Wills - Bar Exam Essay Questions

Front 1

Effect of a beneficiary's renouncing his bequest

Back 1

To renounce his bequest effectively, F must (i) file an irrevocable rununciation; (ii) which is notarized; (iii) within nine months of the death. In addition, F must file a separate affidavit that he received no consideration for his renunciation. The effect is that F will be treated as having predeceased the testator. F's bequest will lapse. Antilapse statute may apply if there is sibling or issue.

Front 2

Issue whether testamentary gifts to charity are limited

Back 2

The limitation on testamentary gifts to charity has long been abolished.

Front 3

Whether a potential will beneficiary can recover for an attorney's negligence in drafting a will

Back 3

New York courts still hold to the theory that under the privity of contract doctrine a lawyer's duty runs only to the client. For any other party to recover, she would have to show that L breached a duty to her which resulted in harm. While a negligence action could be brought, damages would be nonexistant as no breach.

Front 4

Issue is whether an interested witness can inherit under a will

Back 4

Under the EPTL, while an interested witness does not invalidate the will, a disposition to an interested witness may be void. But if the interested witness is also an intestate distributee, the witness will take the lesser of her legacy and her intestate share.

Front 5

The issue is the status of a specific devise if the subject matter no longer exists

Back 5

The doctrine of ademption applies. A specific bequest which is not in the estate at the death of the testator fails and the devisee takes nothing. Although the EPTL provides that casualty insurance proceeds will be paid to a specific devisee in spite of the doctrine of ademption, the statute covers only proceeds paid after death of the testator.

Front 6

The issue is the effect of the beneficiary of the residuary estate predeceasing the testator and leaving issue

Back 6

The EPTL provides that in the event of the death of a residual legatee, the residue will pass to the surviving residual beneficiaries. The statute relating to residual beneficiaries gives way to the anti lapse statute, hence the devise will pass to the daughter.

Front 7

The issue is whether a husband's bequest to his wife satisfies the right of election

Back 7

The elective share is 1/3 of the net estate. Wife takes the difference between the H's actual bequest and W's elective share.

Front 8

The issue is whether an attorney who is also the executor and attesting witness of a will inteferes with the will's admission to probate

Back 8

Under the EPTL and the SCPA there is no rule that prohibits the same individual from acting as both attorney and witness of a will. Furthermore, the fact that a person is the attorney, executor, and witness of the Last Will and Testament will not effect the probate of the will. In NY an attesting witness who is also named as executor is a competent witness to the will's execution. A "beneficial disposition or appointment" to an attesting witness may be void. The term "beneficial disposition or appointment" does not apply to appointment as an executor. It only applies to beneficial dispositions and appointments that bestow a financial benefit. Appointment as an executor is not considered a beneficial disposition, as the executor earns his commissions.

Front 9

What disclosure is required if attorney drafts a will that names the attorney as executor?

Back 9

That (i) Any person not juswt an attorny can be named executor; (ii) executors are entitled to statutory commissions; (iii) the attorney also will be entitled to attorney's fees for any legal services rendered to the estate. Client must sign a written acknowledgement of the disclosure. Absent compliance, the commission of the attorny shall be one half of the statutory commission.

Front 10

Issue is whether there are enough witness available to prove the will

Back 10

Under the EPTL the burden of proving that a will was properly executed is on the will proponent. The testimony of two witnesses to the will's execution is required. However if one witness is deceased the testimony of the other witness will suffice.

Front 11

The issue is whether a lifetime gift is considered an advancement of an inheritance

Back 11

An advancement is payment or gift to an heir during one'e lifetime. At common law this was presumed to be an advancement of part of his intestate share. IN NY such a gift is not treated as an advancement unless proved by writing: (i) made contemporaneously with the gift; (ii) signed by the donoer; (iii) and evidencing his intention that the gift be treated as an advancement.

Front 12

The issue is how much a surviving spouse is entitled to under the elective share statute

Back 12

Under the EPTL a surviving spouse is entitled to take the greated of $50,000 or 1/3 of the decedent's net estate. However, in an interest to preserve the decedent's testamentary scheme as must as possibel, the surviving spouse takes any outright gifts that arfe given to the spouse under the will, and the elective share is reduced by the value of such gifts. Terminable interests, such as life estates, do not constitute outright gifts and their value is not applied to reduce the elective share.

