Wills

Front 1

What is the NY Law governing Wills?

Back 1

2. New York Law governing wills and estates:
a. Estate Powers and Trust Law (EPTL)—all your essay questions on the New York Local Bar should start with “Under the EPTL”
b. Surrogate’s Court Procedure Act (SCPA)

Front 2

Define Intestate

Back 2

Intestate: when a person dies without a will.

Front 3

Define testate

Back 3

Testate: when a person dies with a will.

Front 4

Define Decedent

Back 4

person who dies without a will

Front 5

Define Testator

Back 5

person who dies with a will

Front 6

Define Administrator

Back 6

a person appointed as personal representative to adminster the estate of a decedent

Front 7

Define Executor

Back 7

a personal representative named in the Will to administer the estate of a testator.

Front 8

Define Administration Proceeding

Back 8

a surrogate's court proceeding initiated by a distributee to

1. appoint an adminstrator and administer the property of the decedent; AND
2. ultimately "probate" the estate.

Front 9

Define Probate proceeding

Back 9

a surrogate's court proceeding to:

1. judicially determine whether the testator's will was validly executed and determine the intestate distributees; AND
2. appoint the executor to administer the testator's estate.

Front 10

Define intestate estate

Back 10

assets held in the decedent's name alone that do not pass by operation of law or will and which the administrator administers in accordance with the EPTL.

Front 11

Define distributee

Back 11

person who inherits property under intestate succession.

Front 12

define beneficiary

Back 12

person who receives a bequest (s/ts called a legacy or devise for those who inherit real property under a will).

Front 13

Define advancement

Back 13

a lifetime gift to an intestate distributee

Front 14

Define satisfaction of legacy

Back 14

a lifetime gift to a will beneficiary.

Front 15

define residuary

Back 15

the balance of the testator's estate after all claims, taxes, and bequests have been distributed

Front 16

Define operation of law

Back 16

property that passes automatically because of the way the property's title is held regardless of the existence of a will.

Front 17

When do intestacy laws apply:

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B. Application of Intestacy Rules
The EPTL contains the rules of descent and distribution of property (both real and personal) in intestacy, which typically apply when:
a. When decedent left no will or did not properly execute it;
b. The will does not make a complete distribution of the estate (typically because there was poor drafting by the attorney) and results in partial intestacy; OR
c. A distribute successfully challenges the Will, and the Will is denied probate.

Front 18

What is the Order of Priority for Appointment as Administrator?

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C. Order of Priority for Appointment as Administrator
a. Surviving spouse;;
b. Children;
c. Grandchildren;
d. Parent;
e. Siblings;
f. Any other distribute

Front 19

What is the distribution rule when the Decedent is Survived by Spouse and No Children?

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a. Decedent Survived by Spouse and No Children
i. Rule: if the decedent is survived by her spouse but not by any children or issue of children, the surviving spouse take the whole estate.

Front 20

What is the distribution rule when Decedent is Survived by Spouse and Children?

Back 20

b. Decedent Survived by Spouse and Children
i. Rule: if the decedent is survived by his spouse and issue, whether of his current marriage or an earlier marriage—
1. The surviving spouse takes: $50k and one-half of the residuary estate (the balance left over)
2. The issue takes: the left-over residuary, UNLESS the estate happens to be less than $50k, the whole estate goes to the surviving spouse.

Front 21

What is the distribution rule when decedent is survived by children only (no spouse)?

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c. Decedent Survived by Children Only (no spouse here)
i. Rule: if the decedent is survived by children only (and no child has predeceased the decedent) it passes to the children in equal shares.

Front 22

What is the distribution rule when Decedent is Survived by Children and Issue of Predeceased Children?

What are the steps when you apply this rule?

Back 22

d. Decedent Survived by Children and Issue of Predeceased Children
i. Rule: if the decedent is survived by children and the issue of predeceased children it passes to “alive” children and the issue of the “dead” children by representation (or per capita at each generation).


ii. Applying the Rule: commit this to memory!
1. Step 1: the property is divided into as many shares as there are issue at the first generational level at which there are survivors.
2. Step 2: All living issue at the first generational level take one share each.
3. Step 3: The shares of the deceased issue at the first generational level are combined and then divided equally among the takers at the next generational level in the same way.
4. Rule of Thumb: Issue in the same generation will always have equal shares.

Front 23

What results when the decedent is not survived by spouse or children?

Back 23

e. Decedent Not Survived by Spouse or Issue
The distribution is:
i. All to parents or surviving parent.

ii. If not survived by parents: all to issue of parents (i.e., siblings and issue of deceased siblings), who take per capita at each generation.

iii. If not survived by parents or issue of parents:
1. ½ to maternal grandparents OR surviving grandparent OR (if neither is living) to their children and grandchildren, who take per capita at each generation; AND
2. ½ to paternal grandparents OR surviving grandparent OR to their children and grandchildren, who take per capita at each generation.

iv. If not survived by grandparents or their children and grandchildren on one side: all to grandparents OR their children and grandchildren on the other side.

v. If only survived by great grandchildren of grandparents (i.e., first cousins once removed)
1. ½ to maternal great grandchildren in equal shares; AND
2. ½ to paternal great grandchildren in equal shares

vi. If not survived by great grandchildren on one side: all to great grandchildren on the other side

vii. If not survived by grandchildren of grandparents: if the nearest kin are great great grandchildren of grandparents OR issue of great grandparents, the estate escheats to the state of New York.

Front 24

What is the rule with respect to per stirpes and per capita distributions?

Back 24

a. In Most States (and old law in NY): the distribution is per stirpes, under which the issue of a predeceased child takes the share that the predeceased child would have taken, if alive.

b. New York: the default distribution is per capita at each generation in both intestacy and in a will!
i. Per capita at each generation will apply even if decedent died with a will.

c. Exception: a will can override and change the default distribution to “per stirpes”
i. Bar Exam Trap: “Per capita at each generation” results in the same distribution as “per stirpes” if only on person at the first generational level died.

Front 25

What are the inheritance rights of adopted children and their issue?

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i. Adopted children and their issue:
1. General Rule: they have full inheritance rights from the adopting family and vice versa if the adopting child dies first (this is a two-way street)

Front 26

What are the inheritance rights of a child adopted by a new family?

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ii. Child adopted by a new family:
1. Rule: when a child is adopted by a new family, he has no inheritance rights from the members of his/her birth family or from his birth parents.
2. Exception: when a child is adopted by the spouse of a birth parent, the child in issue can inherent from both the adopting parent and from either birth parent (this exception is based on public policy preferences).

Front 27

What are the inheritance rights of a child adopted by

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iii. Child adopted by a relative (e.g., an aunt or uncle)
1. Special Rule: 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 UNLESS the decedent was the adopting parent, then the child inherit under the adoptive relationship.

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What are the inheritance rights of a non-marital child?

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i. General Rule: a non-marital child has full inheritance rights from the mother and the mother’s family.
1. However, a nonmarital child inherits from the birth father only if paternity is established by one of the following four tests—
a. During Father’s Life:
i. The father marries the mother after the child’s birth (“legitimation by marriage”); OR
ii. An order of filiation in a paternity suit is entered adjudicating the man to be the child’s father; OR
iii. The father files a witnessed and acknowledged (before a notary public) affidavit of paternity with the Putative Father Registry; OR
b. **Before or After Father’s Death (in Probate)
i. Paternity is established by clear and convincing evidence which may include, but is not limited to evidence established by:
1. A DNA / Genetic Marker Test
2. Open and notoriously, such as acknowledging the child as his own. Participation in school activities and visitations may also constitute clear and convincing evidence. However, gifts, by themselves, will not be enough to constitute open and notorious acknowledgement of paternity.
ii. Note: if you would like to establish paternity after father is dead, you will need to present strong evidence for state to exhume body to extract DNA, especially if exhuming the body would be against someone’s religious beliefs.

Front 29

Variations to intestate distributions--

What Circumstances will Disqualify Spouse from Taking Intestate Share

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a. Circumstances Disqualifying Spouse from Taking Intestate Share

Remember DISMAL

1. D: Divorce: a FINAL DECREE of divorce or annulment recognized as valid under New York law.
2. I: Invalid Divorce: the surviving spouse procured a divorce or annulment not recognized as valid under New York law.
a. Note: the surviving spouse is not disqualified if the deceased spouse procured the invalid divorce or annulment.
3. S: Separation Decree: a final decree of separation was rendered against the surviving spouse. A separation agreement does not result in disqualification UNLESS there is specific language in the agreement waiving the surviving spouse’s right under the EPTL.
a. Note: the surviving spouse is not disqualified if the final decree of separation was rendered against the deceased spouse.
i. I don’t really understand this.
4. M: Marriage is Void: an incestuous or bigamous.
5. AL: Abandonment or Lack of Support: the surviving spouse abandoned or refused to support the deceased spouse.
a. Note: The surviving spouse is not disqualified if the deceased spouse abandoned or refused to support him or her.

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What results if we have a DISMAL element?

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i. Rule: if we have a DISMAL element, assume the surviving spouse pre-deceased and you drop their share to their kids or whoever is next in line.
1. Note: there are no Slayer Statutes in New York, per se. However, if one spouse kills the other, the murdering spouse can forfeit their inheritance right via the “constructive trust” concept.
2. Minor Note: If you have joint property, you sever the joint tenancy and it becomes a tenancy in common. For joint bank accounts, the bad spouse can only get the amount that he or she put in the bank account.

Front 31

Lifetime Gifts to Intestate Distributees-- Advancement

What is the common law and the NY rule for advancements?

Back 31

b. Lifetime Gifts to Intestate Distributee—Advancements
i. Common Law: a lifetime gift to a child was presumptively an advancement (i.e., an advance payment) of his intestate share, to be taken into account when distributing the estate at death. (This was based on the presumption that a parent would always want to treat the children equally).
ii. New York: New York has rejected the “advancement” presumption by statute. Thus, there is no advancement unless proven by:
1. a contemporaneous writing made at the time of the gift; AND
2. it is signed by donor or donee

Front 32

How can an intestate distributee disclaim her interest in decedent's estate?

Back 32

i. Context: no one can be compelled to be a distributee or to take property by operation of law. A distribute can therefore disclaim (or renounce) her interest in the decedent’s estate in whole or in part. What is the effect?
ii. Rule: the person who disclaims is treated as though he predeceased the decedent.
iii. Valid Disclaimer Must Be: MUST have all four!
1. In writing, signed and acknowledged (before a notary public); AND
2. Accompanied by a separate affidavit stating the no consideration was received for disclaiming (UNLESS the Surrogate’s Court authorizes receipt of consideration for the disclaimer); AND
3. Irrevocable; AND
4. Filed with the Surrogate’s Court within 9 months after the date of death.

Front 33

Is there an exception to the rule that an intestate distributee can disclaim her interest and is treated as though she predeceased the decedent?

