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138 Cards in this Set
- Front
- Back
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Main topics 1-10
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1. Intestacy Rules
2. Validity of wills 3. Revocation of wills 4. Death of Beneficiary During Testator's Lifetime 5. Class Gifts 6. Simultaneous Deaths 7. Change in Testator's Family after Will is Executed 8. Negative Bequests 9. Variations to Testate Distributions 10. Changes in Distributions of Testamentary Gifts |
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Main topics 11-
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11. Non-probate assets
12. Elective Share Statute 13. Powers of appointment 14. Powers of appointment and RAP 15. Will contests 16. Powers of attorney, Health Care Proxies, and Living Wills 17. Estate Tax |
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INTESTACY RULES
Application |
Rules apply when:
1. Decedent left no will 2. Decedent did not properly execute will 3. Decedent left will but did not completely distribute estate 4. Will successfully challenged by distributee and denied probate |
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INTESTACY RULES
Appointment of administrator |
Order of priority:
1. Surviving spouse 2. Children 3. Grandchildren 4. Parent 5. Silblings 6. Any other distributee |
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INTESTACY RULES
Distribution Decedent survived by spouse and no children |
Spouse takes whole estate
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INTESTACY RULES
Distribution Decedent survived by spouse and children |
Spouse: 50K plus 1/2 residuary
Issue: any residuary |
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INTESTACY RULES
Distribution Decedent survived by children only |
Children take estate in equal sahres
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INTESTACY RULES
Distribution Decedent survived by children and issue of predeceased children |
1. Divide estate into number of shares equal to total members (living and dead) of generation with surviving members,
2. LIving issue at first generation take one share each 3. Shares of deceased at first generation combined, divided equally among survivors at next generation |
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INTESTACY RULES
Distribution Decedent not survived by spouse or issue |
Distribution to:
1. Parents 2. Siblings and issue 3. Grandparents and issue 4. Great grandchildren of grandparents 5. Escheat to NY |
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INTESTACY RULES
Per Stirpes v Per Capita |
Per Capita: Each member of generation takes equally
Per stirpes: issue of predeceased child takes issue predeceased would have taken |
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INTESTACY RULES
Inheritance rights of children Adopted children |
1. Full inheritance rights between adopting family and adopted child
2. No inheritance rights as to birth parents or other members of birth family, UNLESS adopted by spouse of birth parent, in which case rights against either birth parent AND adoptive spouse 3. Child adopted by relative--inheritance under birth relationship unless decedent was adopting parent, in which case takes under adoptive relationship |
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INTESTACY RULES
Inheritance rights of children Nonmarital children General rule |
Full inheritance from birth mother and birth mother's family
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INTESTACY RULES
Inheritance rights of children Non-marital children Inheritance from birth father |
Only if paternity established by:
1. Marriage to birth mother 2. Order of filiation in paternity suit 3. Affidavit of paternity with Putative Father Registry 4. Clear and convincing evidence -- DNA genetic marker test -- open and notorious acknowledgment -- Participation in child's life beyond simple support |
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INTESTACY RULES
Variations to intestate distributions Circumstances Disqualifying Spouse from Taking Intestate Share |
DISMAL:
Divorce Invalid divorce Separation decree Marriage is invalid Abandonment Lack of support -- Treat disqualified spouse as if PDd, drop share to kids -- if a slayer, create constructive trust; sever joint tenancy |
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INTESTACY RULES
Variations to intestate distributions Lifetime gifts to intestate distributee |
CL: lifetime gift to child presumptively an advancement
NY: NO advancement unless: -- contemporaneous writing made at time of gift -- signed by donor or the donee |
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INTESTACY RULES
Variations to intestate distributions Disclaimer ("Renunciation") by intestate distributee |
1. To be valid, must be:
-- Writing, signed, and notary acknowledged -- With affidavit stating no consideration -- Irrevocable -- File with surrogate's court with 9 months of date 2. Disclaimant treated as if PDd, unless would screw someone else up, in which case death one day after 3. Disclaimer to avoid takes, avoid creditors, but NOT to affect Medicaid or Medicare |
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VALIDITY OF WILLS
Topics |
1. Requirements of a Duly Executed Will
2. Interested Witness Statute 3. Foreign Wills Act 4. Holographic and Nuncupative Wills 5. Lawyer malpractice |
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VALIDITY OF WILLS
Requirements of duly executed will 7 Point Test |
PET FETT
1. Published to witnesses 2. Eighteen or older 3. Testator signed, in 4. Front of witnesses, at the 5. End thereof. 6. Two attesting witnesses 7. Thirty days from first witness signature to execution |
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VALIDITY OF WILLS
Requirement of duly executed will Codicil |
Later amendment supplement to a will executed with the same seven point formalities
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VALIDITY OF WILLS
Requirement of duly executed will Signature at the end |
If signature NOT at the end:
1. Anything after not given effect 2. If what's after is material as to destroy intention, whole will is void |
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VALIDITY OF WILLS
Requirements of duly executed will Burden of proof - due execution Rule |
Will proponent has burden of showing due execution, with:
1. One witness if the other is unavailable after due diligence 2. Two witnesses if the will not self-proved 3. No witnesses if proponent can prove signature of both testator and one witness |
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VALIDITY OF WILLS
Requirements of duly executed will Burden of proof - due execution Attestation clause |
1. Statement between T and W signature lines, reciting elements of due execution
2. Prima facie evidence of all facts presented 3. Not substitute for live testimony 4. Point is to remind witness with bad memory or rebut hostile witness |
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VALIDITY OF WILLS
Requirements of duly executed will Burden of proof - due execution Self-proving affidavit |
1. Attached to the back of the will
2. Mechanism set forth by legislature 3. Sworn statement by W in presence of attorney reciting all statements they would make if called to testify in court 4. Substitute for live testimony 5. Signed with or after execution of will 6. Will admissible to probate on basis of affidavit alone, unless interested party objects, in which case formal rules of proof apply |
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VALIDITY OF WILLS
Interested witness statute Rule |
If will beneficiary ALSO an attesting witness:
1. Will still valid 2. Bequest to witness void unless: -- at least two other disinterested attesting witnesses, OR -- Witness would be an intestate distributee if T died intestate, in which case W takes lesser of bequest and intestate share |
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VALIDITY OF WILLS
Interested witness statute Purpose |
Discourage people from trying to fraudulently void the will in order to get intestate share
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VALIDITY OF WILLS
Interested witness statute Fall to residuary |
If will provision falls into intestacy because there is no residuary clause, will still be considered under the will for purpose of interested witness statute
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VALIDITY OF WILLS
Foreign Wills Act Rule |
Will probated in NY so long as valid under laws of END
-- Executing state -- New York -- Domiciliary state at time of execution or death Once admitted to probate, governed under NY law |
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VALIDITY OF WILLS
Holographic and Nuncupative Wills Definitions |
Holographic--entirely in T's handwriting and signed but not witnessed
Nuncupative--recorded oral will (CD, DVD, youtube) |
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VALIDITY OF WILLS
Holographic and Nuncupative Wills Rule |
Both are void in New York, UNLESS
1. Done for member of armed forces during declared or undeclared war, within one year of discharge 2. Done for mariner at sea, within three years of discharge |
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VALIDITY OF WILLS
Holographic and Nuncupative Wills Application of Foreign Wills Act |
Holographic or nuncupative wills are acceptable if they are valid under the laws of the state where executed
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VALIDITY OF WILLS
Lawyer Malpractice General Rule |
No privity between drafting attorney and intended beneficiaries, so they can't sue him (only client who contracted lawyer can)
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VALIDITY OF WILLS
Lawyer malpractice Court of Appeals Case |
There is privity between lawyer and personal representative of the estate, but no privity between lawyer and third parties
