Nys Wills -- Will Contests

Front 1

Rule: Mistake

Back 1

PRESUME the testator read the will and intended its consequences.

Can't overturn plain meaning with extrinsic evidence

Front 2

Rule: Latent Ambiguity

Back 2

Error is not evident by looking at the will.

Can use extrinisc evidence to clarify or find themeaning of testator's wills.

If not cured, the gift fails.

Front 3

Rule: Patent Ambiguity

Back 3

Obvious facial error.

Extrinsic evidence OK, but ONLY
1: facts and circumstances
2: statements to attorney

NOT statements to third parties.

Front 4

Approach: Conditional Wills

Back 4

Argue both ways.

Shouldn't be probated because condition not fulfilled

Should be probated because condition was only the motivation for making it.

Front 5

Rule: Contract to Make a Will

Back 5

A contract to make a will or not to revoke a will can ONLY be established by an EXPRESS statement of intended that the will provisions are INTENDED to constitute a contract between the parties

Front 6

Rule: breaching a joint contractual will by creating a new will

Back 6

1: probate new will
2: apply a constructive trust in favor the first will.

Front 7

Rule: Testamentary Capacity

Back 7

Testator must have capacity to:
1: under stand the nature of his act
2: know the nature and approximate value of his property
3: know the "natural object of his bounty" e.g. know his family and loved ones
4: understand the dispositions

NOTE: capacity to make a will is less than for other things. Can be declared incompetant and still make a potentially valid will.

Front 8

Rule: Proving a will challenge for Undue Influence

Back 8

Challenger must prove
1: EXISTENCE and exertion of an INFLUENCE
AND
2: effect was to OVERPOWER the mind and will of testator
AND
3: product is a will or gift that would not have happened but for the will.

Front 9

Rule: evidence of undue influence

Back 9

NOT sufficient:
1: opportunity to influence
2: susceptibility due to age or illness
3: unequal dispositions

OK:
1: gift to one in a confidential relationship who was active in drafting the will.

Front 10

Define Putnam Scrutiny

Back 10

Surrogate's Court automatically inquires into whether a bequest to the drafting attorney was voluntarily made.

Front 11

Rule: Drafter as Executor

Back 11

Drafting attorney must disclose:
1: anyone can be executor
2: executor receives a commission
3: atty entitled to legal fees for handling the estate

Testator must sign written disclosure with 2 witnesses.

Else, attorney receives 1/2 commission.

Front 12

Rule: NY In Terrorem Clauses

Back 12

Will be given full effect EVEN with probable cause to challenge the will.

Except if:
1: claiming forgery ro revocation by a later will
2: if filed on behafl of an incompetant
3: proceeding to construe terms
4: objection to jurisdiction