Back 33

Yes.

iv. Exception: if B died and A did not disclaim, G3 would get ½ of D’s estate. However, if B dies and A disclaims, G1, G2, and G3 will split D’s estate equally under intestacy line—each will get 1/3 of D’s estate. Thus, in this latter situation, A’s disclaimer will work an injustice on G3, who would otherwise have received ½ of D’s estate had A not disclaimed her inheritance.

1. Rule: In this situation, we act as if A, the disclaimer, died one day after the decedent. Thus, B, who predeceased D, will have her share drop down to G3. Thus, G3 will get ½. A’s share will drop down to G1 and G2 and they will each get ¼ of D’s estate. So here you have a per stirpes distribution.

2. Point: a disclaimer cannot screw up someone else’s legitimate share.

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v. Why would anyone want to disclaim an inheritance?

Back 34

1. To avoid taxes or to avoid creditors—which are both legally valid reasons to disclaim an inheritance—HOWEVER, one cannot specifically disclaim an inheritance to affect Medicaid or Medicare.

Front 35

Who can disclaim an inheritance under intestacy laws?

Back 35

vi. The following parties can disclaim:
1. Will beneficiaries
2. Beneficiaries of life insurance, employee benefit plans, trusts, or other non-testamentary transfers;
3. Surviving joint tenant or tenant by the entirety (to the extent the decedent furnished consideration for the tenancy’s acquisition); and
4. The decedent’s guardian, the holder of a durable power of attorney, or a decedent’s personal representative on the decedent’s behalf, with Court approval.

Front 36

What is needed for a will to be validly executed?

Back 36

iii. Due Execution Checklist:
1. Testator is 18+
2. Testator signs
3. Signature at “the end thereof”
4. Testator signs (or acknowledges her earlier signature) in the presence of each witness;
5. Publication;
6. Two attesting witnesses sign; and
7. Ceremony completed in 30 days

Front 37

Expanded list of what is needed for a will to be validly executed

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a. 7 Point Test
i. Test Elements:
1. You must be 18 years old (don’t make it issue unless prompted)
2. Signed by the testator, the person making the will, or by someone at the testator’s direction and in her presence (proxy).
a. Note: when the testator’s name is signed by another person, the proxy
i. Must also sign her name;
ii. Cannot be counted as an attesting witness; AND
iii. Must affix her address (BUT failure to affix does not invalidate the Will).
3. Testator’s signature must be at the end of thereof;
4. Testator must sign the will or acknowledge his earlier signature in the presence of each witness;
5. Testator must publish the will
a. Publication requires the testator to communicate to the witness that they are witnessing a Will (and not some other legal document), by declaring the document to be her “Last Will and Testament”
6. There must be at least two attesting witnesses; AND
a. Note—
i. Unlike most states, New York does NOT require that the witnesses sign in each other’s presence OR in the testator’s presence.
ii. Attesting witnesses must attest to the testator’s signature when the testator signed the Will (or acknowledged his signature). If the testator forgot to sign when the witness signed, and added his signature in the witnesses’ presence later, the Will is denied probate. (However, watch for “contemporaneous transaction).
7. Execution ceremony must be complete w/in 30 days which starts to run when the first witness signs the Will, not when the testator signs.

Front 38

What is a codicil?

Back 38

ii. Codicil: later amendment or supplement to the Will executed with the same formalities as the Will.

Front 39

Will a Will still be admitted to probate if it is not signed at the end thereof?

Back 39

b. Rule: a Will will still be admissible to probate, even when it is not signed at “the end thereof.” However, the words following the signature will not be given effect.
i. Exception: an entire will is declared invalid if the matter following the signature is so material that giving effect to that above the signature and not giving effect to that below the signature would defeat the testator’s intention.

Front 40

Is it a fatal flaw if a witness signs before the testator?

Back 40

No.

i. It is not fatal flaw if a witness signs before the testator, as long as “the ceremony” is contemporaneous.

Front 41

Is helping a testator sign a will is not a fatal flaw?

Back 41

ii. Helping a testator sign a will is not a fatal flaw as long as the testator’s signature was voluntary. However, if a testator is forced to sign a will, the Will will be invalid.

Front 42

Is any mark intended as the testator’s signature is valid?

Back 42

Any mark intended as the testator’s signature is valid—even an “X” will be sufficient.

Front 43

Does Testator have to sign the will in the witness’s presence?

Back 43

Testator does not have to sign the will in the witness’s presence as long as the testator acknowledges his earlier signature in the presence of the witness.

Front 44

Is it a problem if the two witnesses do not sign in the presence of one another?

Back 44

No.

It is not a problem if the two witnesses do not sign in the presence of one another.

Front 45

How long does a testator have to obtain the signatures of both attesting witnesses?

Back 45

vi. A testator has 30 days within which to obtain the signatures of both attesting witnesses.

Front 46

If a witness predeceases a testator, can the testator’s will still be admitted into probate?

Back 46

Even if a witness predeceases a testator, a testator’s will may still be admissible to probate if the 7-point test was satisfied.

Front 47

Who has the burden of proving due execution of a will?

Back 47

i. Will Proponent: the person who offers the Will for probate (usually the executor).
ii. Rule: the Will proponent has the burden of proving due execution.
1. If one witness is not available to testify: the testimony of one witness suffices if the other witness is dead, absent from the state, incompetent or cannot with due diligence be found.
2. If none of the witnesses are able to testify: the Will proponent must prove the signature of both the testator and one witness
3. If the Will is not self-proved (see below): Both attesting witnesses must testify as to the facts necessary to show due execution.

Front 48

What is an attestation clause?

Back 48

iii. Attestation Clause: it appears below the testator’s signature line and above the witness’s signature lines, and recites all the elements of due execution—

On the above date, the testator declared to us that the foregoing instrument was her Will and she asked us to serve as witnesses thereto. She then signed the Will in our presence, we being present at the same time. We then signed the Will as attesting witnesses.

Front 49

What is the value of an attestation clause?

Back 49

1. Probate Value: prima facie evidence of the facts presented (see #2 as to what this means)

Front 50

Is an attestation clause be substituted for live testimony?

Back 50

2. NOT a substitute for live testimony: an attestation clause is merely corroborative of the witness’ testimony. A Will proponent must still call the witnesses to testify or prove their signatures.

Front 51

What are the reasons for having an attestation clause?

Back 51

3. Reason for having an Attestation Clause:
a. If the witness has a bad memory: “Probate of a Will does not turn on the memory of attesting witnesses.”
b. If the witness is hostile: e.g., the witness recalls signing a Power of Attorney or some other document, the Attestation Clause can be used to rebut the witness’s evidence.

Front 52

What is a self-proving affidavit?

Back 52

iv. Self-Proving Affidavit: it is attached to the back of the Will, and is a mechanism set forth by the legislature which recognizes that the validity of most Wills is not contested.
1. What is it? Witnesses sign a sworn statement in the presence of an attorney that recites all the statements they would make if called to testify in court. Basically, this affidavit states that all 7 points are satisfied.

Front 53

Is a self-proving affidavit a substitute for live testimony?

Back 53

2. Substitute for Live Testimony; unlike an Attestation Clause, a Self-Proving Affidavit is a substitute for the live testimony of the witnesses. It serves the same function as a deposition or an interrogatory (i.e., it is sworn testimony.

Front 54

What procedures must be followed with respect to self-proving affidavits?

Back 54

3. Procedures:
a. The Affidavit can be signed at any time after the Will is executed, but is usually signed at the same time as the Will.
b. The Will is admissible to probate on the strength of the sworn recitals in the Affidavit UNLESS an interested party objects, in which case the formal rules of proof of due execution apply.
i. Interested Party: an intestate distributee or Will beneficiary (current or prior) who is adversely affected by the admission of the Will to probate.
4. Note: the Attestation Clause and the Affidavit are NOT legally required in any state. However, it is almost malpractice NOT to include an attestation clause in a will.

Front 55

Is the validity of a will affected if a self-interested witness signs the will?

Back 55

a. Rule: the validity of the will is not affected if a Will beneficiary is also an attesting witness

Front 56

What results if a self-interested witness signs a will?

Back 56

a. Rule: the validity of the will is not affected if a Will beneficiary is also an attesting witness BUT the bequest to the witness is VOID UNLESS:
i. Supernumerary Rule:
1. There were at least 3 witnesses and at least 2 were disinterested. Therefore, the signature of the witness-beneficiary is not needed to admit the Will to probate so that witness-beneficiary can receive their bequest, OR
2. The interested witness would be an intestate distributee if testator died without a will.
a. In which case, a “which is least rule applies”: The witness-beneficiary takes the lesser of
i. the bequest under the will, OR
ii. his intestate share

Front 57

What is the purpose of the "interested witness statute"?

Back 57

ii. Purpose of “Interested Witness Statute”: to avoid fraud—to avoid interested witnesses thinking they can void the will & get a greater intestate share by witnessing the will for the testator.
1. Note: if an interested witness signs the Will, the Will will still be valid. However, if the witness is interested, but is NOT an intestacy distributee, that witness will lose all bequests under the will.
2. Lower NY Court Application: if a will provision falls into intestacy because there is no residuary clause, it is still considered under the Will for purposes of the statute.
3. Executor’s Compensation: a will may name a person as an executor and that person can still be an attesting witness to the will without any problems. The Interested Witness Statute is only triggered by gifts to interested witnesses. Executors, on the other hand, are earning their compensation, their payment is NOT a gift.

Front 58

What is the foreign rules act?

Back 58

C. Foreign Wills Act
a. Rule: a will is admissible to probate in New York if it was validly executed under:

Remember END

i. The law of the state where the Will was Executed, regardless of the testator’s domicile at that time; OR
ii. New York law; OR
iii. The law of the state where the testator was Domiciled, either when the Will was executed or at death

Note: These rules apply only to determine whether the Will is admissible to probate in New York. Once the Will is admitted to probate, New York law governs construction and application of its provisions.

Front 59

Define Holographic and Nuncupative Wills

Back 59

i. A holographic will is: a will that is entirely in testators handwriting that is signed but it was NOT witnessed.
ii. A nuncupative Will is: an oral will (i.e., DVD or CD)

Front 60

Are either Holographic and Nuncupative Wills valid in NY?

Is there an exception to this rule?

Back 60

No.

Rule: Both are VOID in New York
i. Exception: Both are 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).

Front 61

How will holographic and nuncupative wills executed in a state that recognizes them be treated under the foreign wills act?

Back 61

c. Application of Foreign Wills Act: if a holographic will is executed in a state that recognizes them, and a testator of a holographic or nuncupative will dies in New York, then the will will be valid.
i. Note: the bar examiners would have to give you the statute of the other state to let you know that the other state recognizes these types of wills.

Front 62

Do Intended Will beneficiaries have a cause of action against a lawyer for negligence in drafting the will of their testator?

