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38 Cards in this Set

  • Front
  • Back
Execution of Will: requirments
1) Testator 18

2) SIGNED by T (or someone at his direction) (any identity mark ok) (volitional help key, help ok) (if person signs for T, cant be attesting W)

3) T signed AT END (anything below signature ignored, rest submitted) (if stuff below so material, whole will invalid)

4) T ACKNOLEDGED signature in presence of each witness (contemporanous transaction makes order irrelevent)(W doesnt have to actually see the signing, T show W signature, say will is his)

5) T must PUBLISH - communicate to W they are W a will, not some other document

6)2 ATTESTING Ws (don't have to be in each other presence) (don't have to be in Ts presence)

7) must complete cerimony within 30 days (starts with first witness signing)
attestation clause:
recites facts of due execution and establishes a prima facie case for probate where Ws not available to testify or hostile
self-proving avvidavit:
ok in lui of Ws testimony - (W affidavit that will properly executed)
interested witness: supernumery rule, whatever is least rule, etc
(will still valid)

(if benficiary, will still valid, but bequest is void unless: still 2 disinterested Ws)

(lessor of intestate share or bequiest)
holographic wills:
not valid in NY unless meet execution requirements

miltary personel exception
Foreign WIlls Act
1) NY laws

2) law of state executed in

3) law of T domicile at time of execution or T death
Revocation: subsequent testamentary instrament
executed with proper formalities

writing void on each page, not enough, no 2 W
revocation: physical act
burning, tearing, mutalating, canceling

writing viod across front face, or obliterating words is enough -mutilation

crossing out signature enough, anything that destroys signature deemed decisive for revocation
simultanious death
any breif moment enough to not apply the USDA

T property pases as if B predeceased T (anti-lapse applies)

death by both joint tenets or T by the E - property pass as tenents in common 1/2 share by each will/intestacy
class gifts
members of class who survive testator share gift

anti-lapse statute trumpes class gift rule (if brother sisters, or issue)

rule of convenience: class closes when T dies (280 day gestation period) (or for trusts: class closes when member can demand payment (when Income Benificiary dies))
Intestate Succession: no will
each generation takes per capita

if spouse no issue - all spouse

if spouse and issue = spouse gets 50k + 1/2 - the remaining 1/2 goes to issue per capita at each generation

count at each level living persons + decesed persons with living heirs, divide by that total, pool remainder to next level and repeat

this applies to testate or trust provisions to issue or heirs

in-laws and step children out

no provision in will for expected devise is valid
Intestate succession: no spouse or issue, order
1) surviving parents, 2)in none, to siblings with issue rules, 3) if none, split to grandparents, 4) great grandchildren of grandparents, 5) state
marraige after will executed
has no effect on Will - (elective share)
divorce after will executed
revokes any gifts to spouse (spouse predeceased T) and spouse is not executor by operation of law

doesnt effect gifts to spouses family or kids not by T

must be final decree (not pending proceeding, or speratio agreement)

if remarries - restored will as to spouse
pretermitted child
born or adopted after Will executed

treat as if part of class gift (share with siblings)

gets intestate share if children get screwed in will, or if no kids at time of will execution

pretermitted child statute: statute does apply if children alive adopted at time of will execution, or if child provided for by other arraingement (life insurance,etc)
no incorporation by reference in NY
EPTL bars this, unless created with formalities of will

allows use of pour over wills and inter vivos trusts
acts of independant significance
are valid
nontestamentary assets
life insurance,, survivorship estates

not governed by will

subject to probate
specific gift of encumbered property
default is that passes subject to mortgages and leins

EPTL - no exoneration of liens unless specifically directed to pass that way

"pay just debts" not good enough
specific disposition - my - ademption applies

ademption is: when specific bequiest not in estate on T death the gift fails
ademption: general disposition
gifts of a general amount

ademption does not apply, other property sold to satisfy
ademption demonstrative disposition
gifts of general amount to be paid from specific or identitfied property

ademption does not apply, other property sold to satisfy
ademption statutory exceptions
insurance proceeds of bequethed property lost/damaged

executory contracts - B takes remained payments owed to extent paid after death of T

traceable proceeds of sale of bequethed property by garudian or executor (not T)
ademption shares of stock
stock sold before death

I give 5k to be paid from sale of stock - demonstrative gift - no ademption

i give 100 shares of IBM - since IBM publicly traded, general gift, no ademption. gets date of death value

if stock close corp, then ademption applies

stock splits - specific bequest extra shares go to the person who was given the first shares
Elective Share - Basics
did spouse get greater or 50k or 1/3 of net estate (after debts paid but before estate taxes)
elective share: TSUBS, augmented estate includes:

totton trusts (to A, as trustee for B)

survivorship estates (joint tenancies, T by E, joint bank accounts) if held by SS and D, 1/2 goes in, if held by D and TP - consideration furnished test (if created bf marriage only 1/2 of cinsideration furnished goes in)

lifetime transfers that include power to revoke (rev. trusts)

employee pension benifit plans (1/2 of total)

gifts above the 11k exclusion made within one year of death

us bonds
elective share: augmented estate does not include

life insurance policies

other half of pension

gifts below 11k

pre-marriage irrev. transfers (joint tenacy pre marraige)

irrevocable transfers made more than 1 year before death

transfers with a retained life estate made before 9/1/92
elective share: disqualifying

divorce or annulment (valid under NY law)

invalid divorce (SS obtained it not D)

seperation decree (agreement not enough)

marriage void - bigamous/incest

abandonment, lack of suppport SS purpotrated
Will Contests: testamentary capacity
1. understood making a will

2. knew nature and value of property

3. knew natural objects in his bounty

4. understood disposition he was making

5. could have TC even if declared incometant by court and have gaurdian (moment of lucidity
Will contests: undue influence
burden on contestant to show all:

1. existance and exertion of influence

2. effect was to overpower Ts mind and will

3. prodcut is will or gift not executed but for influence
will contests: undue influence, lawyers
if will makes gift to person in confidential relationships, presumption is undue influence

PUTNUM scutiny if gift to drafting attorney even if no objection filed
drafting attorney named executor then attorney must:
give written disclosure that says:

1) any person can be named

2) executors recieve commissions

3) L can get legal fees

2 Ws must attest

if fails, the executors commision reduced by 50%
no contest clauses
presumed valid - some exceptions:

1) forgory grounds

2) will revoked y later will grounds and PC (not if argument is revokation by physical act)

3) contest filed on behlaf of incompetant or infant

4) suit to construe terms

5) Jurisdiction objection
fraud will contests
1)misrep as to the nature or contents of the will OR

2) induced to making will by misrep of facts that influence motivation
mistake wills
mistaken as to nature of instrament (thought power of attorney form, not will)
power of appointments: presently exercisable general power
can appoint principal to anyone by will or during life
power of appointments: general testamentary power
only by will in favor of anyone - if will is silent presumed to B heirs, unless specific reference clause
power of appointment: special
can only appoint to particular parties, but not creditors, or herslef, or estate