Wills New York

Front 1

Intestate Descent and Distribution: When Descent and Distribution Rules Apply

Back 1

Descent and distribution rules apply when:
1. The decedent left NO WILL (i.e., died intestate);
2. The decedent’s will is DENIED PROBATE (e.g., the will was not properly executed or is successfully contested by the decedent’s heirs); or
3. The decedent left a will, but the will DOES NOT MAKE A COMPLETE DISPOSITION of the estate.

Front 2

Intestate Descent and Distribution: Intestate Survived by Spouse

Back 2

When a decedent is survived by a spouse, the estate is distributed as follows:
1. SPOUSE AND ONE OR MORE CHILDREN or their issue survive: Spouse takes 50,000 plus one-half of the balance. The remaining one-half passes to the children of their issue per capita at each generation.
2. SPOUSE survives, but not issue: Spouse takes entire estate.

Front 3

Intestate Descent and Distribution: Intestate Survived by Spouse: When Spouse Disqualified as Distributee

Back 3

A spouse is disqualified as an intestate distributee if:
1. A FINAL decree of divorce or annulment terminated the marriage prior to the decedent’s death;
2. A final decree of separation has been rendered AGAINST the surviving spouse;
3. The surviving spouse obtained a divorce in another jurisdiction, not recognized as a valid divorce in NY;
4. The marriage was bigamous or incestuous;
5. The surviving spouse abandoned the deceased spouse, and the abandonment continued until his death; or
6. The surviving spouse failed or refused to support the deceased spouse.

Front 4

Intestate Descent and Distribution: Intestate Survived by Spouse: Rights of Unmarried Cohabitants

Back 4

Although NY does not permit common law marriages, it recognizes common law marriages validly contracted in a state that permits them, thus enabling the surviving spouse to inherit or to file for an elective share in NY. However, the surviving partner of a same-sex relationship does not inherit.

Front 5

Intestate Descent and Distribution: Issue Take Per Capita at Each Generation

Back 5

The share of the estate that does not pass to the surviving spouse (or the entire estate if the decedent left no surviving spouse) passes to the decedent’s issue, who take per capita at each generation. The initial division of shares is made at the first generational level at which there are living takers, but the shares of deceased persons at that level are combined and then divided equally among the takers at the next generational level. Thus, distributees in the same degree of kinship to the decedent always take in equal shares.

Front 6

Intestate Descent and Distribution: Intestate Not Survived by Spouse or Issue: To Parents or Surviving Parent

Back 6

If no spouse or issue survive, the estate passes to the decedent’s parents equally if both survive; all to the surviving parent if one survives. A parent cannot inherit from his child if he failed or refused to support the child or abandoned the child while the child was under age 21, whether the child dies before or after age 21.

Front 7

Intestate Descent and Distribution: Intestate Not Survived by Spouse or Issue: Not Survived by Parents—To Brothers and Sisters or Their Issue

Back 7

If the decedent is not survived by a parent, the estate passes per stirpes to his brothers and sisters and issue of deceased brothers and sister, who take per capita at each generation. No distinction is made between whole bloods and half bloods.

Front 8

Intestate Descent and Distribution: Intestate Not Survived by Spouse or Issue: Not Survived by Issue of Parents—One-Half to Each Set of Grandparents or Their Issue

Back 8

If a decedent is not survived by parents or the issue of parents, one-half of the estate passes to the maternal grandparents or surviving grandparent; if neither is living, to their issue, who take per capita at each generation. The other one-half passes to the paternal grandparents or their issue in the same manner. If there are no maternal grandparents or their issue, everything passes to the paternal grandparents of their issue (and vice versa). “Issue of grandparents” is limited to grandchildren (decedent’s first cousins), and does not include great-grandchildren. If a decedent’s nearest kin are the grandchildren of the maternal grandparents and great-grandchildren of the paternal grandparents, the grandchildren take all.

Front 9

Intestate Descent and Distribution: Intestate Not Survived by Spouse or Issue: Great-Grandchildren of Grandparents—Take Per Capita

Back 9

If the decedent’s nearest kin are great-grandchildren of his grandparents, one-half in equal shares passes to the great-grandchildren on the maternal side, and the other half passes in equal shares to the great-grandchildren on the paternal side. If there are great-grandchildren on only one side, they inherit the entire estate.