Front 13

Issue whether a negative bequest is recognised in NY

Back 13

In NY a parent is not compelled to leave property to his child. NY recognises the validity of provisions in a will that direct how property shall not be disposed, with any property passing by partial intestacy being distributed as though the disinherited person had predeceased the decedent. Absent any proof of lack of capacity,, fraud, or under influence, the disinheritence is valid and enforceable.

Front 14

Issue is how an estate should be distributed if a will is denied probate

Back 14

The laws of intestacy apply when (i) the decedent did not leave a will: (ii) the decedent's will is denied probate; or (iii) the decedent left a will but the will does not make a complete disposition of the estate.

Front 15

The issue is what constitutes adequate proof of due execution of a will.

Back 15

EPTL provides that, in order for a will to be duly executed the following events must take place: the will must be signed by the testator at the end of the will; the testator must sign or acknowledge his signature in the presence of each attesting witness and must declare to the witnesses that this is his will; at least two witnesses must attest the testator's signature and sign their names, within 30 days of one another; and the testator must have testamentary capacity. The BOP falls on the proponent of the will. Can be admitted to probate in the absence of witnesses if the court is satisfied from all the evidence that the will was properly exeucted.

Front 16

Can a testator make a gift to a former spouse?

Back 16

EPTL provides that a divorce automatically revokes all dispositions to the divorced spouse UNLESS the will expressly provides to the contrary as in this case.

Front 17

The issue is whether a separation agreement terminates a surviving spouse's right of election

Back 17

Entitled to elective share is gets less than 1/3 under the will. S will not be disqualified from exercising her right of election by virtue of the separation agreement entered into between her and H because the separation agreement was neither final decree of divorce nor a decree of separation rendered against S neither did the separation agreement by its terms constitute a waiver of the right to elect.

Front 18

The issue is the amount of a spouse's elective share and the effect the election has on gifts given to the spouse under the decedent's will

Back 18

Under the EPTL, a spouse who files a notice of election is entitled to one third of the decedents net estate. A decedent's net estate includes testamentary substitutes, such as survivorship estates (joint tenancies) and Totten trusts, but a trust created by another is not a testamentary substitutes unless the trust gives the decedent a presently exercisable power of appointment. The decedent's estate is reduced by debts, administraion expenses, and reasonable funeral expenses but not by estate taxes. The elective share is reduced by the value of any outright gifts the spouse takes under the will or as a testamentary substitite.

Front 19

The issue is the effect an elective share has on gifts to person other than the electing spouse

Back 19

Where a spouse takes her elective share the will is reas as if the spouse predeceased the testator except the beneficiares of the net estate must contribute pro ratably to satisfy the elective share.

Front 20

The issue is whether the gift adeemed by destruction or lapsed by S's death

Back 20

Normally a specific legacy is to be satisfied only by the delivery of the item specified; if it is not in existence at the date of the testator's death then the gift adeems. However, by state, when insurance proceeds on property which is the subject of a specific bequest are paid after the death of the testator, the proceeds received by the executor are payable to the specific legatee.

Front 21

The issue is whether an afterborn child was provided for as a pretermitted child

Back 21

A pretermitted child is a child born after the execution of a will and not provided for in the will. Under NY law a pretermitted chile is entitled to (i) share in bequests to his siblings if substantial gifts were made to them (ii) take nothing if the other children take nothing; (iii) take an intestate share if the other children were given limited provisions. The general rule is that if the testator had no children when the will was executed, the afterborn child takes the intestate share that he would have inherited had the testator died without a will. However if the afterborn child for is provied for by a lifetime transfer, such as a totten trust, he is not entitled to the statute's protection.

Front 22

The issue is whether the subsequent divorce of a beneficiary who is related to the testator only through marriage affects the gift to the beneficiary under the will

Back 22

Under NY law if after executing a will the testator "is divorced, his marriage is annulled, or the marriage dissolved on the grounds of absence, incest or bigamy" any testamentary disposition to the former spouse is revoked. The rule however only revokes testamentary dispositions to a person to whom the testator was married. A bequest to the spouse of a sibling or offspring is not revoked if after execution of the will the sibling or offspring and spouse divorce. Also, if they remarry, the spouse's rights spring back

Front 23

The issue is whether the will was revoked by being found cut in half

Back 23

If a will is in the sole possession of the testator and is found cut or otherwise mutilated, there is a presumption that the testator destroyed the will with the intent to revoke it. (May be overcome by adequate proof to the contrary).