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REVOCATION OF WILLS
Topics |
1. What constitutes valid revocation?
2. Express revocation 3. Revocation by implication 4. Revocation by proxy 5. Presumptions regarding revocation of wills 6. Changes on face of will after executed 7. No revival of revoked wills |
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REVOCATION OF WILLS
What constitutes a valid revocation? Rule |
Will can be revoked in one of two ways:
1. By subsequent testamentary instrument 2. By physical act |
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REVOCATION OF WILLS
Express Revocation |
Typical language:
"I hereby revoke all wills heretofore made by me" |
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REVOCATION OF WILLS
Revocation by implication Rule |
Where two wills without the second expressly revoking the first:
1. Read instruments together, treating second as a codicil to the first 2. Where inconsistent provisions, 2nd trumps 1st |
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REVOCATION OF WILLS
Revocation by implication Exception |
Where second will is wholly inconsistent with the first, first will is revoked entirely by implication
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REVOCATION OF WILLS
Revocation by physical act of another |
Physical act has to be:
1. At testator's request 2. In testator's presence 3. At least two witnesses (4 people needed in the room) |
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REVOCATION OF WILLS
Presumptions regarding revocation of wills Will last seen in T's possession |
1. NOT FOUND--presumed T intentionally revoked by physical act
2. FOUND DAMAGED--presumed T intentionally damaged it |
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REVOCATION OF WILLS
Presumptions regarding revocation of wills Exceptions |
1. Last seen in possession of someone adversely affected by contents--neither presumptions arises
2. Evidence can rebut presumption of revocation when will cannot be found |
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REVOCATION OF WILLS
Changes on the face of the will after it has been executed Rule |
Only two ways to make changes to will:
1. Duly executed new will revoking first 2. Duly executed codicil to first that changes only part of first |
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REVOCATION OF WILLS
Changes on the face of the will after it has been executed Words added |
After signed and witnessed are disregarded
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REVOCATION OF WILLS
Changes on the face of the will after it has been executed Partial revocation |
Partial revocation by physical act is NOT recognized in NY
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REVOCATION OF WILLS
No revival of revoked wills Rule |
Where 1st will expressly revoked by 2nd, can only be revived by:
1. Re-execution of 1st will, duly executed 2. Republication by codicil: duly executed codicil to first making any changes desired |
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REVOCATION OF WILLS
No revival of revoked wills Dependent Relative Revocation |
1. Permits revocation of later will to be disregarded, where:
-- revocation based on mistake of law -- disposition from disregarding revocation gets close to intent of T in trying to revive earlier will 2. Unclear history in NY, argue both sides on exam |
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REVOCATION OF WILLS
No revival of revoked wills Lost wills statute |
1. Statute used with DRR and truly "lost" wills
2. "Lost will" proponent has to prove: -- Lost or later will duly executed via 7 point test -- Lost or later will was not revoked (overcome presumption with rebutting evidence, show revocation should be disregarded via DRR) -- Lost or later will's provisions are clearly and distinctly proven by 2 witness or true and complete draft |
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DEATH OF BENEFICIARY DURING T'S LIFETIME
Topics |
1. Anti-lapse statute
2. Lapse in residuary gift |
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DEATH OF BENEFICIARY DURING T'S LIFETIME
Anti-lapse statute Rule |
Gift to predeceasing beneficiary fails unless saved by anti-lapse statute
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DEATH OF BENEFICIARY DURING T'S LIFETIME
Anti-lapse statute New York statute |
Gift vests in PD'd beneficiary IF:
-- PD'd beneficiary was T's sib or issue -- PD's beneficiary left issue surviving T |
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DEATH OF BENEFICIARY DURING T'S LIFETIME
Anti-lapse statute Condition to bequest |
Generally trumps anti-lapse rule
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DEATH OF BENEFICIARY DURING T'S LIFETIME
Anti-lapse statute Death of "adopted out" child |
PD'd adopted out child could benefit from anti-lapse statute because specifically named in T father's will
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DEATH OF A BENEFICIARY DURING T'S LIFETIME
Lapse in residuary gift |
If residuary is:
