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74 Cards in this Set
- Front
- Back
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Order of priority for appointment as administrator |
1) Surviving spouse 2) Child 3) Grandchildren 4) Parent 5) Siblings 6) Any other distributee |
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Distribution rules |
1) Decedent Survived by Spouse and No Children: If the decedent is survived by her spouse but not by any children or issue of children, the surviving spouse takes the entire estate.
3) Decedent survived by children only: if the decedent is survived by children only and no child has predeceased the decedent, passes to children in equal shares 4) Decedent is survived by children and the issue of predeceased children: passes to the “alive” children and the issue of the dead children by representation (per capita) at each generation (i.e., issue at each generational level takes equal shares).
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Application of per capita distribution |
Application of Rule: Issue in the same generation will always have equal shares
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Decedent not survived by spouse or issue |
i) All to parents or surviving parent
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Per Stirpes rule |
In Most States (and old law in NY) / Per Stirpes Rule: Distribution is “per stirpes,” under which the issue of a predeceased child takes the share the predeceased child would have taken, if alive. |
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Adopted children |
1) Adopted Children and Their Issue: Adopted children and their issue have full inheritance rights from their adopted family, and vice versa if child dies first.
3) Child Adopted by a Relative (e.g., An Aunt or Uncle): 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 only unless the decedent was the adopting parent, then the child inherits under the adoptive relationship only. |
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Nonmarital children |
1) Full inheritance rights from the birth mother and her family 2) Only inherits from birth father if paternity is established in one of the 4 tests During the father's life:
After the father's death
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Circumstances disqualifying spouse from taking her rightful intestate share |
DISMAL 1) Divorce: a final decree of divorce or annulment recognized as valid under NY law 2) Invalid Divorce: The surviving spouse procured a divorce or annulment not recognized as valid under NY law. Note: Surviving spouse is not disqualified if the deceased spouse procured the invalid divorce or annulment. 3) 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 waiving the surviving spouse’s right under the EPTL 4) Marriage is Void: As incestuous or bigamous 5) Abandonment or Lack of Support: Surviving spouse abandoned or refused to support the deceased spouse. Note: Surviving spouse is not disqualified if the deceased spouse abandoned or refused to support him or her. |
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Advancements (lifetime gifts to intestate distributees) |
CL: A lifetime gift to a child was presumptively an advancement (i.e., an advance payment of his intestate share) that would be taken into account when distributing the estate at death. (Based on the presumption that a parent would always want to treat his children equally). NY Rule: no presumption of advancement unless 1) proven by a contemporaneous writing, stating so, made at the time of the gift and 2) that was signed by the donor or donee |
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Disclaimer by Intestate Distributee |
1) Rule: No operation of law will compel a distributee to take property. Therefore, he may disclaim or renounce his interest in the decedent's estate in whole or in part. The disclaimer is treated as if he predeceased the decedent 2) Valid disclaimer must be
3) Rationale: avoid taxes (passes to grandchildren) and avoid creditor's claims 4) Disclaimers cannot cause another beneficiary's interest to be reduced. Will treat as if disclaimer died the day after decedent in such a situation |
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7-point test for a duly executed will |
(1) Must Be Age 18 to Make a Will (implicit)
(3) Signature: At “The End Thereof” aka at the end of the Will. Any matter following testator’s signature is disregarded and not given effect, but the Will otherwise remains valid.
(4) Testator Signs (or Acknowledges Her Earlier Signature) in the Presence of Each Witness: If the testator signs the will beforehand or signs in the presence of one witness, she must acknowledge her previous signature before the other witness(es).
(7) Ceremony Completed in 30 Days: Execution ceremony must be completed in 30 day period, which starts to run when the first witness signs, not when the testator signs. Note: Codicil later amendment or supplement to a will executed by the same formalities (7-pt test). |
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Attestation clause |
1) Appears below the testator’s signature line and above the witnesses’ signature lines, and recites all the elements of due execution. 2) Attestation is prima facie evidence of valid execution, but if the Will is not self-proving, it is not a substitute for formal proof (must bring witnesses to prove signatures). Unless self-proving, court should not admit to probate simply on the face of the documents themselves.
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Self-proving affidavit |
1) Consists of: Witnesses sign a sworn statement in the presence of an attorney that recites all the statements that they would make if called to testify in court (essentially signing sworn statement saying 7-point test is fulfilled).