** Note Schneider case exception in another slide!

Back 62

Generally, no. But there is a small exception under the 2010 Schneider Case.

Rule: Intended Will beneficiaries do not have a cause of action against a lawyer for negligence in drafting the will of their testator.
i. What this means: the intended Will beneficiaries cannot sue such a lawyer to recover the amount they would have taken had the Will been validly executed.
ii. Reason: there is no privity of contract between the intended beneficiaries and the lawyer. The lawyer’s only duty is to his or her client, who contracted for the lawyer’s services, and who is not the testator.

However, even with the Schneider Case, there is still NO privity of contract for third party beneficiaries UNLESS you have fraud, collusion or malice.

Front 63

What resulted from teh Schneider Case in 2010 with respect to estate attorney's malpractice liability?

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b. Schneider Case: Recent 2010 Court of Appeals Case
i. Facts: Decedent was advised to include life insurance policies (which were substantial) that were initially in limited partnership controlled by decedents to the estate itself. Testator was told that it would decrease his estate tax liability. However, the change actually substantially increased his estate tax liability.
ii. Court’s Ruling: while there is still not privity of contract between the intended beneficiaries of the Will and the attorney of the testator, there is privity of contract between the personal representative of the estate and the estate planning lawyer. Thus, the estate planning lawyer can be held liable for what he cost the estate in additional tax liabilities.
c. But Remember: there is still NO privity of contract for third party beneficiaries UNLESS you have fraud, collusion or malice.

Front 64

What constitutes a valid revocation of a will?

Back 64

A. What Constitutes a Valid Revocation?
a. Rule: a Will can be revoked in only one of two ways:
i. subsequent testamentary instrument executed with appropriate formalities OR
ii. by physical act (e.g., burning, tearing, cutting, canceling, obliterating, or other act of mutilation) BUT MUST HAVE intent to revoke (e.g., ripping by accident is NO GOOD!)
b. Example: writing at the bottom of each page “I cancel this will” or “This will is void” is not enough (need witnesses). However, crossing out your signature on a will with an “x” or writing “cancel” across the test of every page will be sufficient to void the will.

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What is an express revocation?

Back 65

B. Express Revocation
a. Rule: the typical express revocation language in a Will is:
i. I hereby revoke all Wills heretofore made by me.

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What is a revocation by implication and are there exceptions?

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C. Revocation by Implication
a. Rule: to the extent possible, you need the two instruments together. The second will is treated as a codicil of the first will and only revokes the first will to the extent that there are inconsistent provisions.
b. Exceptions: if the second will is wholly inconsistent with the first (e.g., the first Will leaves “all my property to Moe” and the second Will leaves “all my property to Larry”), the first Will is revoked by implication.

Front 67

Revocation by Physical Act of Another (Revocation by Proxy)-- how does this occur?

Back 67

D. Revocation by Physical Act of Another (Revocation by Proxy)
a. Rule: the physical act must be
i. At the testator’s request;
ii. In the testator’s presence; AND
iii. Witnessed by at least two witnesses

Front 68

What is the presumption when:

a. When a Will that was last seen in the testator’s possession or control is not found after death

Back 68

i. Presumption: the testator revoked the will by physical act with the intent to revoke.

Front 69

What is the presumption when:

b. Situation: When a Will that was last seen in the testator’s possession or control is found in a damaged condition after T’s death (e.g., torn in two)

Back 69

i. Presumption: testator was the one who revoked the will/damaged the will by a physical act.

Front 70

When are the presumptions about a testator's intent to revoke not applicable?

Is evidence admissible to rebut either presumption?

Back 70

i. When presumptions are not applicable:
1. Neither presumption arises if the Will was last seen in the possession of someone adversely effected by its contents (e.g., a person stands to inherit under the earlier Will but not under the later Will, and the later Will as last seen with that person.)
ii. Admissibility of Evidence:
1. Evidence is admissible to rebut the presumption of revocation when the Will cannot be found (e.g., the will was left with an attorney for safekeeping and the attorney cannot find it) OR is found a damaged condition (e.g., the testator told witnesses that the destruction of the Will was accidental).
a. See “Lost Wills” statute.

Front 71

How can a testator make a change in her will?

Back 71

F. Changes on the Face of the Will after it has been Executed
a. Rule: the only two ways a testator can make changes in her Will are:
i. write a new will revoking the first will,
ii. make a codicil to the first will, which changes only part of the first will
b. Note: both must be duly executed (e.g., satisfy the 7 point test)
c. Bar Exam Twists—seen on 2011 exam
i. Words added to the will after it is signed and witnessed are disregarded
ii. Partial revocation by physical act is NOT recognized in New York (as distinguished between full revocation by physical act, which is recognized in New York.)

Front 72

Can a revoked will be revived?

Back 72

G. No Revival of Revoked Wills
a. Rule: if a testator executes a Will that is revoked by a later Will containing a revocation clause, the first Will CANNOT be “revived” by the testator merely revoking the later will. The first will can only be revived in one of two ways:
i. Re-execution: if the first will is signed again by the testator and two witnesses
ii. Doctrine of “republication by codicil”: testator validly executes a codicil to the first will making changes
iii. Note—the “no revival” rule also applies to codicils
iv. Rule of Thumb—you need a validly executed document to make a change.

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What is dependent relative revocation or DRR?

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b. Dependent Relative Revocation (DRR)
i. Rule: DRR permits a revocation of a later Will to be disregarded. The effect would be to permit probate of the later Will.
1. Note—DRR is a common law doctrine, sometimes called the “second best solution doctrine.” The best solution, which is giving effect to the testator’s intent by reviving the earlier Will, is just not possible usually under New York Law.
2. Also Note—DRR should not be applied when there are two different testamentary schemes.
a. When DRR does not apply, everyone loses.
ii. Requirements for Application of DRR:
1. The testator’s revocation must be premised or dependent upon a mistake of law (i.e., that revocation of the later 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.
c. In New York: DRR has been applied in one Appellate Division case, but never by the Court of Appeals. (Recent Appellate Division case said “NO WAY!”)
i. Exam Tip—If you are given a DRR question, argue both sides.

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What is the "lost will" statute?

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d. “Lost Wills” Statute
i. The statute is used in two situations:
1. DRR, and
2. Truly “lost” wills
ii. The “Lost Will” proponent must prove that—
1. The “lost’ or later Will was duly executed: refer to the 7 point test
2. The “lost” or later Will was not “revoked”: thus, the “Lost Will” proponent must—
a. Overcome the presumption of revocation that arises from the Will’s non-production; OR
b. Prove that the revocation should be disregarded under DRR
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.
iii. Note—revoking a codicil does NOT revoke the entire Will. Provisions in the Will that were not changed by the codicil remain in effect.

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What is the anti-lapse statute?

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B. Anti-Lapse Statute—or “does not fail”
a. General Rule: if a beneficiary dies during the testator’s lifetime, the gift to the beneficiary lapses (fails) UNLESS the gift is saved by the state’s anti-lapse state.
b. New York’s Anti-lapse Statute: the gift does not lapse but vests in the deceased beneficiary’s issue IF BOTH of the following conditions are satisfied:
i. Predeceased beneficiary was T’s issue, brother, or sister
ii. This predeceased beneficiary leaves issue who survives T

Disclaimer Revisited: under the intestate rules, a disclaimant is considered to have predeceased the decedent. Similarly, under testate rules, a disclaimant is considered to have predeceased the testator.

c. Rule of Thumb: a condition to a bequest (i.e., “if he survives me”) trumps anti-lapse.

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How does the anti-lapse statute apply to the following facts?

i. Facts: the testator’s son was adopted by a non-relative but the testator still named the son as a beneficiary in his Will. The son predeceased the testator, leaving children who survived the testator.

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d. Death of “Adopted Out” Child—NY Court of Appeals Case (2007)

ii. Recap: an adopted out child has no inheritance rights from the birth parents or other members of the birth family.

iii. Court’s Ruling: Even though the son was adopted out, because the testator specifically named the adopted out son, the anti-lapse statute saved the testator’s devise to the adopted out son’s issue.

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What is the “Surviving Residuary Beneficiaries” Rule (think anti-lapse statute)?

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C. Lapse in Residuary Gift—“Surviving Residuary Beneficiaries” Rule
a. “Surviving Residuary Beneficiaries” Rule: Absent a contrary provision in the Will, if the testator’s residuary estate is:
i. Devised to two or more persons; AND
ii. The gift to one of them fails or lapses for any reason; AND
iii. The anti-lapse statute does not apply,

THEN the other residuary beneficiaries take the entire residuary estate in proportion to their interests.

b. Rule of Thumb: Anti-Lapse trumps the “surviving residuary beneficiaries” rule.

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How should class gifts in a will be treated when a member of the class predeceases the testator?

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a. Rule:
i. Absent a contrary provision in the Will, if a Will makes a gift to a group of persons described as a generic class (e.g., children, siblings, etc.) and some member of the class predecease the testator, the class members who survive the testator take in equal shares.


b. Rationale:
i. This is a rule of construction based on presumed intent. Since the testator was “group minded” in making the gift, he wanted the class of persons (an no one else) to take in equal shares.

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How do you determine the members of a class, named in a will?

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c. How to Determine the Members of the Class:
i. Look at who is alive at T’s death to determine the takers of a class gift.

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When Testator Names Beneficiaries Individually, Not as a Class what results?

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d. When Testator Names Beneficiaries Individually, Not as a Class:
i. Rule: assuming the anti-lapse statute does not apply, if one of the named beneficiaries predeceases T, if there is a residuary clause, the shares of the named beneficiary go into the residuary estate.
1. See examples on pp. 38-39 of outline
ii. Rule of Thumb: anti-lapse trumps the “class gift” rule.

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Example-- Suppose T's Will devises the Plaza Hotel "to A, B, and C, the children of my brother Baxter, in equal shares.

Here, the Will makes gifts of 1/3 shares to three individuals, AB&C. If A predeceases T-- what results?

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A's share will fail, but it will not go to the other members of the class because A was individually named (instead of included by reference by being a member of a class). Here, A's share will go to the residuary estate.

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What is the rule of construction when there is a class gift implicating an adopted out child?

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e. Construction of a Class Gift Implicating an “Adopted Out” Child
i. Rule: if a child is adopted by a new family, the “adopted out” child does not take as a beneficiary of a class gift made in the Will of a member of the child’s birth family.
ii. Remember: the adopted out child is entitled to share in a class gift if she is adopted by a member of the birth family.

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What is the rule of convenience?

Are there limitations on this rule?

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B. Rule of Convenience
a. Rule: the class closes at the time a distribution to the class must be made. Later-born class members are excluded from taking as members of the class.
i. Later-born class members: members born after testator dies.
b. Rationale: this is a rule of construction used to determine the takers of a class gift and the minimum share of each class member. It is called the “rule of convenience” because any other solution would be disruptive of property ownership. Under the rule, a distribution can be made with certainty that a rebate or refund would not be sought later on.
i. This avoids family feuds over money!
c. Limitation to Rule: later-born class members are NOT excluded from taking as members of the class if the “gestation” principle applies. This is a common law presumption that there are 280 days from conception to birth.