-- devised to 2 or more persons -- gift to one fails or lapses -- anti-lapse statute does not apply THEN -- other residuary beneficiaries take entire residuary estate in proportion to interests |
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CLASS GIFTS
Topics |
1. Class gifts in general
2. Rule of convenience 3. When the class closes |
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CLASS GIFTS
Class gifts in general Rule |
Where T makes gift to persons described as a generic class, all members surviving T take in equal shares
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CLASS GIFTS
Class gifts in general Rationale |
We presumed that if T was so "group minded" in making gift, he wanted equal treatment among the group
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CLASS GIFTS
Class gifts in general Determining members of class |
Class defined as living class members at time of T's death
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CLASS GIFTS
Class gifts in general When testator names beneficiaries individually |
Doesn't get split among other beneficiaries, rather follows normal per capita distribution, keeping anti-lapse rule in mind
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CLASS GIFTS
Class gifts in general Construction of class gift implicating "adopted out" child |
Adopted out child has no inheritance rights in birth family, so construction of class gift that would otherwise include child does not apply to him (unless adopted by member of same family)
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CLASS GIFTS
Rule of convenience |
1. Later-born class members (born after T dies) do not take in class
2. Later-born class members already in gestation at time of death (presuming 280 days from conception to birth) can take |
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CLASS GIFTS
When the class closes |
1. Outright gift by will: class closes on T's death
2. Life estate/income interest with remainder to class: class closes at death of the life tenant or income beneficiary |
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SIMULTANEOUS DEATHS
Topics |
1. RUSDA
2. RUSDA and jointly held property |
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SIMULTANEOUS DEATHS
RUSDA |
1. Revised Uniform Simultaneous Death Act
2. Where two people die within 5 days of each other, each is treated as if PD'd the other, depending on whose property is being distributed 3. Assume the T of estate being distributed survived the other party |
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SIMULTANEOUS DEATHS
RUSDA and jointly-held property |
Where parties jointly-holding property (or tenants by entirety or joint bank accounts) come under RUSDA, right of survivorship is severed as if it had been a tenancy in common
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CHANGES IN T'S FAMILY AFTER WILL IS EXECUTED
Topics |
A. T marries
B. T unmarries C. T's child born/adopted after will executed |
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CHANGES IN T'S FAMILY AFTER WILL EXECUTED
T Marries Rule |
Marriage after execution does not affect validity, but may affect distribution
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CHANGES IN T'S FAMILY AFTER WILL EXECUTED
T marries Rationale |
NY law provides for "right of election" so that T cannot disinherit spouse
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CHANGES IN T'S FAMILY AFTER WILL EXECUTED
T unmarries Rule |
If court issues final decree of divorce, annulment, or separation after execution, all gifts and fiduciary appointments in favor of former spouse are revoked by operation of law
(Read will as if spouse PDd) |
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CHANGES IN T'S FAMILY AFTER WILL EXECUTED
T unmarries Exclusions |
1. Not affected:
- gifts and fiduciary appointments in favor of issue of former spouse - appointment of former spouse and guardian of couple's children 2. If couple reconciles and remarries, all revoked provisions are restored |
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CHANGES IN T'S FAMILY AFTER WILL EXECUTED
T's child born/adopted after execution |
Where pretermitted child is not provided for by any settlement and neither provided for nor mentioned in will:
1. If T has one or more children at execution, and - Will made gifts to other children, PT child shares in gifts as if class gift made - No provision to any children, PT child gets nothing - T's intention was to give limited provisions to children, PT child takes intestate share 2. IF T has no children at execution: - PT child takes intestate share via kick-ins of other beneficiaries |
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NEGATIVE BEQUESTS
Topics |
1. Common law rule
2. New York's Negative Bequest Rule |
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NEGATIVE BEQUESTS
Common law rule |
-- applicable in most states
-- If partial intestacy, words of disinheritance not given effect (Idea is that is property is passing by intestacy, its governed by intestacy laws, and you can't disinherit under intestacy) |
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NEGATIVE BEQUESTS