Front 24

The issue is whether NY recognises a holographic last will and testament

Back 24

The will is holographic since it was handwritten by the testator and since it was neither executed with testamentary formalities nor attested to by two disinterested witnesses. The EPTL invalidates all holographic wills except those written by a member of the armed services during a war or a mariner at sea.

Front 25

The issue is whether a separated spouse has any rights in the estate of a deceased spouse

Back 25

Elective share is the greater of $50k or one third of the net estate. She is also entitled to exempt personal property set aside includes items that come over and above property passing to the spouse by will, intestate share or elective share (eg furntiure, car). If the elective share applied only to the probate estate a person who wanted to disinherit a spouse could make nonprobate transfers defeating the proteciton of the elective share statute. TSUBS include totten bank accounts and survivorship estates. A joint tenancy is a survivorship estate in which tenants must take their interests at the same time, by the same title, with identical equal interests and with identical rights to possess the whole. If spouses were tenants by the entirety the stature raises the presumption that the decedents contribution was one half. Life Insurance proceeds are not TSUBS and do not effect the elective share. Spouse will be entitled provided no final divorce decree / decree of separation / abandonment / faliure of support etc.

Front 26

The issue is whether an attorney whoe drafts a will where he is named executor may receive both attorney's fees and an executors commission

Back 26

Absent disclosure and written acknowledgement by client, attorney only gets one half of commission. Still entitled to attorney's fees though.

Front 27

Effect of divorce on a will

Back 27

Spouse may not take / no elective share / may not serve as an executrix.

Front 28

Liability of administrator

Back 28

Under NY law an administrator has a duty to conserve and protect the assets of the estate. In order to fulfil this duty, broad powers are bestowed. However she cannot act in a way that would expose the estate to unnecessary risk. If breach, can be held liable for losses sustained.

Front 29

The issue is whether a handwritten amendment to the will made after the execution of a will is valid

Back 29

In NY a will may be modified or amended by a document (usually a codicil) that complies with the same testamentary formalities needed to create a valid will. In other words, it must be signed by the testator, it must be writted, and it must be published by two witnesses who must sign it within 30 days of each other.

Front 30

The issue is whether the testator's intent will govern the construction of an otherwise valid will

Back 30

In NY if there is no ambiguity, extrinsic evidence is not admissible to show that a provision contained in a will is not what the testator intended. If patent ambiguity exists, that is, a mistake appears on the face of the will, statements made by a testator to her attorney are admissible to cure the ambiguity. Admissible evidence includes evidence about the testator, her family, the claimants under the will and their relationship to the testator and the testator's habits and thoughts.

Front 31

The issue is whether a residuary clause in a will containing "insurance benefits" validly changes the beneficiary under a life insurance policy

Back 31

A life insurance policy is a private contract between the policy holder and the insurance company in which the policy holder lists a specific beneficiary of the policy. An insurance company is bound by its agreement with such policy holder, not by the holder's will. The beneficiary of a life insurance policy can only be changed by complying with the terms of the policy governing the benficiary designations.

Front 32

The issue is whether an oral contract to execute mutual wills is enforceable in New York

Back 32

In NY, the mere execution of mutual wills (ie that contain substantial reciprocal provisions) is not evidence of a contract. A contract to make a testamentary gift is unenforceable unless it is in writing and signed by the party to be charged therewith.

Front 33

The issue is whether a trust was properly established

Back 33

Under NY Law the settlor of a trust must show a clear intention to create a trust. Watch out for intention just to create a landlord tenant relationship rather than to settle a trust.

Front 34

What is required to maintain an action for intentional interference with a contract?

Back 34

Showing that a person who, with knowledge of the contract, intentionally and without justification induced one of the parties to breach the contract.

Front 35

The issue is breach of a director's fiduciary duty for self deadling

Back 35

Direcors owe their corporation a fiduciary duty and will not be allowed to unfairly profit at the corporation's expense. Where a director has an interest in a transaction his corporation is to enter, the director must present all material facts of the transaction to the uninterested directors or the shareholders for approval. Absent such approval the transaction may be set aside if it is unfair to the corporation.