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Will proponent's burden of proving due execution |
1) Burden on proof is on will proponent to show the will has been validly executed. 2) 99% of probates are not contested so self-proving affidavits is sufficient unless an interested party objects 3) If interested party objects, then at least two attesting witnesses must testify to show due execution
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Interested witness statute |
1) Rule: A witness who is also a beneficiary (interested witness) will not make the will void but will lose his bequest unless
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Foreign Wills Act |
Rule: A will is admissible to probate in NY if it was validly executed under
Note: once it is admissible, NY law will apply for distribution |
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Holographic and Nuncupative Wills |
-A Holographic Will is a will that is entirely in testator’s handwriting that is signed but not witnessed. -A Nuncupative Will is an oral will.
2) Application of Foreign Wills Act: If a holographic will is executed in a state that recognizes them, that would be admissible in NY (but bar examiners would have to tell you okay in other state). |
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Lawyer malpractice |
1) The lawyer’s duty to create a valid will only runs to the client who contracted for services. 2) There is no privity of contract between the lawyer and the will beneficiaries so they can't sue the lawyer who malpracticed
3) But the estate representative can sue the attorney for losses to the estate resulting from negligent estate planning advice |
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Revocation of wills |
Two ways 1) By subsequent testamentary instrument executed w/ appropriate formalities 2) By physical act (e.g., burning, tearing, cutting, canceling, obliterating, or other act of mutilation).
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Revocation by implication |
1) When there are two wills, but no valid revocation of the previous will, to the extent possible, read the two instruments together. 2) The 2nd will is treated as a codicil (amendment) to the 1st will, and only revokes the 1st will to the extent there are inconsistent provisions.
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Revocation by Physical Act of Another (Revocation by Proxy) |
The physical act must be – (a) At the testator’s request; (b) In the testator’s presence; AND (c) Witnessed by at least 2 witnesses. So at least 4 people in the room |
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Two presumptions regarding revocation of wills |
Two Presumptions:
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How to amend the will after it has been duly executed |
1) Write a new will that revokes the 1st will or 2) Make a codicil to the 1st will that only changes parts of the will
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How to revive 1st will |
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 (same for codicils) Two ways to revive 1st will: need a validly executed document to make a change 1) Re-Execution: Signed again by the testator and 2 witnesses; or |
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Dependent Relative Revocation (DRR) |
NY: has only recognized it once in appellate but not court of appeals; argue both sides 1) DRR permits a revocation of a later will to be disregarded. The effect would be to permit probate of the later Will. DRR is a common law doctrine (“second best solution doctrine”). Remember, the best solution, which is giving effect to the testator’s intent by reviving the earlier Will, is not possible under NY law. 2) Requirements
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Lost Wills Statute |
Two situations 1) DRR 2) Truly lost wills Lost Will propoent must prove that
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Anti-lapse statute |
1) Rule of Thumb: A testator cannot make a gift to a deceased person.
4) Anti-lapse trumps will: the gift will not pass through the deceased beneficiary's estate UNLESS the bequest stipulated who should get the gift if the beneficiary dies 5) Remember if a beneficiary disclaims the gift, he will be considered to have predeceased the testator so we have the same problem of giving a dead person a gift. If the anti-lapse statute applies, then the gift can be passed down. 6) Adopted child: anti-lapse will apply if a testator specifically names his adopted-out son, even though default rule is adopted child and heirs get no inheritance rights from birth parents
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Surviving residuary beneficiaries rule |
1) Rule of thumb: Anti-lapse trumps the “surviving residuary beneficiaries” rule 2) Absent a contrary provision in the Will, if the testator’s residuary estate is – (1) Devised to two or more persons, AND (2) The gift to one of them fails or lapses for any reason, AND (3) Anti-lapse statute does not apply. THEN the other residuary beneficiaries take the entire residuary estate in proportion to their interests.
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Class Gifts |
1) 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 members of the class predecease the testator, the class members who survive the testator take in equal shares EXCEPT if anti-lapse applies 2) Rationale: 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 (and no one else) to take in equal shares. 3) To Determine Members of Class: Look at who is alive at the testators’ death to determine the takers of the class gift. 4) Anti-lapse trumps the “class gift” rule when the predeceasing class member is within its scope: doesn't matter if beneficiaries are named individually or as a class |
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Construction of a Class Gift Implicating An “Adopted Out” Child |
1) Rule: 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 UNLESS she is adopted by a member of the birth family.
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Rule of convenience for class gifts |
1) Rule: The class closes at the time a distribution to the class must be made. Later-born class members (i.e., members born after the testator dies) are excluded from taking as members of the class. |
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When the class closes |
1) Outright Gift by Will → The class closes at the testator’s death.