New York's "Negative Bequest" Rule |
Words of disinheritance ARE given full effect in partial intestacy
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VARIATIONS TO TESTATE DISTRIBUTIONS
Topics |
1. Lifetime gift to beneficiary "satisfaction of legacies"
2. Reference to facts and events outside the will |
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VARIATIONS TO TESTATE DISTRIBUTIONS
Lifetime gift to beneficiary -- "satisfaction of legacies" |
CL: Lifetime gift made after will's execution to beneficiary named in T's will presumed to be made in partial or total satisfaction of legacy, should be taken into account when distributing T's estate at death
NY: No satisfaction of legacy unless: -- contemporaneous writing at time of gift -- signed by donor or donee |
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VARIATIONS TO TESTATE DISTRIBUTIONS
Reference to facts and events outside the will Incorporation by reference--extrinsic document |
Most states: Extrinsic doc incorporated by reference if:
-- doc in existence when will was drafted -- will shows intent to incorporate doc -- doc clearly identified in language of the will NY Rule: Incorporation by reference not recognized, everything has to be duly executed |
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VARIATIONS TO TESTATE DISTRIBUTIONS
Reference to facts and events outside the will Acts of independent significance |
1. T's acts after will that are independent of testamentary purpose are given full effect when distributions made
2. EXCEPT for title documents, which can only be transferred as mandated by law |
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CHANGES IN DISTRIBUTION OF TESTAMENTARY GIFTS
Topics |
1. Classification of gifts
2. Abatement of legacies 3. Ademption 4. Exoneration of liens 5. Bequests of securities |
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CHANGES IN DISTRIBUTION OF TESTAMENTARY GIFTS
Classification of gifts |
SPECIFIC GIFT -- bequest of tangible item
DEMONSTRATIVE LEGACY -- general $ amount from specific source GENERAL LEGACY -- general $ amount, no specific source RESIDUARY DISPOSITION -- gift of residuary INTESTATE PROPERTY -- property affected when partial intestacy and no residuary clause |
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CHANGES IN DISTRIBUTION OF TESTAMENTARY GIFTS
Abatement of legacies Rule |
If estate can't cover all claims AND all gifts, gifts lose out
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CHANGES IN DISTRIBUTION OF TESTAMENTARY GIFTS
Abatement of legacies Order of abatement |
In order of abatement:
1. Intestate and residual property 2. General legacies (pro rata) 3. Demonstrative legacies (pro rata) 4. Specific gifts 5. Items qualifying for estate tax martial deduction |
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CHANGES IN DISTRIBUTION OF TESTAMENTARY GIFTS
Ademption Rule |
If specific gift is made, and property can't be found after T's death, beneficiary loses out
Ademption ONLY applies to specific gifts |
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CHANGES IN DISTRIBUTION OF TESTAMENTARY GIFTS
Ademption Reason demonstrative legacies do not adeem |
If no cash in source indicated, demonstrative legacy converted in general legacy, with other assets being sold to satisfy
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CHANGES IN DISTRIBUTION OF TESTAMENTARY GIFTS
Ademption Three statutory exclusions |
1. If insurance proceeds from property, beneficiary takes to the extent they are paid after death
2. If proceeds under executory contract for property, beneficiary gets any proceeds paid after death 3. If proceeds from guardian or conservator's sale of specifically bequeathed property, beneficiary gets any proceeds that can be traced back to property |
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CHANGES IN DISTRIBUTION OF TESTAMENTARY GIFTS
Exoneration of liens Common law rule |
Where T makes specific gift of property subject to encumbrance, beneficiary entitled to have lien exonerated, or have all encumbrances removed
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CHANGES IN DISTRIBUTION OF TESTAMENTARY GIFTS
Exoneration of liens New York rule |
Liens on specifically devised property are NOT exonerated, unless the will specifically directs exoneration
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CHANGES IN DISTRIBUTION OF TESTAMENTARY GIFTS
Bequests of securities |
Securities in:
1. PUBLIC CORP = general gifts (don't adeem) unless worded as "my [company name] stock," in which case specific gifts and adeem 2. CLOSELY-HELD CORP = specific gifts, adeem if they don't exist 3. SPLIT STOCK = specific gifts for purposes of split |
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NON-PROBATE ASSETS
Categories of non-probate assets |
1. Right of survivorship (joint bank account, stock account; payable on death securities)
2. Contract (life insurance policy payable to beneficiary other than T or T's estate) 3. Trust (trust terms governs disposition) 4. Power of appointment |