Front 36

The issue is whether a special meeting of a corporation's board of directors can be held without notice

Back 36

Special meetings of a board of directors require notice. The notice need not state the purpose of the meeting, but must provide directors with notice of the place and time of the meeting. However, notice may be waived by (i) a signed, written waiver before or after the meeting or (ii) attendance without protest prior to commencement of the meeting. Where proper notice is neither provided nor waived actions taken at the meeting are invalid.

Front 37

The issue is whether a majority of the board of directors may terminate an emplyee and remove a fellow director

Back 37

Generally the business of the corporation is managed under the direction of the board of directors. The board's management authority may be restricted or transferred to another provided it is allowed under the certificate of incorporation. The BOD has authority to take action provided that proper notice of the meeting has been provided, no less than a quorum is present, and a majority of those present approve the action. The decision to terminate an employee falls within the scope of managing a corporation's business and thus would be an appropriate decision for the BOD to make, provided there is nothing in the facts showing that the BOD was restricted from terminating an employee. NOTE The board meeting was technically no a proper forum for removing a director. Shareholders elect directors and generally directors can be removed only by a vote of the shareholders at a shareholder meeting called for that purpose. However given all the shareholders were present at the board meeting and this is a closely held corporation, a court might dispense with this technicality.

Front 38

The issue is under what circumstances a disgruntled shareholder of a closed corporation can bring an action against the corporation

Back 38

Holders of 20% or more of outstanding shares of a corpoation, no shares of which are listed on a national exchange or otherwise publicly traded, who are entitled to vote in an election of directors, may present a petition of dissolution on the grounds that those in control of the corporation have been guilty of illegal, fraudulent, or oppressive action towards the complaing shareholder.

Front 39

The issue is whether upon proceeding for dissolution a shareholder can be compelled to sell his shares in the corporation back to the corporation

Back 39

Where a shareholder applies for dissolution of a corporation based on fraudulent or oppressive conduct, any other shareholder of the corporaiton may, within 90 days after filing of the petition, prevent dissolution by purchasing the petitioner's shares at the fair market value upon terms approved by the court. If the prospective purchaser and petitioner cannot agree on a fair price the court on motion by the prospective purchaser may stay the proceeding and set a fair value of the shares as of the day before filing the petition.

Front 40

The issue is whether the court should enforce the "right of first refusal" on shares which are part of an employment agreement

Back 40

New York law prohibits unreasonable restraints on alienation of shares. However reasonable share transfer restrictions are valid. Restrictions requiring a selling shareholder to first offer his shares to the corporation generally are valid. However, any restrictions on the price at which a selling shareholder must sell must be reasonable. Restrains on alienation are strictly construed and will not be inferred where not otherwise expressly provided for.

Front 41

The issue is whether a president of a corporation can bring a lawsuit on behalf of that corporation without express authorization from the BOD

Back 41

Unless provided for in the certificate of incorporaiton or bylaws, and in the absence of such prohibition by the board, the president of a corporation has apparent authority to bring suit on behalf of the corporation.

Front 42

The issue is whether a contract entered into on behalf of a corporation prior to incorporation is enforceable against that corporation absent express authorization from the BOD

Back 42

A contract entered into on behalf of the corporation prior to that corporaiton coming into existence is not binding on the corporaiton unless the corporaiton adopts the contract, either expressly or impliedly. Implied adoption can be inferred from a knowing acceptance of the contract's benefits.

Front 43

The issue is whether the standard to be applied in a hearing to determine whether parental rights should be terminated is "the best interests of the child"

Back 43

While "the best interests of the child" is the standard applied when determining the rights of the child, in this case we are dealing with the rights of the parents. The termination of parental righs requires that termination may be ordered for one of the following reasons: (i) abandonment; (ii) inability to care for the child due to mental illness or retardation; (iii) permanent neglect; (iv) severe or repeated child abuse. Must be shown by clear and convincing evidence.

Front 44

The issue is whether a support provision in a separation agreement can be modified

Back 44

Custody and support provisions can be annulled, amended, or modified on notice motion. The child should not, and is not, bound by the terms of the parents' separation agreement. The Court must take into account the child's best interests; the assets, earnings and liablities of the father; and the financial situation of the mother. However, when a modification of support is sought for reasons other than because it is inadequate to meet the child's needs, the party seeking the change must demonstrate that there are unforeseen and unreasonable changes in circumstances warranting modification. With due regard for the parents' circumstances and the best interest of the child, the court may award educational expenses, including those for college. However a court should not freely disregard the child support provisions in the separation agreement.