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RUSDA (Reform Simultaneous Death Act) |
1) Absent a will provision to the contrary, if two persons die under circumstances where there is insufficient clear and convincing evidence that one survived the other by more than 5 days (120 hours), each person's property is distributed as though he survived the other
2) RUSDA and joint property: jointly held property passes as though each co-owner survived the other. RUSDA theoretically severs the right of survivorship so the property is distributed as though a tenancy in common was involved
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If Testator marries after will is executed |
1) Marriage after the execution of a will, meaning spouse is not named in the will, has no effect on the validity of the will but it may affect gifts and dispositions under the will b/c of NY's right of election (testator cannot disinherit his spouse) |
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If Testator "unmarries" |
1) If the court renders a final decree of divorce, annulment or separation after the execution of a Will, all gifts and fiduciary appointments (executor, trustee) in favor of the former spouse are revoked by operation of law. Effect is you read the will as though the spouse predeceased the testator. 2) Exceptions
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Pretermitted Child |
1) Protects children born or adopted after the will is executed who are NOT provided for by any settlement or mentioned in the will
2) Rationale: to put the pretermitted child on equal footing with the other children 3) If T had at least one child when the will was executed and
4) If T had no children when will was executed: pretermitted takes his intestate share Note: pretermitted includes nonmarital children but need to establish paternity for father Note: child must be in gestation to count as pretermitted child |
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Negative Bequests |
1) 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. 2) NY’s “Negative Bequest” Rule: Words of disinheritance are given full effect, even in partial intestacy. Treat as if disinherited individual predeceased the testator.
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Satisfaction of legacies |
1) 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 (this is the equivalent of advancements in intestacy)
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Incorporation by reference to extrinsic documents |
1) 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.
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Acts of Independent Significance (Non-Testamentary Acts) |
1) 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 (i.e., should be included in distribution of Will). Future act must have some lifetime significance other than providing for a testamentary disposition.
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Classification of Gifts |
1) Specific Legacy / Gift: A gift of tangible property, where only that asset can satisfy the gift. Ex: “I give the Crown Jewels to my son Charles.” |
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Abatement of Legacies |
1) If there are more claims against the estate than there are assets to cover all gifts made under the Will, the gifts under a Will may abate. Abatement means not giving effect to gifts so that creditors’ claims can be satisfied. 2) Order of Abatement: Absent a provision in the Will, order in which a testator’s property abates is: 3) If individuals hold gifts of the same type, they will abate pro rata (or proportionally) to satisfy debts to the extent necessary Ex: A’s estate is worth $200K at his death, but his debts total $100K. A’s Will provides: “I give and devise the Lodge to my sister L.” [specific] “I give $50K from my account to Bank1 to my sister V.” [demonstrative]. “I give $50K to my sister M.” [general] “I give the rest of my estate to my brother K” [residuary]. Lodge is worth $50K. Distribution?
Ex Amended: A’s will provides: “I give $50K to my sister V.” What is the distribution?
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Ademption |
1) Only applies to specific gifts, not demonstrative legacies 2) If a testator makes a specific gift of property, and the property cannot be found or is no longer owned by the testator at the time of her death, the gift fails under the doctrine of ademption (w/o regard to the testator’s probable intent) aka he gets nothing 3) A demonstrative legacy (general gift from a specific source) will turn into a general legacy if the source no longer exists. If there is no cash in the estate, then other assets will be sold to satisfy th demonstrative legacy
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Ademption: 3 exclusions |
1) Insurance Proceeds for Lost, Damaged, or Destroyed Property: Beneficiary takes the insurance proceeds to the extent they are paid after death.
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Exoneration of Liens and Mortgages |
1) CL 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. 2) Exoneration involves the discharge of any encumbrances on specifically bequeathed property using the residuary estate. 3) NY Rule: Liens on specifically devised property are NOT exonerated unless the Will specifically directs exoneration. Absent such a direction, devisee or distributee takes subject to the mortgage. 4) General Provision Insufficient: A general provision in the Will for the payment of debts DN indicate liens should be exonerated, must be specific.
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Bequests of Stock and other securities |
1) Gifts of Shares of Stock in PUBLICLY-Traded Corporations: General gifts & they DN adeem (therefore, if it is sold before death, beneficiary will still get its value from the sale of the stock or of other assets).
2) Gifts of Shares of Stock in CLOSELY-Held Companies: Specific gifts & they do adeem if they do not exist (if the stock is sold before death, beneficiary gets nothing).