Front 10

Intestate Descent and Distribution: Intestate Not Survived by Spouse or Issue: No Inheritance Beyond Great-Grandchildren of Grandparents

Back 10

If a decedent is not survived by a spouse, issue, parents, issue of parents, or by grandparents or their issue (down to great-grandchild level), the estate ESCHEATS TO THE STATE.

Front 11

Intestate Descent and Distribution: Adopted Children, Nonmarital Children, and Posthumous Children: Adopted Child

Back 11

As to the adoptive family, an adopted child is treated the same as a child by birth. As to the birth parents, all inheritance rights are cut off, with two exceptions. First, if a birth parent has married an adopting parent, the adopted child is treated as a child of both birth parents and of his adoptive parent. If the child is adopted by a family member and thus is related to the decedent by both birth relationship and adoption, the child inherits only under the birth relationship unless the decedent is the adopting parent, in which case the child inherits under the adoptive relationship only. Adoption between adults in a same-sex relationship is not permitted.

Front 12

Intestate Descent and Distribution: Adopted Children, Nonmarital Children, and Posthumous Children: Stepchild or Foster Child has No Inheritance Rights

Back 12

A stepchild or foster child who is not adopted generally has no inheritance rights from or through his stepparents or foster parents. However, under the doctrine of ADOPTION BY ESTOPPEL, a stepchild or foster child can inherit from or through his stepparents or foster parents as though legally adopted if the stepparent or foster parent took custody of the child UNDER AN AGREEMENT WITH THE BIRTH PARENTS that he would adopt the child, and never carries out the agreement. In such a case, a stepparent or foster parent is estopped from denying the existence of a valid adoption so far as inheritance rights are concerned.

Front 13

Intestate Descent and Distribution: Adopted Children, Nonmarital Children, and Posthumous Children: Nonmarital Child

Back 13

A nonmarital child is the child of his mother for inheritance purposes in all cases. The child and his kin have full inheritance rights from his father and his father’s kin, and his father and his kin have full inheritance rights from and through the child, if:
1. The child is legitimated by the father’s marriage with the mother;
2. An order of filiation is entered during the father’s lifetime;
3. The father files an acknowledged, witnessed statement of paternity with the Putative Father Registry; or
4. Paternity is established by clear and convincing evidence (e.g., a genetic marker test establishes paternity or the father openly and notoriously acknowledged the child as his own).

Note that a child support agreement (obligating the father to support the nonmarital child), by itself, does not make a child an heir.

Front 14

Intestate Descent and Distribution: Adopted Children, Nonmarital Children, and Posthumous Children: Posthumous Children Take as Distributees

Back 14

Distributees of the decedent, conceived during his lifetime but born alive after his death, take as if they were born in his lifetime. A child born more than 280 days after the man’s death is presumed to have been father by someone else.

Front 15

Intestate Descent and Distribution: Person Absent for Three Years Presumed Dead

Back 15

A person who has been absent without explanation for a continuous period of three years during which, after diligent search, she has not been seen or heard from is presumed to have died three years after the date she disappeared. If the person was exposed to a specific peril, it may be determined that she died less than three years after her disappearance.

Front 16

Succession Problems Common to Inheritance and Wills: Must Survive by 120 Hours

Back 16

Under the Revised Uniform Simultaneous Death Act (“RUSDA”), where title to property depends upon priority of death, an individual who is not established by CLEAR AND CONVINCING EVDIENCE to have survived the decedent by 120 hours is deemed to have predeceased the decedent. The RUSDA applies to distributions of property by any means (intestacy, will, joint tenancy, life insurance contract). In case of joint tenancies and tenancies by the entirety, the RUSDA provides that one-half of the property passes as though one party survived and the other one-half passes as though the other party survives. The RUSDA applies unless the disposing instrument provides otherwise.

Front 17

Succession Problems Common to Inheritance and Wills: Killers Cannot Inherit

Back 17

One who wrongfully kills a person cannot take under his victim’s will or by intestacy. The victim’s estate is distributed as though the killer predeceased the victim. If a party is found not guilty of murder by reason of insanity, he is not precluded from taking by will or intestacy.

Front 18

Succession Problems Common to Inheritance and Wills: Killers Cannot Inherit: Tenants by the Entirety and Joint Tenants

Back 18

There is no right of survivorship in tenancy by the entirety property when one spouse kills another. Similarly, a joint tenant convicted of murdering another joint tenant is not entitled to take any money in a joint bank account that was contributed by the deceased joint tenant.