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ELECTIVE SHARE STATUTE
Topics |
1. Elective share in general
2. Testamentary substitutes 3. Elective share trusts 4. Procedural rules 5. Multijurisdictional problems 6. Exempt property 7. Disqualifying circumstances |
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ELECTIVE SHARE STATUTE
Elective share in general Purpose |
Protect SS against disinheritance by giving right to minimum share in T's probate estate
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ELECTIVE SHARE STATUTE
Elective share in general Rule |
Surviving spouse gets larger of:
-- $50K -- 1/3 of estate |
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ELECTIVES SHARE STATUTE
Elective share in general Payment of elective share amount |
1. Elective share taken out of net probate estate
2. Payment from general assets or pro rata contributions of other beneficiaries 3. Beneficiares = beneficiares of will, testamentary substitutes, intestate distributees |
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ELECTIVE SHARE STATUTE
Elective share in general Surviving spouse's elective v. intestate share |
Spouse's intestate share (50K + 1/2 residuary) will ALWAYS be bigger than elective share (50K OR 1/3); unless Tsubs are involved
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ELECTIVE SHARE STATUTE
Testamentary substitutes Purpose and rule |
1. Idea is to prevent T from functionally disinheriting spouse by transferring assets out of probate estate
2. Rule: "testamentary substitutes" are included in "elective share estate" for purpose of calculating elective share |
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ELECTIE SHARE STATUTE
Testamentary substitutes Types |
TS LEG UP:
1. Totten trusts (bank account in trust of another) 2. Survivorship estates 3. Lifetime transfers with strings attached 4. Employee pension, profit-sharing, deferred compensation plans 5. Gifts made within one year of death 6. U.S. government bonds 7. Powers of appointments (presently exercisable general power) |
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ELECTIVE SHARE STATUTE
Testamentary substitutes Rule of thumb |
If T has an interest in it (can touch it, feel it, do something to it), or gave it as a gift, it is a Tsub
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ELECTIVE SHARE STATUTE
Testamentary substitutes Exceptions |
LOGPIT:
1. Life insurance 2. One-half qualified pension or profit-sharing benefits 3. Gifts less than $14K made within one year of death 4. Pre-marriage transfers 5. Irrevocable transfers made more than one year before death 6. Transfers (irrevocable) made during marriage in which T retains a life estate |
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ELECTIVE SHARE STATUTE
Testamentary substitutes Exception rule of thumb |
Where D DOES NOT have an interest in an asset (can't affect it, control it) of D owns life insurance, it is NOT a Tsub
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ELECTIVE SHARE STATUTE
Testamentary substitutes Calculating elective share estate |
Full value of Tsub included, except:
1. Survivorship estates between T and 3P = only what SS can prove T contributed via "contribution furnished" test 2. Survivorship estates between T and SS = only half is a Tsub 3. Survivorship created before marriage between T and 3P = consideration test, but no more than 1/2 property value |
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ELECTIVE SHARE STATUTE
Testamentary substitutes Elective share trusts |
T's that died on or after Sept. 1, 1994, elective share trust given SS a life estate and at least $50K outright would NOT satisfy elective share entitlement
An ineffective life estate trust: 1. Treat SS as if PD'd T 2. Treat as if no life estate in SS 3. Accelerate trust to the remainderman |
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ELECTIVE SHARE ESTATE
Procedural rules governing elective share Filing |
If estate probated--SS notice of election must be filed within 6 months after letters issued by Surrogate's Court at start of proceedings
If no probate--no more than 2 years after death |
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ELECTIVE SHARE ESTATE
Procedural rules governing elective share Personal right |
SS's right of election is a personal right, can't be used by estate administrator, can be used by guardian
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ELECTIVE SHARE ESTATE
Procedural rules governing elective share Waiver |
SS can waive elective share:
-- in writing, signed and notary acknowledged (no consideration required) -- before or after marriage --as to particular testamentary instrument, or all testamentary instruments -- doesn't necessarily waive right to specific bequests |
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ELECTIVE SHARE ESTATE
Multi-jurisdictional problems Rule |
Only right of election if decedent domiciled in NY at time of death
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ELECTIVE SHARE ESTATE
Multi-jurisdictional problems Exception |