Ex: Duke1 executes a Will that includes following gifts: “4. I give $50K to be paid from proceeds of sale of Twining Tea stock to my son D. 5. I give my 100 shares of British East common stock to my sister M. 6. I give 100 shares of British Airways common stock to my brother H.” At the time he wrote his will, Duke1 owned 100 shares each of Twining, British East, and British Airways stock. Duke1 later sells the Twining stock and uses the sale proceeds to buy a Jaguar. Duke1 sells the British East stock and uses the proceeds to buy Dow Jones stock. He sold the British Airways stock and uses the proceeds to buy US Airways stock. Duke1 dies without having changed his Will.
Ex amended: British Airways splits 2-for-1. H will take the 200 shares even though he would've only gotten the value of the 100 shares if they were sold before death Ex amended: Suppose that British East is acquired by Dow Jones in a friendly takeover, in which British East shareholders get 1 share of Dow Jones for every 2 shares of British East. At time of his death, Duke1 owned 50 shares in Dow Jones, but none in British East--> M gets the 50 shares of Dow Jones even though it was a specific gift b/c the substance did not change and we can trace the stock
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Probate estate |
1) 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 |
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Non-probate assets |
1) Interests in property that are not subject to disposition under the will or via intestacy 2) Categories
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Elective Share Quick Formula |
2) Calculate the elective share amount: 1/3 of the elective share estate 3) Is the surviving spouse satisfied: take the elective share amount and deduct
4) If the number is positive, the surviving spouse is not fully satisfied so all other beneficiaries must contribute pro rata. If it is negative, it is satisfied |
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Elective Share Statute |
1) Purpose: to protect the surviving spouse against disinheritance 2) Because a testator intent on disinheriting his spouse could defeat the protection of the elective share statute by transferring all non-probate assets to other persons, we will include most non-probate assets (T subs) in determining the surviving spouse's elective share 3) Rule: surviving spouse must receive the greater of 50k or 1/3 of the decedent's elective share estate (probate estate + T subs) 4) This rule applies whether there is a will or not |
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Testamentary Substitutes (7 kinds) |
1) Totten trusts: including bank accounts in the testator's name in trust for another, and payable on death securities 2) Survivorship estates: includes joint tenancies, tenancy by the entirety, joint bank accounts, and survivor bank accounts; be careful of pre v. post-marriage survivorship estates 3) Lifetime transfers with strings attached: a) transfers where the testator retains the power to revoke, invade, consume or dispose of the principal, or name the new beneficiaries and b) transfers (irrevocable) made during the marriage where the testator retained a life estate 4) Employee pension, profit-sharing, and deferred compensation plans: only 1/2 5) Gifts made within 1 year of death that are >$13k or gifts causa mortis, made in fear of impending death and the testator does die 6) US government bonds: and other pay on death (P.O.D.) arrangements 7) Powers of appointment: property over which the testator held a presently exercisable general POA but not a general testamentary power |
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Not T Sub (6 kinds) |
1) Generally, if the testator did not have an interest, it is not a testamentary substitute, with the major exception of life insurance 2) LOGPIT
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3 types of T subs whose full value is not included in the elective share interest |
1) Survivorship estate involving T and third party post marriage: consideration furnished test, meaning surviving spouse has the burden of proving the amount of T's contribution to the asset's acquisition (property) or amount on deposit (if bank account). Rationale is surviving spouse is entitled to claim an elective share in the dead spouse's property but not someone else's 2) Survivorship estate involving T and third party before marriage: only 1/2 of the consideration furnished test b/c the 1/2 was an irrevocable gift. Includes joint tenancy and joint bank accounts 3) Survivorship estate involving T and surviving spouse: 1/2 is included. NY fiction "severs" the joint tenancy even though operation of law will pass 1/2 to the surviving spouse anyways (but will be divided by 3 before removing the amount in the 2nd cal) |
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EXAMPLE: After marrying A, M and sister Q acquired Big Ben, taking title as joint tenants with the right of survivorship. M also opened a joint bank account with her husband A. M died, leaving a net probate estate of $300K. Her Will devised Frogmore (worth $75K) to A, and her remaining estate (worth $225K) to R. A files for an elective share. Net Probate Estate: $300K. |
• Distribution of M-Q joint tenancy? Testamentary substitute b/w dead spouse M and 3rd party Q. Surviving spouse has burden of proving the amount of consideration furnished by the dead spouse M for the property in Q.