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When does a class close?

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C. When the Class Closes
a. Outright Gift by Will: the class closes on T’s death.
b. A Life Estate or an Income Interest with a Remainder to a “Class of Beneficiaries”: a class closes at the death of a life tenant or the income beneficiary.

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What is Revised Uniform Simultaneous Death Act (RUSDA)?

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A. Revised Uniform Simultaneous Death Act (RUSDA):
a. Language of the Statute:
i. Absent a Will provision to the contrary, if a person dies under circumstances where there is insufficient clear and convincing evidence to prove that such person is to have survived the other by 120 hours (5 days), the property of that person is distributed as though he or she predeceased the other person.
b. Plain Language:
i. If two people die within 5 days of each other, even instantly, if there is no proof that one survived more than 5 days than the other—presume that each predeceased the other depending on whose property you are distributing.
c. Key to RUSDA: look at whose estate you are distributing.
i. Understand this provision—this is ripe to be tested!

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Explain how RUSDA applies to jointly held property when both joint tenants die at the same time.

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B. RUSDA and Jointly-Held Property:
a. Rule: jointly-held property passes as though each co-owner survived the other.
i. Fiction: RUSDA theoretically severs the right of survivorship in cases of jointly-held property.
ii. Thus, the property passes as though a tenancy in common was involved and not as survivorship property. This fiction was created so that the property would pass down.
b. Note—the same distribution results for tenants by the entirety and joint bank accounts
c. Key to RUSDA:
i. Identify whose estate you are distributing—the owner of that estate is treated as if he/she survived, even if they died first, unless that person lived for more than 120 hours after the other person in the problem.

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What effect does marriage after the execution of a will have on the will?

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A. Testator Marries
a. Rule: Marriage after the execution of a will has no effect on the validity of the Will, but it may affect gifts and dispositions under the Will.
b. Rationale: New York law provides for a “right of election” (discussed later on) so that a testator cannot disinherit his spouse.

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What results if the testator unmarries after he executes his will?

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a. Rule: 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.
i. Effect: you read the will as if the spouse predeceased the testator.
b. Exclusions:
i. All gifts and fiduciary appointments in favor of the issue of the former spouse are not revoked by operation of law.
ii. An appointment of the former spouse as guardian of the couple’s children is not affected.
iii. If the couple reconcile and remarry, all provisions in favor of the former spouse are restored.
c. Remember—Anti-lapse statutes DO NOT apply to spouses, only brothers, sisters, and issue.

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What effect will the following have on T's will?

i. Wife dies when her husband is in the process of applying for a divorce, but a final decree has not been entered against his wife.

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i. A husband who is in the process of applying for a divorce, but a final decree has not been entered against his wife, will not be “disinherited” from his wife’s Will. A final decree must be entered.

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What effect will the following have on T's will?

T and wife unmarry and T has appointed wife as an executor of his estate.

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ii. The appointment of a husband/wife as an executor is revoked by divorce decrees, annulments, etc. Fiduciary duties are revoked by divorce decrees, etc.

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What effect will the following have on T's will?

A separation agreement is entered into.

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iii. If a separation agreement is executed by a husband before his wife’s death, the husband will not be “disinherited.” A divorce decree, separation decree or annulment must be entered before husband will be disinherited.

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How can a spouse be disinherited under a validly executed will?

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e. Rule of Thumb: only a final decree of divorce, separation or annulment can disinherit a spouse under a will.
i. Note—while we have all the DISMAL factors that can knock a spouse out under intestacy, it is NOT the same when there is a will. Only a final decree of divorce, separation, or annulment can disinherit a spouse under a will.
1. Rationale: intestacy is seen as an omission, but a will is seen as an overt act, so there is a higher standard for knocking out a spouse under a will.

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How can a divorce affect inheritance passing by operation of law to an ex-spouse?

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f. Inheritance Passing by Operation of Law:
i. Rule: a decree of divorce, separation or annulment can knock out a spouse from certain things passing by operation of law—such as life insurance proceeds, totten trusts, things that were previously deemed contracts
1. Insurance Proceeds Revocation: are ripe for testing!

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What is the result under the EPTL when a Testator’s Child is Born or Adopted after the Will is Executed?

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C. Testator’s Child is Born or Adopted after the Will is Executed
a. Context: the EPTL does not protect children who are alive when the Will is executed. Parents do not have to leave their children anything!
i. Pretermitted Children: Children born or adopted after the Will is executed.
b. General Rule: the EPTL only protects pretermitted children who are—
i. Not provided for by any settlement; AND
ii. Neither provided for nor mentioned in the Will.
c. Policy: to make sure an after-born or after-adopted child inherits somewhat equally with his or her siblings—it’s as if the parents forgot to change their will.

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How is the pretermitted child treated under the EPTL when T had one or more children when the will was executed AND:
i. No provision is made for any children,
ii. The Will made gifts to the other children,
iii. 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 95

d. If the Testator had One or More Children When the Will was Executed AND:
i. No provision is made for any children, the pretermitted child inherits nothing.
ii. The Will made gifts to the other children, the pretermitted child shares in the amount to the other children as if a class gift was made.
iii. 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, the pretermitted child takes his intestate share—other beneficiaries have to kick in.

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e. If the Testator had NO CHILDREN when the will was executed, how is the pretermitted child treated under the EPTL?

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e. If the Testator had NO CHILDREN when the will was executed: then the pretermitted child takes his intestate share and the other beneficiaries have to kick back in.

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f. Review: when a residuary estate is left to T’s children in T’s Will, executed before T adopted another child.

i. When answering a question involving the inheritance of a pretermitted child you should ask...

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1. Is the child born or adopted after the Will is executed? If YES, then
2. Is the child not provided for by any settlement? If YES, then
3. Is the child neither provided for nor mentioned in the Will? If YES, then the child is pretermitted as intended by the statute.
ii. Result: The child will take the same share as his siblings as if a class gift was made because all three requirements were met. The child’s share will come out of the gifts to the other children, the same way a class gift would.

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When will a child not take a pretermitted child under the EPTL?

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1. If T took out a life insurance policy naming the pretermitted child as the primary beneficiary, the PC would not take as a PC because PCs do not take when they are provided for in another settlement.
a. Note—it does not matter how much the settlement is for… as long as it shows that the parent thought about the PC.
2. If T’s will does not provide for his existing children, PC gets nothing—the same as his siblings.

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If T had no children at the time his will was executed, how much will his pretermitted child take?

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iv. If T had no children at the time his will was executed—PC takes intestate share.
1. Result: This could be the entire estate if there is no spouse or ½ minus $50k if T’s spouse is alive.

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If T's will makes a "limited provision" for his existing children, and thereafter T adopts a pretermitted child, how much does the PC take?

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v. Limited Provision: if T’s will makes a “limited provision” for his existing children (i.e., $5 for A & B each), and thereafter T adopts PC—
1. Result: PC will take his intestate share which will come from all other beneficiaries proportionately.

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vi. Proportionality—if T executes a Will, devising a different amount to each child and then adopts PC, what results?

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1. Result: add the amounts together and then divide by the # of children including the after-born, and then this is the amount that the PC will be entitled to. This amount will not be paid equally by each of the other children, but rather will be paid proportionately to the amount of their share.
a. E.g., T leaves A $1 million and leaves B $5 million. Thereafter, T adopts PC and then dies. To calculate PC’s share  $1 million + $5 million = $6 million. $6 million / 3 = $2 million. PC is entitled to $2 million, of which A will pay 1/6 and B will pay 5/6.
2. Note—PC has to be in gestation to count. Mom has to at least be pregnant with PC when T dies for it to count.

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What is the negative bequest rule under the common law and in NY?

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A. Common Law Rule (applicable in most states): when a Will does not make a complete distribution of the estate (resulting in partial intestacy), words of disinheritance in the Will are ineffective with respect to property passing by intestacy.
a. Rationale: property passing by intestacy is governed by intestacy law, not by the testator’s Will.
B. New York’s “Negative Bequest” Rule: words of disinheritance are given full effect in partial intestacy.

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C. Example: negative bequest rule
a. Tammy’s Will devised her engagement ring to her son Simon and her residuary estate to her husband Huck. Her Will also provided: “I intentionally make no provision for my daughter Dorothy, as she has been a great disappointment to me.” Tammy divorced Huck in 2007 and died in 2010 without having changed her Will. She is survived by Simon and Dorothy. Dorothy has no children.

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i. Results:
1. Huck: will not take the residuary estate because the divorce decree revokes all gifts in T’s Will to him. The residuary estate will go into partial intestacy.
2. Dorothy:
a. At common law: Dorothy would take ½ of the residuary estate that falls into intestacy and Simon would take the other ½.
b. New York: treats Dorothy as if she predeceased T and so Simon takes the entire estate.
ii. Note: if Dorothy had children, they would take ½ of the residuary estate that falls into intestacy as Dorothy’s issue via the anti-lapse statute, since T did not disinherit Dorothy’s children.

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What is the rule with respect to “Satisfaction of Legacies” under the common law and under NY law?

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A. Lifetime Gift to Beneficiary—“Satisfaction of Legacies”
a. Note: “Satisfaction of Legacies” is the “Wills” equivalent of “Advancements” in intestacy.
b. At common law: a lifetime gift (made after the Will’s execution) to a beneficiary named in the testator’s Will was presumptively made in partial or total satisfaction of the legacy, to be taken into account when distributing the testator’s estate at death.
c. New York Rule: New York has rejected the “satisfaction of legacies” presumption by statute. Thus, there is no satisfaction of legacy unless proved by:
i. Contemporaneous writing made at the time of the gift, AND
ii. Signed by donor or the donee

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What is the rule with respect to Incorporation by Reference—Extrinsic Document—(when a will attempts to incorporate info found in another document) under the common law and under NY law?

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a. Incorporation by Reference—Extrinsic Document
i. Extrinsic Document: a document that is not part of the Will itself.
ii. Context: In almost all states, the terms of an extrinsic document can be incorporated by reference if: (i) the document was in existence when the Will was drafted, (ii) the Will shows an intent to incorporate the document, and (iii) the document is clearly identified by the language in the Will.
iii. New York Rule: we do NOT recognize incorporation by reference to an extrinsic document. Everything must be formally executed. For due execution, we need the seven points!
1. Exception: pour-over gifts.

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What is the significance of Nontestamentary Acts?

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b. Acts of Independent Significance (“Nontestamentary Acts”)
i. Doctrine: 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.
1. Example: T leaves “the auto that I own at my death to N” and “the furniture and furnishing in my living room” to S. T then upgrades his Taurus to a Porsche and places a Rembrant in his living room.
a. Result: N will get the Porsche and S will get the Rembrant.
2. Exception: titled documents (e.g., deeds, stocks certificates, bank passbooks) can only be transferred as mandated by law).