Front 19

Succession Problems Common to Inheritance and Wills: Killers Cannot Inherit: What Constitutes Proof of Wrongful Killing

Back 19

Proof that an heir or beneficiary was convicted of murder or first or second degree manslaughter is conclusive and results in a forfeiture. When there is no conviction, proof of the wrongful killing must be by a PREPONDERANCE OF THE EVIDENCE.

Front 20

Succession Problems Common to Inheritance and Wills: Advancements; Satisfaction of Legacies

Back 20

At common law, a lifetime gift to a child was presumed to be an advancement (i.e., an advance payment) of part of her intestate share. In New York, a lifetime gift to a distributee is not treated as an advancement unless proved by a writing, contemporaneous with the gift, signed by:
1. The donor evidencing her intention that the gift be treated as an advancement, or
2. The donee acknowledging that such was the intention.

Front 21

Succession Problems Common to Inheritance and Wills: Advancements; Satisfaction of Legacies: Procedure if Advancement Found

Back 21

The amount advanced is added to the net value of the estate for the purpose of computing the intestate shares. Then the intestate share of the advance is reduced by the amount advanced. If the advancement is greater than the advancee’s intestate share, she does not have to return the excess.

Front 22

Succession Problems Common to Inheritance and Wills: Advancements; Satisfaction of Legacies: Satisfaction of Legacies

Back 22

The NY “advancement” statute also applies to lifetime gifts to a beneficiary under an existing will: Such a gift is not treated as in satisfaction of the legacy unless proved by a CONTEMPORANEOUS WRITING signed by the donor of by the donee.

Front 23

Succession Problems Common to Inheritance and Wills: Disclaimer (“Renunciation”) of Intestate Share, Gift, or Transfer

Back 23

A beneficiary or distributee may renounce or disclaim an interest that otherwise would pass to the person from the decedent or the decedent’s estate. The disclaimed interest passes as though disclaiming party predeceased the decedent. Any interest can be disclaimed, in whole or in part, including testamentary substitutes, such as life insurance proceeds or a Totten trust account.

Front 24

Succession Problems Common to Inheritance and Wills: Disclaimer (“Renunciation”) of Intestate Share, Gift, or Transfer: Must Be in Writing, Signed, and Acknowledged

Back 24

A disclaimer must be in writing, signed, and acknowledged before a notary public. A disclaimer is irrevocable. It may be made on behalf of an infant, incompetent, or decedent, but is not effective unless approvedowledged

Front 25

Succession Problems Common to Inheritance and Wills: Disclaimer (“Renunciation”) of Intestate Share, Gift, or Transfer: Affidavit and Filing Required

Back 25

A disclaimer must be accompanied by an affidavit that no consideration was received in making the disclaimer. To be effective, the disclaimer must be filed with the Surrogate’s Court WITHIN NINE MONTHS after
1. The Date of transfer or
2. The beneficiary’s 21st birthday.

Front 26

Succession Problems Common to Inheritance and Wills: Disclaimer (“Renunciation”) of Intestate Share, Gift, or Transfer: Disclaimer Does Not Affect Shares of Other Distributees

Back 26

If a disclaimer would result in a distribution of the property by representation, the interest passes as though the disclaimant died on the same date as, but immediately after, the decedent.

Example: D dies intestate survived by a son (S), S’s son (A), and B and C (the children of D’s deceased daughter E). If S disclaims his share, S will be treated as having died on the same day as, but after, D. That way A will receive one-half of the estate, and B and C will receive one-quarter each. Without this special rule, S would be treated as having predeceased D and, when the “per capita at each generation rule” is applied. A, B, and C would each take one-third. The purpose of the rule is to avoid the diminution of S’s share.

Front 27

Exam Tip

Back 27

The above rule applies only for the purpose of preserving the representational share of the disclaimant when the “per capita at each generation rule” is applied. For all other purposes, the disclaimant is deemed to have predeceased the decedent.

Front 28

Succession Problems Common to Inheritance and Wills: Disclaimer (“Renunciation”) of Intestate Share, Gift, or Transfer: No Disclaimer After Acceptance of Property

Back 28

No disclaimer is allowed after the beneficiary has accepted a distribution of property or any of its benefits, entered into a contract to transfer or mortgage the property, or exercised any control over the property.

Front 29

Exam Tip

Back 29

Remember that acceptance of death benefits under a pension plan does not preclude the disclaimer of gifts under the will.