Front 45

Parental Kidnapping Prevention Act

Back 45

mandates that full faith and credit be given to child custody determinations of another state if hte PKPA's jurisdictional standards are met despite the fact that custody determinations are not final.

Front 46

Issues is whether spousal support can be modified for cohabitation

Back 46

The Domestic Relations Law gives the court discretion to eliminate maintenance provisions from a divorce decree upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man. Cohabitation alone does not manifest a "holding out". Relief will not be obtainable retroactively.

Front 47

Temporary Maintenance

Back 47

Where the parties have entered into a separation agreement that provides for maintenance a court may not order temporary maintenance. Will not be set aside unless it is breached.

Front 48

The issue is whether a party may request blood testing to determine the paternity of a marital child and deny the spouse's paternity

Back 48

Under NY law the Family Court ordinarily is to advise parties of their right to one or more genetic marker tests or DNA tests and on the court's own motion or the motion of any party the court may order the mother, her child, and the alleged father to submit to one or more genetic marker or DNA tests. No such test is to be ordered however upon a written finding by the court that it is not in the best interests of the child on the basis of res judicate, equitable estoppel, or the presumption of legitmacy of a child born to a married woman. Estoppel applied to prevent the enforcement of rights that would work a fraud or injustice upon the person against whom enforcement is sought and who, in reliance on the opposing party's words or conduct, has been misled into acting upon the belief that enforcement of any purported rights would not be sought. Furthermore NY courts are more inclined to impose equitable estoppel to protect the status of a child in an already recognised and operative parent child relationship

Front 49

At issue is that standard to be applied when a custodial parent petitions the court for approval to geographically relocate with a child and the relocation will substantially affect the noncustodial parent's visitation rights.

Back 49

Under NY law in order to approve the relocation of a custodial parent and child the court must determine by a POTE that the proposed relocation will serve the best interests of the child. In determining what is in the best interests of the child the court may consider factors such as ecah parent's reasons for seeking or opposing the move,, the quality of the relationships between the child and the custodial and noncustodial parents, the impace of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically emtionally and educationally by the move and the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements.

Front 50

The issue is whether maintenance payments terminate after the paying spouse dies

Back 50

Under NY Dom Relations law spousal support agreements terminate when either party dies, the receiving spouse remarries, or the receiving spouse lives with another and holds herself out as married to that person. This rule, howeve, applies absent an alternative arrangement. So if H says he will pay until her death and H dies first, his estate will be liabe.

Front 51

Judicial Separation

Back 51

NOTE: there is no time requirement to constitute abandonment

Front 52

The issue is whether a mortgage will be deemed to contain an acceleration clause even though it is silent on this

Back 52

An acceleration clause permits the mortgagee to declare the full balance due by the mortgagor in the event of default. Under NY law in the absence of an acceleration clause agreed on by both parties a default in payment will only give the mortgagee the right to commence an action against the defaulting party to collect on the debt or to foreclose on the mortgage. There is no acceleraiton clause implied by law.

Front 53

The issue is how the court will set a defendant spouse's child support obligations if such spouse defaults in answering the complaint in a divorce action

Back 53

Child support is the sum paid by either or both parents for the care maintenance and education of any unemancipated child under age 21. Parental misconduct is irrelevent when determining child support obligaitons. Absent an agreement between the parents NYS law requires that the courts follow a mechanical formula to determine the financial responsbility of each parent. The formula applies a fixed percentage based on the number of children and considers the combined gross incomes of the parents then prorating based on respective incomes. Will be modified if this brings an unjust result.

Front 54

The issue is whether a deed citing an ownership interest as that of "husband and wife" creates a tenancy by the entirety even though the parties to the deed were not married until after the property was acquired

Back 54

When a disposition of real property is made to unmarried persons whom the conveyance describes as "husband and wife" a joint tenancy is created unless a tenancy in common is expressly declared. Subsequent marriage to each other by the parties does not convert the joint tenancy to a tenancy by the entirety absent a new conveyance.