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What are the four classification of gifts?

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A. Classification of Gifts
a. Specific Gift: I devise Blueacre (my computer) to my son Seth
b. Demonstrative Gift: A general amount, but the testator designates a specific source from which the amount the amount is to be paid from. I bequeath $5 million, to be paid from the proceeds of the sale of my GM stock, to my daughter Diane.
c. General Legacy: a general amount. I give the sum of $5 million to my daughter Diane.
d. Residuary Disposition: I give all the rest, residue and remainder of my estate to my son Seth.
e. Intestate Property: where partial intestacy results and the Will as no residuary clause. I give $5 million to my good friend, Frank Fried. Frank predeceases testator.

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What is abatement and what is the order in which gifts are abated?

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B. Abatement
a. Rule: if there are more claims against the estate than there are assets to cover all gifts made under the Will, the gifts under the Will will abate.
i. Abatement: not giving effect to gifts so that creditors’ claims can be satisfied.
b. Order of “Abatement”: absent a provision in the Will, the order in which a testator’s property abates is—
i. Intestate & residuary property are treated the same; THEN
ii. General legacies & Demonstrative Legacies abate pro rata; THEN
iii. Specific gifts; AND ONLY THEN
iv. Items that qualify for the estate tax marital deduction.
c. Rule of Thumb: start at the first type of gift listed and then abate down

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What is ademption?

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a. Rule: 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 (without regard to the testator’s probable intent).
i. In other words: if specific gift does not exist, then the person getting the gift will lose.

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1. Example: T executed a Will that provided: I devise my Syracuse farmlands to my son Skipper, and my residuary estate to my daughter Daisy. Two years later, T sells all of her Syracuse farmlands for $100k in cash and a $900k note that is secured by a mortgage on the farmlands. T died six months later, survived by Skipper and Daisy.

What results?

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a. Result: Skipper takes nothing bc the farmlands are a specific gift that was sold and ademption applies to specific gifts. Skipper will not take the note or the mortgage bc the T’s Will says “my Syracuse farmland”—thus, the note and the mortgage become part of the residuary estate.

ii. Remember—ademption only applies to SPECIFIC GIFTS.

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Why do demonstrative legacies not adeem?

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b. Reason Demonstrative Legacies do NOT Adeem: A demonstrative legacy (a general gift from a specific sources) will turn into a general legacy if there is no cash available from the source designated.
i. In other words: if there is no cash in the estate or if the designated source is no longer in existence, other assets will be sold to satisfy a demonstrative legacy.

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What are the three statutory exclusions to ademption?

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c. Three Statutory Exclusions:
i. Insurance proceeds for lost, damaged or destroyed property: beneficiary takes insurance proceeds to the extent that they are paid after death.
ii. Proceeds received under an executory contract (i.e., a K that has not yet been performed): beneficiary gets proceeds which are paid after death.
iii. Proceeds from a guardian or conservator’s sale of specifically bequeathed property: beneficiary is entitled to receive money or property into which the proceeds of the sale or transfer can be traced. If they can’t be traced, you have ademption.

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When T gives a specific gift of enumbered property to A, on which T is personally liable, will the beneficiary be entitled to have the lien exonerated?

Under common law?
Under NY law?

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D. Specific Gifts of Encumbered Property—No Exoneration of Liens
a. Common Law Rule: if a testator makes a specific gift of property that is subject to a mortgage or other lien on which the testator is personally liable, the beneficiary is entitled to have the lien exonerated.
i. Exoneration: the discharge of any encumbrances on specifically bequeathed property using the residuary estate.
ii. Note: this concept may be examined on the MBE in a Real Property question in the state in question is said to follow the common law.
b. New York Rule: liens on specifically devised property are NOT exonerated, unless the Will directs exoneration.
i. This is the default rule, but the Will can change this!

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How are the following gifts categorized and which adeem?

a. Gifts of Shares of Stock in Publicly-Traded Corporations
b. Gifts of Shares of Stock in Closely-Held Companies
c. Gifts of Shares of Stock where a Stock Split Occurs

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E. Bequests of Shares of Stock and Other Securities
a. Gifts of Shares of Stock in Publicly-Traded Corporations are: general gifts that do not adeem.
i. Exception: gifts of shares of stock in publicly-traded corporations are specific gifts if the testator bequeaths “my… stock”
b. Gifts of Shares of Stock in Closely-Held Companies are: specific gifts and adeem if they do not exist.
c. Gifts of Shares of Stock where a Stock Split Occurs are: treated as a specific bequest for purposes of the split.
i. Note—it is irrelevant when dealing with stock splits whether the testator used “my” language, and/or whether the stock was publicly traded or closely-held. The type of legacy (specific, general, etc.) is irrelevant with stock splits… you get what’s there.

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Define probate estate and non-probate assets.

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A. Definitions
a. Probate Estate: Property that a testator owned solely in his name at the time of his death, which is disposed of pursuant to the terms of his Will or passes by intestacy.
b. Non-Probate Assets: interests in property that are not subject to disposition under the Will or via intestacy.

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What are the categories of non-probate estates?

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B. Categories of Non-Probate Assets:
a. Property passing by right of survivorship: e.g., a joint bank account, joint stock account, or payable on death securities.
b. Property passing by contract: including a life insurance policy or employee benefits payable to a beneficiary other than the decedent or decedent’s estate.
i. Note—you can manipulate whether asset is a probate or a non-probate asset.
ii. Note—if the insurance or benefits proceeds are paid to the testator’s executor or estate, the proceeds become probate assets.
c. Property held in trust
i. Note—the terms of the trust will govern the disposition of the trust assets.
d. Property over which decedent held a power of appointment.

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a. Toby has a $500k life insurance policy that names his wife Whoopi as beneficiary. Toby, still married to Whoopi, dies leaving a Will that provides: I direct that the proceeds of my life insurance policy be paid to my brother Boris. Who takes the $500k life insurance policy proceeds?

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i. Result: It passes to the designated beneficiary, Whoopi. The Will is ineffective w/ respect to non-probate property. BUT watch out if spouses are divorced.

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Explain how elective share works.

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A. Elective Share in General
a. Purpose of Statute: to protect the surviving spouse against disinheritance by giving him or her a minimum share of the testator’s probate estate.
i. Elective share: this will equal the greater of $50k or 1/3 of the estate.
b. Payment of Elective Share Amount
i. Calculation of Amount Payable: In theory, the elective share is only applied to the testator’s net probate estate.
1. Net probate estate: the value of the estate after payment of debts but before payment of estate taxes.
ii. Rule: if elective share is NOT satisfied for surviving spouse, others MUST contribute pro rata.
iii. Who Contributes to Payment? Beneficiaries under the Will, beneficiaries of “testamentary substitutes,” and/or intestate distributees.
1. Basically e/o has to kick in to make surviving spouse whole.

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Explain the differences between Surviving Spouse’s Elective versus Intestate Share.

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c. Surviving Spouse’s Elective versus Intestate Share: under intestacy, the surviving spouse takes the entire estate (if the testator is not survived by issue), OR $50k plus ½ the balance of the estate (if the testator is survived by issue.
i. Rule of Thumb: if the decedent died without a Will, the surviving souse’s intestate share will always be larger than his or her elective share, unless “testamentary substitutes” are involved.

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What are Testamentary Substitutes?

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B. Testamentary Substitutes:
a. Context: Since the elective share, theoretically, applies only to the testator’s probate estate, a testator intent on disinheriting his or her spouse could defeat the protection of the elective share statute by transferring non-probate assets to other persons.
b. General Rule: to prevent a testator from defeating the elective share statute, the elective share includes the probate estate AND testamentary substitutes (collectively known as the “augmented estate” or the “elective share estate”).

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What are the different categories of T-Subs?

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c. Testamentary Substitutes:

Remember TS LEG UP

1. T: Totten Trusts: including bank accounts in the testator’s name in trust for another (e.g., “A, Trustee for B”), and payable on death securities.
2. S: Survivorship Estates: including joint tenancies, tenancies by the entirety, joint bank accounts, and survivor bank accounts (if creates on or after Sept. 1, 1966).
a. Watch Out: for pre- and post-marriage scenarios.
3. L: Lifetime Transfers with strings attached
a. Transfers where the testator retains the power to revoke, invade, consume, or dispose of the principal, or name new beneficiaries; AND
b. Transfers (irrevocable) made during the marriage, where the testator retained a life estate (if irrevocably transferred on or after Sept. 1, 1992).
4. E: Employee pension, profit-sharing, and deferred compensation plans (if the testator designated the beneficiary of the plan on or after Sept. 1, 1992).
a. Note: if the plan is called a “qualified plan” only ½ is a T-Sub regardless of the beneficiary.
5. G: Gifts made within One Year of Death
a. Gifts in excess of $13k (the annual gift tax exclusion); AND
b. “Gifts causa mortis”: gifts made in fear of impending death (regardless of the amount of the gift).
6. U: U.S. Government Bonds and other P.O.D (pay on death) arrangements.
7. P: Powers of Appointment: Property over which the testator held a presently exercisable general power.
i. Rule of Thumb: if T has an interest over which he has power or can manipulate, it is going to be a T-Sub. Thus, almost all NON-PROBATE transfers are testamentary substitutes.

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What are not T-Subs?

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d. Not Testamentary Substitutes

Remember LOGPIT

1. L: Life Insurance: whether payable to the surviving spouse of a third party.
2. O: One-Half of a Qualified Pension and Profit-Sharing Benefits: if the testator named a beneficiary before Sept. 1, 1992 and did not change the beneficiary thereafter.
3. G: Gifts of Less than $13k made within one year of death (except gifts causa mortis)
4. P: Pre-marriage Irrevocable Transfers: a gift to a friend prior to marriage.
5. I: Irrevocable Transfers made more than One Year Before Death: transfers where the testator did not retain the power to revoke, invade, consume or dispose of the principal, or name new beneficiaries.
6. T: Transfers (irrevocable) made during the Marriage: where the testator retains a life estate (if irrevocably transferred before Sept. 1, 1992).
i. Rule of Thumb: generally if T does not have an interest / T cannot touch it, it is NOT a T-Sub.
1. Major Exception: life insurance—because you can always change the life insurance policy any time you wish.

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How do you calculate the amount of T-Subs?