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Elective Share and Intestacy |
i) Ex: E died, survived by wife W. Had no children. E left $100K in bank account in his name in trust for his brother H. He had no other assets solely in his name. E did have a joint bank account with C, which he created after his marriage to W. E contributed all the money to this joint bank account. At the time of E’s death, account balance was $140K. What is W entitled to? ii) Ex Amended: Suppose E left real property (worth $120K) that he purchased and held with W as tenants by the entirety), & left intestate property solely in his name of $90K. What is W entitled to?
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Contribution to the net elective share |
1) If the elective share is not satisfied for the surviving spouse, all other beneficiaries contribute pro rata, including (a) beneficiaries under the Will, (b) beneficiaries of “testamentary substitutes,” and / or (c) intestate distributees. 2) Calculation: Divide the Net Elective Share BY the total gifts to the contributing beneficiaries (minus gifts to the spouse) → Each of the beneficiaries contributes this portion from their gifts (by multiplying the fraction times the gift). 3) Beneficiary does not have to give back the actual property they received (e.g., can give money, and does not have to give back real property). 4) Ex: W left a $300K probate estate net of debts and expenses. Her Will bequeathed AT&T stock (worth $50K) to her husband H, $50K to her daughter D, $50K to her sister S, and her residuary estate ($150K) to her friend F. No testamentary substitutes are involved. H files for an elective share. The elective share amount is (one third of $300K =) $100K. H takes the AT&T stock, and the net elective share to which H is entitled is $50K. Where does that $50K come from? The $50,000 we need to come up with = 1/5 (or 20% of the assets) (1) Daughter D: Contributes $10K ($50,000 x 20% → $10,000 contributed). |
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Elective share trusts and elective share |
1) 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 (i) outright disposition $50K AND (ii) the principal of the trust equaled or exceeded the 1/3 elective share amount, then the surviving spouse had NO right of election. 3) Effect on Life Estate Trust If Surviving Spouse Files For Elective Share: Read trust as though the surviving spouse predeceased the testator, meaning as though there was no life estate in the surviving spouse. The remainder is accelerated, & the remaindermen takes the trust (kill trust). BUT don't kill trust if spouse's elective share is satisfied 4) Example: Brad dies leaving a Will that devises Blueacre (worth $50,000) outright to his wife Jennifer, and ½ the balance of his estate in trust: “Income to Jennifer for life, remainder to Brad’s son Clooney if he survives Jennifer, otherwise to Brad’s daughter Julia.” The Will devises the remaining ½ of Brad’s estate to Julia. The net value of Brad’s estate (after debts and expenses) is $450,000, which includes the value of Blueacre. Thus, trust is funded with assets worth $200,000 (1/2 of $400K). No t-substitutes are involved. Is Jennifer entitled to file notice to take an elective share?
$450K Net probate estate $150K Elective share amount (Greater of $50K or 1/3 of augmented estate)
(i) Jennifer: $150,000 ($50K from Blue, $100K from the other beneficiaries)
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Procedural rules governing elective share: filing, personal right, and waiver |
1) Filing:
2) Personal Right: Right of election is personal to the surviving spouse b/c the purpose of the elective share statute is to protect the spouse, not her heirs. Thus, although an executor or administrator of the testator cannot elect, the guardian or conservator of an incapacitated spouse may elect (with Court approval).
Note: 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 an explicit waiver of such bequests. |
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Multi-jurisdictional problem for elective share |
1) Rule: The spouse has a right of election only if the decedent was domiciled in New York at the time of his death 2) Exception: if he was not domiciled in NY, she can still claim an elective share with regard to his real property in NY if he expressly stated in his will that the disposition of that property shall be governed by NY law 3) Ex: C, a domiciliary of FL, died, survived by his wife and 2 children. At the time of his death, he owned real property in NY. His will is admitted to probate in FL. Can his wife claim an elective share under the EPTL with respect to the NY real property? NO. C not domiciled in NY, so wife has no right of election under NY law. FL law will apply.
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Exempt personal property |
1) Surviving spouse is entitled to receive exempt personal property (up to 56k) from the estate right away (this is in addition to the elective share)
Exam: unless the bar examiners specifically put this issue in play (e.g., mention tractor), then you should at least add this point as an afterthought (eg., do intestate analysis and then also mention exempt personal property set aside) |
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When the surviving spouse is exempt from taking elective share and exempt property |
1) Surviving spouse cannot make a right of election, take as heir in intestate distribution, wrongful death action recovery, and exempt personal property: DISMAL
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Powers of Appointment: classification of powers |
1) In any POA Q, first classify the power; any combination below is allowed
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Testamentary power |
1) When donee has general or special testamentary power over property but the donee’s will makes no mention of this power (i.e. there is only a residuary clause, or “I leave all my property” clause): A general will provision having such a clause exercises all powers of appointment held by the testator / donee (both special powers and general powers) unless the donor who created the power called for its exercise by a specific reference to the power in the donee’s will.
