogate finds probable cause for the contest). Doesn’t apply if nephew contests will on ground that uncle’s will was revoked by physical act—it’s revocation by later will only.
2) If it’s filed on behalf of an infant or an incompetent person. Rationale: action taken by 3d party (guardian) should not work a forfeiture.
3) Construction proceeding to construe the will’s terms.
4) Objection to jurisdiction of the court.

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POWERS OF APPOINTMENT: Overview

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-Definition: Authority created by a 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 will take it.
-Purpose: look at facts in evidence at a later date when the property is distributed, e.g. did the grandkids grow up to be dirtbags?
-Persons involved:
o Donor: creator of POA
o Donee: person who is given the power to sue
o Takers in Default: persons who take the property if the donee fails to correctly exercise the property.
NOTE: When a person reserves a Power in herself, she is both donor and donee

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POWERS OF APPOINTMENT: Types

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(Often performed via trusts)

General Test. POA: person can appoint to themselves, their creditors, or their estate as if they own it themselves; “to trustee for life, then as she appoints by Will. If trustee does not exercise this POA, principal to Dana’s children.” Trustee not limited
Special Test. POA (limited): does not permit you to appoint yourself; “...and trustee shall distribute the principal to such OF HIS DESCENDANTS as he appoints by will.”
Presently Exercisable POA: Can exercise it right now.
“trustee shall pay the income to daughter Dana for life; during her lifetime Dana can appoint the trust property to anyone”
Testamentary POA: can only appoint by will; “...and on Dana’s death the trust principal shall be distributed to such persons, including Dana’s estate, as she appoints BY HER WILL”

In NY, Will exercises all POAs held by testator, and that’s both general and special—unless instrument creating the power called for its exercise by a specific reference; if Dana dies w/ will devising “all the rest, residue, and remainder of my estate to my son John,” she is presumed to have exercised the POA.

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POWERS OF APPOINTMENT: as relates to Elective Share

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If Dana’s husband Horace files for elective share to take 1/3 of her net estate, the following would be testamentary substitute for elective share purposes:
-General presently exercisable POA: yes, b/c she can get to it during her lifetime.
-General testamentary POA: No, b/c she can’t get to it in her lifetime.
-Special POA: No, b/c can’t get to it during her lifetime.

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POWERS OF APPOINTMENT: as relates to creditors

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● Presently exercisable general POA: Creditors can reach the appointed assets, even if Al does not exercise the power, because it is as if he owned the assets himself.
● Presently exercisable special POA: Creditors cannot reach b/c he can’t get to it himself.
● General testamentary POA: where donee leaves will exercising the power. Creditors cannot reach unless donee of power is also donor of power, OR he exercises it in favor of his own estate.