Front 30

Succession Problems Common to Inheritance and Wills: Disclaimer (“Renunciation”) of Intestate Share, Gift, or Transfer: Avoiding Tax Liability and Creditors’s Claims

Back 30

Timely disclaimers avoid gift tax liability if made within nine months of:
1. The decedent’s death or
2. The beneficiary’s 21st birthday.

A timely disclaimer will also defeat creditors’ claims. However, a disclaimer cannot be used to defeat a federal tax lien. If a LIFE TENANT RENOUNCES, future interests are accelerated.

Front 31

Succession Problems Common to Inheritance and Wills: Disclaimer (“Renunciation”) of Intestate Share, Gift, or Transfer: Medicaid Recipient’s Disclaimer Not Effective

Back 31

A Medicaid recipient cannot renounce her interest in a decedent’s estate without being denied Medicaid eligibility.

Front 32

Succession Problems Common to Inheritance and Wills: Tortious Interference with Inheritance Not Recognized

Back 32

NY does not recognize a right to action for tortious interference with a prospective inheritance. Instead, the proper recourse is a constructive trust.

Front 33

Wills: In General

Back 33

A will is an instrument that takes effect on death, that is revocable until death, and that:
1. Makes a disposition of property;
2. Directs how property shall not be disposed of;
3. Disposes of the testator’s body or any part thereof;
4. Exercises a power of appointment; or
5. Appoints a fiduciary.

A codicil is an amendment or supplement to a will.

Front 34

Wills: In General: Must be Age Eighteen to Make a Will

Back 34

A person must be age 18 or older to make a will. A will executed by a person under age 18 is invalid even if the person dies years later, because he did not have capacity when the will was executed.

Front 35

Wills: In General: Will Has No Legal Effect Until Testator’s Death

Back 35

A will takes effect only upon the death of the testator. Until then, the will may be revoked or amended, and beneficiaries have no rights under the will. A will operates upon circumstances and properties as they exist at the time of the testator’s death.

Front 36

Wills: In General: Testamentary Intent

Back 36

The testator must have a present intent that the particular instrument operate as her will. Promises to make a will in the future, sham or joke wills, and ineffective deeds do not satisfy this requirement.

Front 37

Wills: In General: Conditional Wills

Back 37

A conditional will provides that it is operative only if a condition specified in the will is satisfied (e.g., “If I should not survive this trip…”) Parol evidence is not admissible to show that a will absolute on its face was intended to be conditional.

Front 38

Wills: In General: Holographic and Oral Wills

Back 38

NY does not permit holographic wills (i.e., wills entirely in the testator’s handwriting and not witnessed by attesting witnesses) or oral wills except in very limited circumstances. Oral and holographic wills may be made only under circumstances of armed conflict or by mariners at sea. Such wills become invalid one year following discharge from the armed forces or (in case of civilians) one year after they have ceased serving with or accompanying armed forces. Mariner at sea wills expire after three years.

Front 39

Exam Tip

Back 39

It is important to remember that merely because a will is handwritten does not mean that it is holographic. To be holographic, a will must be both handwritten and UNWITNESSED. When a will in a test question is handwritten, look to see if it is properly witnessed. If so, it is valid under NY law.

Front 40

Wills: Execution of Attested Wills

Back 40

A testator must sign the will (or acknowledge her signature) at the end thereof, in the presence of two witnesses. Furthermore, the testator must declare to the witnesses that the instrument is her will, and the two witnesses must sign within 30 days of each other. No particular order is required for the steps of execution and attestation.

Front 41

Wills: Execution of Attested Wills: Signature Requirement

Back 41

A will must be signed by the testator or by another in her presence and at her direction. Any mark intended as a signature will suffice. A person who signs for the testator MUST also sign his name and cannot be counted as one of the two necessary attesting witnesses.

Front 42

Wills: Execution of Attested Wills: Signature “At the End Thereof”

Back 42

The testator’s signature must be at the end of the will. Any matter following the testator’s signature is disregarded, but the will otherwise remains valid.

Exception: Matter preceding the signature will not be given effect if it is so incomplete as not to be readily comprehensible without aid of matter that follows the signature, or if the testator’s general testamentary plan is defeated as a consequence of giving effect only to the matter preceding the signature.