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POA and Elective Share |
1) A surviving spouse's elective share will only include general presently exercisable POA
2) T sub does not include general testamentary POA or special POA b/c the deceased spouse cannot get to it during his lifetime in the former or ever in the latter
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Donee's creditors' rights and POA |
1) Creditors of the donee can only reach general presently exercisable POA (like above) b/c it is the only POA that the donee can reach herself 2) Exception: creditors could reach general testamentary POA if a) the donor and donee are the same person (gave POA to herself) or b) donee exercised her POA in her will to give the property to herself/her estate 3) Can't reach special POA |
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Examples testing POA |
1) Ex1: Tom’s Will creates a trust: “Income to my daughter Dana for life, and on Dana’s death the principal shall be distributed to such persons as she appoints by Will, including Dana’s estate. If Dana does not exercise this power of appointment, the principal shall be distributed to Dana’s children.”
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Suspension rule and POA |
1) Use LIBs who are alive at the time the POA is exercised (not when it is created) 2) All persons with income interests must be able to collectively convey a fee simple within LIB + 21. Ask 1) Will a person have an income interest beyond the LIB + 21 and if so 2) is that person born yet to be able to give consent. If not, unborn child problem |
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Contracts relating to wills |
1) A contract to make a will or not to revoke wills or trust will be valid and enforceable if it is in writing and signed by the party to be charged 2) A joint will is contractual if it is expressly stated to be contractual. A will that says this is a contract means it cannot be revoked or amended by a later will.
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No contest clauses |
1) NY gives full effect to no contest clauses even if there is probable cause for contesting the will 2) Exceptions:
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Will contests |
1) Defective execution 2) Valid revocation 3) Lack of testamentary capacity 4) Undue influence 5) Fraud 6) Mistake |
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Lack of testamentary capacity |
1) Burden on proponent to prove the testator did not have sufficient capacity to a) understand the nature of his action b) know the nature, extent and condition of his property c) know the names of and his relationship to the natural objects of his bounty and 4) understand the scope and meaning of the provisions in his will 2) Must prove lack of testamentary at the time of execution: does not matter if he was not lucid before. He could even have a lucid interval during which he signed the will 3) Will may be invalid if it is the product of an insane delusion 4) Drunkenness, eccentricity or physical infirmity do not constitute incapacity |
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Undue Influence |
1) Burden to prove by a fair preponderance of the evidence a) existence and exertion of influence b) such that it overpowered or subverted the mind of the testator at time of execution and c) execution of a will that would not have been executed but for such influence. Usually proven through circumstantial evidence 2) If the gift is to a person who is in a confidential relationship with the testator and directly or indirectly helped to draft the will, inference of undue influence. Beneficiary must explain the circumstances and show the gift was made freely 3) Lawyer as executor: permitted but the lawyer must inform the testator a) he could name anyone to be executor b) executors get statutory commission c) he would get 1/2 if this wasn't complied with 4) lawyer still gets his normal fees for legal services rendered to the estate. Must sign a written acknowledgment |
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Fraud |
1) False representations the speaker knows to be false 2) Intent to deceive 3) Testator did not know it was false 4) Reliance by testator 5) result was a will that was different than what it otherwise would be
Fraud in the execution: misrepresentation as to the nature or contents of the instrument (T thinks he is signing POA but actually signing his will) Fraud in the inducement: misrepresentation in the facts that influence the testator (T told a potential beneficiary is dead) |
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Mistake |
1) Wrong will signed: relief granted if party executed reciprocal wills 2) Mistake in inducement that's not undue influence or fraud: no relief 3) Mistake as to contents of will: if there is clear and convincing evidence a provision was omitted, can get relief. But if will is unambiguous, can't admit evidence to show testator made a mistake in describing the beneficiary or property 4) Ambiguity: if it is latent ambiguity (e.g., description applies to two people or applies to none but fit two imperfectly), extrinsic evidence, including T's declarations to others, admissible. If patent ambiguity, uncertainty exists on the face of the will ($25 but says sum of twenty-five thousand) |