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e. Calculating the Elective Share Estate: generally the full value of a testamentary substitute is included, EXCEPT
i. Survivorship estates involving the testator and a Third Party:
1. Consideration Furnished Test: When you have a dead spouse and third party, the consideration furnished test applies.
a. Test: the surviving spouse has the burden of proving the amount of decedent spouse’s contribution to the asset (either the asset’s acquisition if it’s real property or the amount on the deposit if it’s a joint bank account).
ii. Survivorship Estates involving the Testator and the SURVIVING SPOUSE: a one-half is automatically treated as a T-Sub, regardless of how much the dead spouse/surviving spouse contributed. This is to avoid fights.
iii. Survivorship estates CREATED BEFORE MARRIAGE involving the testator and a THIRD PARTY

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1. Example: W married H in 2002. In 2005, W and her sister S acquired title to the Brooklyn Bridge, taking title as joint tenants with right of survivorship. In 2006, W & H opened a joint bank account. W died in 2011, leaving a net probate estate of $300k. W’s Will devised Central Park (worth $75k), which she owned solely in her own name, to H, and her remaining estate (consisting of cash in the amount of $225k) to S.

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a. Distribution of the W-S joint tenancy: A T-Sub exists btw decedent spouse W and a TP, S. The surviving spouse H ahs the burden of proving the amt of consideration furnished by dead spouse W for the property. H is entitled to claim an elective share in his decedent’s spouse property, but not in someone else’s property.
i. Rationale: the surviving spouse is entitled to claim an elective share in his decedent’s spouse’s property, not in someone else’s property.
b. What is the distribution of the W-H joint account? T-Sub btw dead W and surviving H. Half is automatically a T-Sub. It doesn’t matter who deposits.
2. See example 43 on p. 68 of outline

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1. Example of this survivorship estate: suppose that the W-S joint tenancy was created before W married H. Again, assume that H proves that W furnished all the funds used to buy the joint tenancy property (the Brooklyn Bridge). What amount is included in calculating H’s elective share?

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a. Identify: dead spouse + third party + pre-marriage property
b. Rule: the consideration furnished test applies, BUT only ½ of the property’s value is a T-Sub because pre-marriage gifts are not testamentary substitutes.
c. Rationale: when the testator acquired the property in joint tenancy, the testator made an irrevocable gift of a ½ interest to the other joint tenant. Since this is a pre-marriage irrevocable transfer, the third party joint tenant’s ½ is not a testamentary substitute. THE MOST THAT COULD BE INCLUDED WITH A TESATOR AND THIRD PARTY PRIOR TO THE MARRIAGE USING THE CONSIDERATION FURNISHED TEST IS ½.
d. Note—The same rule applies to joint bank accounts involving the testator and third parties, to the extent that deposits were made before the marriage.

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What is the rule with respect to elective share and intestacy?

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f. Elective Share and Intestacy
i. Rule: a surviving spouse has a right of election if the decedent left no will.
1. Rationale: This is to protect the spouse from the decedent’s depleting his estate by making gifts that would qualify as testamentary substitutes and then dying intestate.

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1. Ex. 44: H died and is survived by his wife W. They had no children. H left $100k in a bank account in his name in trust for his cousin, C [Totten Trust]. He had no other assets solely in his name. H did, however, have a joint bank account with his friend, F, which he created after his marriage to W. H contributed all of the money to this joint bank account. At the time of H’s death, the joint account’s balance was $140k. What is W entitled to?

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a. Under intestacy: Nothing! There are no assets under the bank accounts.
b. Via elective share:
c. $100K Totten Trust
+ $140K Joint accout w/ TP (Cons. Furnished)
$240K Elective Share Estate

$80K Elective share amount (1/3 of elective share estate)

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2. Ex 44 Amended: Suppose H also left real property (worth $120k) that he purchased and held with W as tenants by the entirety (as H&W). What is W entitled to?

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a. Under intestacy: Nothing! Real property will pass by operation of law.

b. Via Elective Share:
$100K Totten Trust
$140K Joint accout w/ TP (Cons. Furnished)
+ $60K Tenancy by the entirety (½ is a T-Sub)
$300K Elective Share Estate

$100K Elective share estate (1/3 of elective share estate)

c. How is W’s elective share satisfied?
(-$60K) Amount passing to W as a T-Sub (½ of tenancy)
$40K Amount W will receive from others (Net elective share— ½ in ½ out for joint ownership T-Subs

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3. Ex 44 Further Amended: In addition to the tenancy by the entirety property held as husband and wife (worth $120K), suppose H also left intestate property solely in his name of $90K.

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a. Under intestacy: W gets $90k

b. Via Elective Share:
$100K Totten Trust
$140K Joint accout w/ TP (Cons. Furnished)
$60K Tenancy by the entirety (½ is a T-Sub) [ ½ in]
+ $90K Intestate property
$390K Elective Share Estate

$130K Elective share estate (1/3 of elective share estate)

**Note—even if W is getting s/t in intestacy, you still must look to see what W’s elective share is to see if there are any T-Subs out there.

c. How is W’s elective share satisfied?
(-$60K) Amount passing to W as a T-Sub (½ of tenancy)
(-$90K) Amount passing to W under intestacy
(-$40K) W’s elective share is satisfied.

***Note—if the surviving spouse’s elective share is satisfied, the spouse has NO right of election.

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4. Ex 45: H left a $300K probate estate after payment of debts and expenses. His Will bequeathed Good stock (worth $50K) to his wife W, $50K to his son S, $50k to his brother B, and his residuary estate (worth $150k to his friend F. No testamentary substitutes are involved. W files for an elective share. The elective share amount is $100k (1/3 of $300k). W takes the Google stock. The net elective share to which she is entitled is $50k.

How is W’s elective share satisfied?

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a. All beneficiaries contribute pro rata.

$50k we need to come up with [numerator] 20% of remain
The $250 in remaining assets [denominator] assets to W

S pays 1/5 of $50k = $10k
B pas 1/5 of $50k = $10k
F pays 1/5 of $150k = $30k

b. Note—if you cannot do the math, just say all beneficiaries contribute pro rata. BUT you will get extra points if you can do the math!!
c. Note—Beneficiaries do NOT have to get actual assets back… they only are required to cough up the money.

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Do Elective Share Trusts Satisfy the Surviving Spouse’s Right of Election?

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C. Elective Share Trusts Do Not Satisfy the Surviving Spouse’s Right of Election
a. Background:
Testators who DIED before September 1, 1994 could defeat the right to an elective share through the use of an elective share trust that gave the surviving spouse a life estate (an income interest for life), as long as he or she was given at least $50k outright. If the sum of the outright disposition of $50k AND the principal of the rust equaled or exceeded the 1/3 elective share amount, then the surviving spouse had no right of election.

b. Rule:
For estates of decedents DYING on or after September 1, 1994, a life estate (or other “terminable interest”) will not satisfy the surviving spouse’s elective share of entitlement.
i. Note—the date of the testator’s death, not the date of his Will was executed is controlling.
c. On the Bar Exam:
You could be given a Will which contains an elective share trust, with a testator dying on or after September 1, 1994.
d. Effect on the Trust if the Surviving Spouse Files for An Elective Share:
Read the trust as though the surviving spouse predeceased the testator. As if there was no life estate in the surviving spouse “and accelerate to the remainderman.” [use these buzz words]
i. In other words: kill the trust.
ii. See Example 46 on p. 72-73

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What is the elective share quick formula?

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e. Elective Share Quick Formula

Net Probate Estate/Intestate Estate
+ T-Subs (full value) (e.g., Totten Trusts)
+ T-Subs with surviving spouse (½ in)
+ T-Subs with third parties (consideration furnished)
Elective Share Estate

1/3 of elective share estate = Elective Share Amount

Is the Surviving Spouse Satisfied?
Elective Share Amount
– Amount surviving spouse receives under Will or via Intestacy
– T-Subs with surviving spouse (½ out)
Net Elective Share

REMEMBER: if the surviving spouse is not fully “satisfied,” all other beneficiaries contribute pro rata. Also, watch out for “Elective Share Trusts.”

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What are the procedural rules governing elective share with respect to filing?

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a. Filing:
i. If the estate is admitted to probate: the surviving spouse’s notice of election must be filed within six months after Letters (either Letters Testamentary or Letters of Administration) are issued by the Surrogate’s Court at the start of the probate proceeding.
ii. If there is no state administration: the notice of election must be filed no more than two years after the tesator’s death.

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The right of election is personal to the surviving spouse because the purpose of the elective share statute is to protect the spouse, not her heirs.

Therefore, who can make an election for the spouse on the spouse's behalf if the spouse is incapacitated.

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Therefore, although an executor or administrator cannot elect, the guardian or conservator of an incapacitated spouse may elect (with Court approval).

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Can the right of election be waived? If so, how?

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c. Waiver: The right of election can be waived, with or without consideration, in a writing, signed and acknowledged before a notary public (e.g., in a premarital agreement);
i. before or after marriage; and
ii. as to a particular Will or testamentary substitute, or as to all Wills and testamentary substitutes in general.

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If a spouse waives her right to elective share, what affect does this have on specific gifts bequest to the spouse in T's Will?

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d. **REMEMBER: an explicit waiver of all rights in the testator’s estate waives the surviving spouse’s right to an elective share or intestate share, but does not waive his or her right to specific gifts under the testator’s Will. There must also be explicit waiver of such bequests including “Exempt Property.”
i. Note—a spouse can elect to exercise her right of election during the 120hr period of simultaneous death. The simultaneous death statute only applies to the distribution of property.

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What are the multijurisdictional problems that arise with elective share?

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a. Rule: only a spouse of a decedent domiciled in New York at the time of his death has a right of election.
b. Exception: the surviving spouse can claim an elective share with regard to the testator’s real estate property in New York if the testator expressly states in his Will that the disposition of that property is to be governed by New York law.
c. Otherwise: the testator’s Will is admitted to probate and his entire estate is administered in his state of domicile, but “ancillary administration proceedings” will be required in New York to clear title of the New York property (under the “situs rule”).

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What is exempt property?

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F. Exempt Property
a. Definition: items which the surviving spouse gets first (off the top) before anything else
i. i.e., bequests under the will, partial intestacy or full intestacy, before figuring out elective share, before even dealing with creditors because they are person.
b. Exempt Personal Property Set-Aside: In addition to elective share, the surviving spouse is entitled to exempt personal property up to $92,500 in value including:
i. One car (up to $25k in value)
ii. Furniture, appliances, electronics, etc. (up to $20k in value);
iii. Cash allowances (up to $25k)
1. Note—cash allowances are not subject to creditor’s claims, other than claims for funeral expenses
iv. Animals, farm machinery, tractors, etc. (up to $20k); and
v. Book, DVDs, CDs, software, etc. (up to $2500)
c. Bar Exam Tip: in any question involving a surviving spouse, mention the exempt personal property set-aside. This stuff can also go to the kid if they are under 21 and there is no spouse in the picture.
i. Note—unless bar examiners put this into play (i.e., they mention a tractor), only add this as an afterthought because the numbers WILL be ugly.