SS can claim share in non-domilciliary's property in NY if will expressly states that disposition to be governed by NY law
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ELECTIVE SHARE ESTATE
Multi-jurisdictional problems Otherwise |
Non-domiciliary with property in NY, must have ancillary administration proceeding to clear title
NY domiciliary with property in another state, that property falls under elective share after ancillary proceeding there |
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ELECTIVE SHARE ESTATE
Exempt property |
- SS gets off the top first, before anything else
- Includes 1. Car (25K) 2. Home furnishings (20K) 3. Cash (25K) 4. Farm equipment (20K) 5. Media (2.5K) |
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ELECTIVE SHARE ESTATE
Disqualifying Circumstances |
If spouse falls under DISMAL, also disqualified from taking elective share
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POWERS OF APPOINTMENT
Topics |
1. Definitions
2. Purpose 3. Classification of powers 4. Elective share 5. Donee creditor's rights |
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POWERS OF APPOINTMENT
Definitions |
Donor -- creates power
Donee -- person to whom power is given Power of appointment -- authority in donee to designate within any limits set by donor who shall take donor's property and how Takers in default -- who takes property is donee fails in responsibility |
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POWERS OF APPOINTMENT
Purpose |
Lets donor property be distributed by someone in the future who is able to do so based on current facts
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POWERS OF APPOINTMENT
Classification of powers |
GENERAL -- donee can appoint to anyone, incl. herself
SPECIAL -- donee can only appoint to special class, and not herself PRESENTLY EXERCISABLE -- donee can exercise right now, during lifetime TESTAMENTARY -- donee can only exercise in a will |
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POWERS OF APPOINTMENT
Elective share |
Presently exercisable = Tsub
Testamentary = not a Tsub |
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POWERS OF APPOINTMENT
Donee creditors' rights |
Can creditors access if appointment power is:
1. General presently exercisable? Yes 2. Special presently exercisable? No 3. General testamentary? No, unless: -- donee and donor the same -- exercised power in favor of donor estate |
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POWERS OF APPOINTMENT AND RAP
Topics |
1. Recap
2. Step-by-step analysis 3. Powers to appoint: Remainder interests 4. Powers to appoint: Income interests |
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POWERS OF APPOINTMENT AND RAP
Recap Rule against perpetuities |
-- deals with vesting
-- to be valid, interest must vest within lives in being at time of grant plus 21 years -- Ask: is there any way vesting could occur beyond LIB+21? |
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POWERS OF APPOINTMENT AND RAP
Recap Suspension rule |
-- deals with suspension of ability to transfer fee simple
-- to be valid, must be persons that, taken together, could convey a fee simple absolute within LIB+21 -- Ask: is there any way that any part of interest would remain untransferrable for LIB+21? |
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POWERS OF APPOINTMENT AND RAP
Recap Statutory spendthrift rule |
Income beneficiares CANNOT assign or convey their income interest
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POWERS OF APPOINTMENT AND RAP
Step-by-step analysis |
1. Identify type of power of appointment
2. Ask if power itself is valid 3. Ask if interests created by power are valid |
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POWERS OF APPOINTMENT AND RAP
Powers to appoint: remainder interests |
1. POWER: Special testamentary
2. VALID POWER: if given to person who is LIB at time power is created (must be exercised within LIB+21) 3. VALID INTERESTS: measure from date of instrument creating power, fill in donor's will with words in donee's will. -- Remember: "wait and see" doctrine means you can wait to see if it wil work -- NY reform statute: any age contingency reduced to 21 |
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POWERS OF APPOINTMENT AND RAP
Powers to appoint: income interests |
1. POWER = general presently exercisable
2. VALID POWER = must be acquired within LIB+21 3. VALID INTERESTS = measure from date of exercise of power |
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WILL CONTESTS
Topics |
1. Mistake
2. Ambiguity 3. Conditional wills 4. Contract to make a will 5. Testamentary capacity 6. No-contest clauses |
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WILL CONTESTS
Mistake |
If will has a plain meaning, that is what is exercised, regardless of what extrinsic evidence might say. We assume T meant what he wrote
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WILL CONTESTS
Ambiguity Latent ambiguity |
This is a misdescription, an error not clear from looking at the will
Extrinsic evidence is admissible to clarify meaning: -- Facts and circumstances evidence -- Declarations to third parties -- Statement of drafting attorney If uncured ambiguity, gift fails |
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WILL CONTESTS
Ambiguity Patent ambiguity |
An obvious error on the face of the will
Extrinsic evidence is admissible: -- facts and circumstances -- statement of drafting attorney -- NOT ALLOWED = declaration of intent to third parties |
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WILLS CONTESTS
Conditional wills |
This is will expressly conditions a bequest on occurrence of something else
Precatory language (i wish, i desire) not conditional, not enforceable. |
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WILL CONTESTS
Contract to make a will |
1. Joint will = will of two people in one document
2. Contract to make a will = agreement that surviving spouse won't revoke will, only established through express statement of intent 3. Where agreement is breached, second will is probated, and then constructive trust set up to ensure benefits under first will are distributed |
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WILL CONTESTS
Testamentary capacity Requirements |
T must know:
1. He's making a will 2. How much he's got 3. Who should get it 4. How he's giving it |
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WILL CONTESTS
Testamentary capacity Case law application |
Judicial incompetence does not mean lack of testamentary capacity, due to possibility of a "lucid interval"
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WILL CONTESTS
Testamentary capacity Insane delusion |
T otherwise of sound mind but persists in belief in facts that go against all evidence, probability, and control, which cause or effect T's testamentary act
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WILL CONTESTS
Testamentary capacity Undue influence |
-- Will contestant must show:
1. Influence existed and was exerted 2. Influence overpowered mind and will of T 3. Resulting will would not have happened but for influence (Std: will is not of T, but essentially of influencer) -- Opportunity to influence, susceptibility of T to influence, and unequal dispositions in will not enough to prove. -- If there's a gift to someone in a confidential relationship with T who was active in preparing the will, rebuttable inference of undue influence |
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WILL CONTESTS
Testamentary capacity Undue influence Drafting attorney |
1. Bequests: to drafting attorney automatically scrutinized as to voluntariness, under Putnam scrutiny
2. Appointment: before drafting attorney can be named as executor, must inform T that -- any person, not just an attorney, can be named executor -- executor receives a statutory commission -- attorney also gets legal fees for representing estate T must sign disclosure before two witnesses, and if drafting attorney fails to comply with statute, loses half of statutory commissions |
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WILL CONTESTS
No-contest clauses Definition |
Clause says that anyone who object to my will gets nothing
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WILL CONTESTS
No-contest clauses Most states |
Give clauses full effect unless court finds that contest brought:
-- in good faith -- with probable cause |
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WILL CONTESTS
No-contests clauses New York |
Clause given full effect even if probable cause to challenge the will; UNLESS:
1. Contest claims forgery or will later revoked and court finds good faith 2. Contest filed on behalf of infant or incompetent 3. Contest about construction of will, not validity 4. Contest about court jurisdiction, not validity |
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WILL CONTESTS
No-contests clauses New York safe-harbor provision |
Person considering contest can examine in discovery:
1. Who prepared the will 2. Who witnessed the will 3. Who's in favor of the will 4. Who's nominated to execute the will (though even these could presumably be excluded if strict-enough clause included) |
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POWERS OF ATTORNEY
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Non-durable: power revoked by death or incapacity of grantor
Durable: not extinguished by grantor's death or incapacity, unless will expressly says so |
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HEALTH CARE PROXIES
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Durable power of attorney to make health care decisions on behalf of the client, only active once client incapacitated
Must be in writing, signed, and witnessed by two adults; proxy must state that client appeared to sign without duress |
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LIVING WILLS
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Directions stating a living individuals desires, should he become terminally ill or enter a vegetative state, as to:
1. Life sustaining procedures 2. Artificial nutrition or hydration 3. Treatment to alleviate pain (Right to decline treatment guaranteed by common law) |