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What Circumstances Disqualifies Spouse from Taking Elective Share (and Exempt Property)

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G. Circumstances Disqualifying Spouse from Taking Elective Share (and Exempt Property)
a. Acronym: As in intestacy, the acronym is DISMAL
i. D: Divorce: a final decree of divorce or annulment valid under NY Law.
ii. I: Invalid Divorce/annulment: procured by the surviving spouse
iii. S: Separation Decree (not agreement): rendered against the surviving spouse.
iv. M: Marriage is void: as incestuous or bigamous
v. AL: Abandonment and Lack of Support: by the surviving spouse

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Note on a case going up to the Court of Appeals regarding elective share--

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b. Case going up to NY CoA:
i. Facts:
1. 47 year old married 99 year old 1 year before he died. Marriage was kept secret from his entire family. After he died, the legitimacy of the marriage was questioned due to his mental capacity & due to the fact that this woman was entitled to get a large cut of his $5 million estate.

ii. Held:
1. Marriage was valid at the time of the decedent’s death—a voidable marriage only becomes void upon a court declaration. Right to election is not affected even if marriage is annulled post-death.
2. Court went through DISMAL elements that knock a spouse out.
3. Even though facts of marriage seem questionable, court gave W money out of her elective share.

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Define the following:

a. Donor:
b. Donee:
c. Power of Appointment:
d. Takers in Default:

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A. Definitions:
a. Donor: the creator of the power
b. Donee: the person who is given the power to use.
c. Power of Appointment: an authority created in (or reserved by) a donee enabling the donee to designate, within the limits prescribed by the donor, the persons who shall take the donor’s property and the manner in which they take it.
i. Note—when a person reserves a power in herself, she is both the donor and the donee of the power.
d. Takers in Default: person who take property if donee fails to correctly exercise power.

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What is the purpose of Power of Appointment

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B. Purpose of Power of Appointment
a. Allows someone to look at facts in existence at a later date for distribution of property.

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What are the different classifications of powers of appointment?

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a. Classifications:
i. General Power of Appointment: a one can appoint herself, her creditors, or her estate as if she owned the property herself.

ii. Special Power of Appointment (“limited power of appointment”): the donee CANNOT appoint to herself—typically there’s a limited class to whom the donee can appoint (e.g., “to the issue of my brother).

iii. Presently Exercisable Power of Appointment: donee can exercise this power in her lifetime / maybe in an inter vivos trust.

iv. Testamentary Power of Appointment: donee can appoint ONLY by will.
b. Exam Tip: in any power of appointment question, first classify the power. The words creating the power will give away the type of power you’re dealing with.
c. Examples—see 79-81

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D. Powers of Appointment and Elective Share
a. Example—Dana is married to Harold. Dana dies. Harold files for an elective share to take 1/3 of Dana’s net probate estate. Which of the following, if held by Dana would be a testamentary substitute for elective share purposes?

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i. General presently exercisable power of appointment (“during her lifetime Dana can appoint the trust property to anyone, including herself, by a written instrument delivered to the trustee”):
1. This is a T-Sub. D can appoint it to herself, her spouse, her estate. D can touch the property (principal) during her lifetime. This would be the “P” in LEG UP.
2. Then what? Look to see who/when the property is appointed to (i.e., before or after marriage). Then you follow the regular T-Sub rules.
a. I.e., if D left all her estate to a third party after marriage, then all would be included in the T-Sub calculations (consideration furnished).

ii. General testamentary power of appointment (“and on Dana’s death, the principal shall be distributed to such persons as she appoints by Will, including her estate”)
1. This is NOT a T-Sub. Because D cannot get to the trust property during her life time. The property is not hers to begin with!

iii. Special Power of Appointment (“and on Dana’s death, the trustee shall distribute the principal to such of Dana’s descendents as Dana appoints by her Will”)
1. This is NOT a T-Sub. Because D cannot get to the trust property during her life time. Also, she is getting told what to do with the property!

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What are the Donnee’s Creditors’ Rights to the Donor’s Property with respect to power of appointment?

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E. The Donnee’s Creditors’ Rights to the Donor’s Property
a. General Presently Exercisable Power of Appointment
i. Rule: A donee’s creditors CAN reach the assets that are subject to a presently exercisable general power. Creditors can reach these assets even if donee fails to exercise her power.
b. Special Presently Exercisable Power of Appointment
i. Rule: Creditors CANNOT reach the assets that are subject to the power of appointment because they are limited to a special class. Since the donee did not appoint herself, her creditors cannot get at these assets.
c. General Testamentary Power of Appointment
i. Rule: Donee’s creditors CANNOT reach the assets that are subject to the power of appointment, except if:
1. Donee was both donor and donee of the power of appointment (D gives X income for life & appoints herself PoA) OR
2. Donee exercises the PoA in favor of her estate.

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What are the RAP Rules?

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a. RAP (Rules Against Perpetuities)
i. Deals with: vesting only
ii. For an interest to be valid under RAP: it must vest within lives in being at the time of the grant (LIB), plus 21 years
iii. Look at the facts to ensure that: there is no way that vesting could occur outside the perpetuities period. If there is any such chance, the interest is void.

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What are the rules regarding the power of suspension?

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b. Suspension Rule—only NY Rule
i. Deals with: the possible suspension of the ability to transfer a fee simple (note—this has nothing to do with vesting).
ii. For an interest to be valid under the Rule: there must be identified persons who could, together, convey a fee simple absolute within “LIB plus 21 years.”
iii. Look at the facts to ensure that: there are persons identified and alive who could join to theoretically convey a fee simple absolute. If not, the interest is void. (note—it is important to identify what type of power of appointment you have.)

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What are is statutory spendthrift rule?

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i. Rule: income beneficiaries cannot assign or convey their income interest.

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What is NY Perpetuities Reform Statute and how does it interaction with RAP and Suspension rule violations?

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d. REMEMBER: the NY Perpetuities Reform Statute saves gifts from RAP and Suspension Rule violations by reducing age contingencies to 21 years. (Also refer to applicable reform provisions in the Real Property NY Distinctions Supplement).

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What is the step-by-step process to analyze whether a power of appointment comports with RAP and the Power of Suspension rules?

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B. Step-by-Step Analysis:
a. First: identify the type of power
b. Second: is the power itself valid (note—this will not be the problem)
c. Third: are the interest created by the power valid?

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Powers to Appoint and Remainder Interests:

a. Example 53: Trent dies, leaving a Will that devised property in trust: “Income to my daughter Dana for life, and on her death the principal shall be distributed outright or in further trust to such of Dana’s issue as she appoints by Will, and in default of such appointment, to Dana’s issue.” Dana dies two years later, leaving a Will that distributes the principal outright “to such of my children as live to attain the age of 30.”

Which are valid?

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i. First: Identify the Type of Power of Appointment
1. Here: we have a special testamentary power of appointment
ii. Second: Is the Power Itself Valid?
1. Rule: to be valid, a special or general testamentary power of appointment must be certain to be exercised within LIB plus 21 years.
2. Here: the power itself is valid because Dana was a LIB when the power was created.
3. Rule of Thumb: if such a power is given to a person who is a LIB at the time the rule is created, the power is valid.
iii. Third: Are the interests created by the power valid?
1. Rule: to be valid, interests created by the exercise of a special power of appointment OR a general testamentary power of appointment are measured from the date of the instrument creating the power nto the date of the power’s exercise.
a. Note—under New York law, we treat the donee of the power as the donor’s agent. The donee is merely “filling in the blanks” in the donor’s Will or trust.
2. Here: we “fill in the blanks” and read Trent’s Will as though it read, “to Dana for life, then to such of her children as live to attain the age of 30.
a. [D’s children have to reach the age of 30 for the power to vest]
iv. The Remainder Interest Violates RAP and the Suspension Rule
1. However, we are aided by the “second-look” doctrine or the “wait-and-see” doctrine.
2. Rule: To determine the validity of interests created by the exercise of either a general testamentary power of appointment OR a special power of appointment, we “wait and see” what happens. You look at the time the POA IS EXERCISED and “fill in the blanks” with the facts in existence when the donee EXERCISES THE POWER. This allows a donee to manipulate the future.
a. NOTE—the second-look doctrine ONLY applies to these two types of PoAs and NOT normal trusts.

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What is the RAP and Suspension Checklist?

See pages 27-32 in outline for examples.

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b. RAP AND SUSPENSION RULE CHECKLIST (**4 rule/ 6 rule/ 10 rule)

i. **Identify the interest
ii. Determine whether you are “measuring” from the date of creation or the date of exercise.
iii. Determine whether the “Second Look Doctrine” applies
iv. **Give the RAP Rule
v. Find a LIB and run with it.
vi. **Most likely, apply the NY Reform Statute
vii. **Given the Suspension Rule
viii. Look to see if there is an income interest in an unborn beneficiary, and state that the income interest is void; OR
ix. Go further by giving the Statutory Spendthrift Rule, and state that the income interest is void (might be saved by the NY Reform Statute).
x. Don’t forget to deal with the remainder interests

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Will Contests-- Mistake

Will the plain meaning of a will ever be overturned by extrinsic evidence?

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A. Mistake
a. Rule: absent suspicious circumstances, it is conclusively presumed that—the testator read the will and intended its consequences. Thus, the plain meaning of the will Will not be overturned by extrinsic evidence.

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Will Contests--

Define latent ambiguity

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i. Definition: a latent ambiguity is a misdescription—error is NOT evident by look at the face of the Will (i.e., a misdescription of the property conveyed in a will).

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Will Contests--

Is extrinsic evidence admissible to clarify or determine the meaning of T's words when there is a latent ambiguity?

If so, what type of evidence is admissible?

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ii. Extrinsic Evidence: this is admissible to clarify or determine the meaning of T’s words when there is a latent ambiguity.
1. Facts and circumstances evidence IS admissible (e.g., Evidence about the testator, his family, the claimants under the Will and their relationships to the testator, the testator’s habits and thoughts, etc.)
2. Evidence of the testator’s declarations of intent to third parties IS admissible (e.g., Thomas told a friend that he had bequeathed $10k to his nephew James John Jones).
3. Evidence of the testator’s statements to the attorney who prepared the Will is admissible.

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Will Contests--

What results if extrinsic evidence cannot cure a latent ambiguity?

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iii. If extrinsic evidence does not cure the ambiguity: then the gift fails because there is no ascertainable beneficiary.

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Will Contests--

What is a patent ambiguity?

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i. Definition: a patent ambiguity is obvious error on the face of the will.
1. Example: Sluggo’s will provides: I give the sum of twenty five dollars ($25,000) to my good friend Steve.

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Will Contests--

Is extrinsic evidence admissible to clarify or determine the meaning of T's words when there is a patent ambiguity?

If so, what type of evidence is admissible?

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ii. Extrinsic Evidence: IS admissible.
1. “Facts and circumstances” evidence IS admissible
2. Evidence of the testator’s declaration of intent to third parties IS NOT admissible because we don’t want third party declarations that contradict what the will said!
3. Evidence of the testator’s statements to the attorney who prepared the Will IS admissible.

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What is a conditional will?

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a. Definition: a will that expressly provides that it will be operative ONLY if some condition is met.
i. Example: Sluggo duly executed a Will, which provides: I am going on a fishing trip to the Bermuda Triangle. If anything happens to me on this trip, I leave all of my property (including my “Speedo”), to my goods friends, Chris and Matt, in equal shares. Sluggo fished the Bermuda Triangle during Spring Break, returned from the trip in July, and died seventy years later without having changed his Will, which is found in his desk drawer. Do Chris and Matt take under the Will (including the 70-year-old “Speedo”).

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How should you deal with a conditional will on the bar exam?

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b. On the Bar Exam: argue both ways—Bar would have to tell you what was in T’s head.
i. Argument #1: The Will is a conditional Will. Probate would be denied because the condition did not occur (i.e., Sluggo survived his trip)
ii. Argument #2: Sluggo’s reference to the trip merely reflects his motive or inducement for making a Will (i.e., the dangers he faced caused him to think of the possibility of death, and thus the need for a Will).

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What is a contract to make a will and how will you be tested on this on the bar?

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a. Definition of a Joint Will: it is two people & one document
b. Issue: whether a Joint Will was executed pursuant to a contract that the survivor would not revoke the Joint Will after the death of the other spouse.
i. Rule: contract to make a Will or not to revoke a Will can ONLY be established by an express statement of intent that the Will provisions are to create a contract between the parties (i.e., this must be expressly provided for).
ii. Note—the court will not find that a contract of non-revocation was intended merely because the Joint Will uses possessive pronouns (e.g., we, us, our) in making dispositions of the combined estates.

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c. If a Joint Will is a contractual Will and the survivor breaches the contract by executing a later Will with inconsistent provisions:

i. Example 56: Matt and Lisa executed a Joint Will with an express statement of intent. The Will stated that each of their assets are to go to whoever survives the other, and upon the survivor’s death, the assets would be divided equally amongst their children, Chris, Jill and Marc. Matt predeceased Lisa as his years of carousing eventually caught up to him. Lisa remarried (finding true love), and had more children and executed a new Will changing the beneficiaries from her children with Matt to her children with Steven (Husband 2), along with other assorted dispositions. Who inherits upon Lisa’s death?

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1. Step 1: probate L’s new will even though will #1 was written as a contract (the law relating to Wills controls to this extent).
2. Step 2: impose a constructive trust in favor of the intended beneficiaries of will #1 (for Chris, Jill, Mark)
3. Why? Because there may be other assets in will #2 going to other beneficiaries BUT you still have to keep contract with the first guys.
a. Note—a contractual joint Will can be revoked by agreement between the parties while they are both alive, but the deceased spouse’s estate cannot revoke a contractual Will on behalf of the deceased spouse.

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Testamentary Capacity--

What is the requisite testamentary capacity?

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a. A Testator Must Have Sufficient Capacity To:
i. Understand the nature of the act (i.e., he must understand that he was writing a Will).
ii. Know the nature and approximate value of his property
iii. Know the natural object of his bounty (i.e., He must know his family members and loved ones); AND
iv. Understand the dispositions (i.e., the gifts he was making).


b. Case Law Application
i. Facts: six months before she executed her Will, the testator was adjudicated incompetent and a guardian was appointed to manager her affairs.
ii. Court’s Ruling: the Surrogate’s Court entered a directed verdict that the testator lacked capacity to make a Will on that basis.
iii. Overruled: The ruling IS NOT proper because capacity to make a will requires less capacity than any other legal instrument (i.e., like a contract). Thus, a court could find that T executed a will during a “lucid interval”—courts do not like to throw out wills, when the four points above have been satisfied.

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What is an insane delusion and what effect will it have on a will?

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Although a testator may be otherwise of sound mind, a Will may be invalid if it is the product of an insane delusion (i.e., a persistent belief in supposed facts that have no real existence except in the testator's perverted imagination, and that are against all evidence and probability).

However, the mere fact that a testator had delusions does NOT in itself constitute testamentary incapacity unless the delusions relate to the proeprty being disposed of or the persons concerned, and therefore control the exercise of the testamentary will.

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What is the legal test for undue influence?

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Undue Influence: the testator has testamentary capacity but is subject to, and controlled by, a dominant influence of power that subverts the intent of the testator, causing him to execute a testamentary instrument that does not manifest his will, but rather the will of the party exerting influence.

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If one is contesting a will on the grounds of undue influence, what must this person establish?

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i. The Will Contestant Has the Burden of Proving:

1. The Will Contestant has the Burden of Proving:
a. the existence/exertion of influence
b. the effect of such influence was to overpower the mind and will of the testator
c. the product is a will or a gift in a will which would not have happened “BUT FOR” that influence
i. Note—“Influence is not undue unless the free agency of the testator was destroyed such that the Will produced is essentially a Will, not of the testator, but of the one exerting the influence.

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What evidence will always be insufficient to establish undue influence?

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2. Evidence of Undue Influence: While evidence of undue influence is usually circumstantial, these situations alone are insufficient to constitute undue influence:
a. Opportunity to exert influence alone is insufficient (e.g., the fact that the child who received the largest share of his mother’s estate lived with her, wrote checks for her, helped her with her income tax returns, and held a power of attorney is not evidence that the child took advantage of the opportunity influence the parent).
b. Susceptibility to influence because of age or illness alone is insufficient (e.g., the fact that the mother was very old, had a broken hip, had memory lapses, or took Valium is insufficient evidence of undue influence).
c. Unequal dispositions alone is insufficient (e.g., the fact that some children take less than others or are excluded entirely is insufficient evidence of undue influence)

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When can a Will contestant satisfy his burden of proof by an inference of undue influence?

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3. Inference of Undue Influence: A Will contestant can satisfy his burden of proof by an inference of undue influence if:
a. A will makes a gift to one in a confidential relationship
b. The person was active in preparing the will UNLESS the inference is rebutted.

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If a will makes a bequest to a drafting attorney, what results?

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4. **Bequests to Drafting Attorney: Even if no objection is filed, the Surrogate’s Court automatically inquires into whether a bequest to the drafting attorney was voluntarily made (known as a Putnam Scrutiny).

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What is the result if a will appoints the drafting attorney as the executor of the estate?

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5. Appointments of Drafting Attorney
Example of an Appointment—N executes a Will that names her lawyer Carl (N’s longtime attorney who prepared the Will) as executor of N’s estate.
a. Under NY Law
i. A drafting attorney who is named as executor of the testator’s estate must give written disclosure to the testator that:
1. Any person can be named executor, not just an attorney.
2. Executor receives a statutory commission based on the size of the state; AND
3. Attorney also is entitled to legal fees for representing the estate.
ii. The testator/client must sign the written disclosure in the presence of two witnesses
iii. Effect of Failure on part of Attorney to Comply with Statute: If the drafting attorney fails to comply with the statute the attorney will receive only ½ of the statutory commission

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What is a No-Contest Clause (“In Terrorem Clauses)?

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F. No-Contest (“In Terrorem Clauses)—Recent Court of Appeals case handed down
a. Definition: a clause in the will saying that if anyone objects to my will, the will get NOTHING!

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How do most states treat No-Contest Clause (“In Terrorem Clauses)?

NY? Are there exceptions to the NY Rule?

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b. In Most States: no-contest clauses are given full effect unless the Court finds that the contest was brought in good faith and with probable cause (i.e., the contest was not a frivolous suit designed to extract a settlement)
c. New York Rule: the clause is given full effect even if there was probable cause to challenge the will.
i. Rationale: a testator should be permitted to protect his testamentary plan and his reputation against post-death attack.

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How does NY treat No-Contest Clause (“In Terrorem Clauses)?

? Are there exceptions to the NY Rule?

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c. New York Rule: the clause is given full effect even if there was probable cause to challenge the will.
i. Rationale: a testator should be permitted to protect his testamentary plan and his reputation against post-death attack.
d. Exceptions to the New York Rule (No-Contest Clauses NOT enforced)—If the Will contest is:
i. Claim of forgery or that the Will was revoked by a later Will if the Surrogate Court finds that there was probable cause for the contest
1. Note—the exception WILL NOT apply if the Will contest is on the ground that the testator’s Will was revoked by physical act.
ii. Filed on behalf of an infant or incompetent
1. Rationale—Actions taken by a third party (e.g., a guardian) should not work a forfeiture
iii. A construction proceeding to construe the Will
1. Rationale—the Will contestant is not challenging the Will. Here is merely asking the Court to determine what interests are created by it.
iv. Objection to the jurisdiction of the court
1. Rationale—if the testator was domiciled in a state other than New York, the Will contestant is not challenging the Will. He is merely stating that the Will should be probated in that other jurisdiction.

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What is the safe harbor provision with respect to No-Contest Clauses?

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e. “Safe Harbor Provisions”: a person who is considering contesting a will that contains a no-contest clause may examine in discovery
i. The person who prepared a Will
ii. The attesting witness
iii. The Will’s proponents
iv. The nominated executors

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What is the Singer Case's significance with respect to No-Contest Clauses?

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f. Note—(Recent Court of Appeals Case & Legislation Action)
i. Codified language after Singer Case—“In special circumstances,” the court has discretion to allow the deposition of a person with information of “potential value or relevance”
1. But no contest clauses can be drafted to preclude this type of inquiry

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What is a power of attorney?

Durable versus nondurable?

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A. Powers of Attorney: A power of attorney is a written authorization for an agent (known as an “attorney-in-fact”) to act on behalf of the grantor of the power. They may be general or specific, with as many variations as the drafter of the power wishes to contrive under the circumstances.
a. Non-Durable Powers of Attorney: A power of attorney that is revoked by operations of law by either the grantor’s death or incapacity. The power of attorney remains valid until notice of the death or disability is received by the attorney-in-fact.
b. Durable Powers of Attorney: A power of attorney that extends beyond the grantor’s incapacity unless it has specific language that it is terminated by the grantor’s incapacity (e.g., This power of attorney shall terminate upon my subsequent disability or incompetence)

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What is a health care proxy?

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B. Health Care Proxies
a. A health care proxy is a type of durable power of attorney that appoints an agent to make health care decisions on behalf of the grantor. It does not become effective until the grantor becomes incapacitated, and it remains effective despite the incapacity. A health care proxy must be:
i. In writing;
ii. Signed by the grantor or another at his direction; and
iii. Witnessed by at least two adults
b. The health care proxy must state that the grantor appeared to execute the proxy free from duress.

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What is a living will and do NY courts recognize them?

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C. Living Wills:
a. A living will generally states an individual desires, should he become terminally ill or be in a persistent vegetative state, regarding whether to administer, withhold or withdraw:
i. Life sustaining procedures;
ii. Artificial nutrition or hydration, and
iii. Treatment to alleviate pain.

b. The NY Court of Appeals has held that a patient’s right to decline treatment is guaranteed by the common law.