Front 43

Wills: Execution of Attested Wills: Testator Signs (or Acknowledges Signature) in Witnesses’ Presence

Back 43

The testator must request that the witnesses sign as attesting witnesses. 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(s). There is no acknowledgment if the witness does not see the testator’s signature; note, however, that express, verbal acknowledgment by the testator of the signature is not required. The witnesses need not sign in the testator’s presence.

Front 44

Wills: Execution of Attested Wills: Declaration that “This is My Will”—Publication Requirement

Back 44

The testator’s failure to declare that the instrument being witnessed is her will is fatal to its probate even though all other requirements of due execution are met. (This is called the PUBLICATION requirement.) Declaration may be by another person if in the testator’s presence and with the testator’s acquiescence. Witnesses need not know the contents of the will; all that is required is that they know they are serving as witnesses to a will.

Front 45

Wills: Execution of Attested Wills: Witnesses Must Attest Testator’s Signature and Sign Will Within Thirty Days

Back 45

Two attesting witnesses must, within one 30-day period, attest the testator’s signature and sign their names. There is a rebuttable presumption that the 30-day requirement has been satisfied.

Front 46

Wills: Execution of Attested Wills: Foreign Will

Back 46

A will executed in another state is valid and admissible to probate in NY if executed in accordance with:
1. NY law;
2. The law of the jurisdiction where it was executed, regardless of the testator’s domicile at the time of execution; or
3. The law of the jurisdiction where the testator was domiciled, either at the time of execution or at the time of death.

Once the foreign will is admitted to probate, interpretation is governed by NY law.

Front 47

Wills: Miscellaneous Will Execution Problems: Attestation Clause Raises Presumption of Due Execution

Back 47

An attestation clause that recites facts of due execution establishes a prima facie case for probate where death, disability, or inability to find witnesses prevents their testifying. The same result is reached if the witnesses cannot remember or even if the witnesses are hostile.

Front 48

Wills: Miscellaneous Will Execution Problems: Doctrine of “Integration”—Pages Constituting Duly Executed Will

Back 48

Litigation arises when, e.g., pages are not physically connected and there is no internal coherence. The surrounding circumstances are considered to determine what was intended to be the will.

Front 49

Wills: Miscellaneous Will Execution Problems: Suspicious Circumstances—Must Show Testator Knew Contents of Will

Back 49

If circumstances, indicate that the testator might not have known the contents of the will, the will proponents have the burden of establishing that the testator knew of the contents by reading the will or hearing it read.

Front 50

Wills: Miscellaneous Will Execution Problems: Attorney Liability for Negligent Preparation of Will

Back 50

New York retains the privity of contract defense for attorneys in these cases, which means that the attorney owes a duty only to the client. The effect is that, in a wills case, the client is dead, and the intended beneficiaries cannot sue. However, a PERSONAL REPRESENTATIVE can sue the attorney for losses to the estate resulting from negligent estate planning advice.

Front 51

Wills: Interested Witnesses

Back 51

A disposition to attesting witnesses NEVER invalidates the will. The only consequence is that a disposition to a witness-beneficiary is void unless at the time of execution there are two disinterested attesting witnesses. However, an interested witness who would be an intestate distributee if the will were not established is entitled to the LESSER of her legacy or intestate share. The fact that the attesting witness is named as executor or trustee does not qualify the fiduciary appointment.

Front 52

Wills: Proof of Wills in Probate: Burden of Proof of Due Execution is on Will Proponent

Back 52

The burden of proof of due execution is on the will proponent. Whether a will has been validly executed is a question of fact to be determined by the court (or the jury).

Front 53

Wills: Proof of Wills in Probate: General Requirement—Testimony of Two Attesting Witnesses

Back 53

If a will was not self-proved, at least two witnesses must testify as to the facts of the execution of the will, and the testimony must show that the requirements of due execution were complied with. If one witness is dead, cannot be located, or is incompetent, the testimony of the other witness suffices. This rule also applies where one witness is absent from the state and the will is not contested. But where it is shown that a witness’s testimony can be obtained with reasonable diligence, the court will, upon demand of any party, require the witness’s testimony be taken by commission.

Front 54

Wills: Proof of Wills in Probate: General Requirement—Testimony of Two Attesting Witnesses: All Witnesses Unable to Testify—Proof of Signatures

Back 54

If the attesting witnesses are unable to testify, the will may be admitted to probate upon PROOF OF HANDWRITING of the testator and at least one of the attesting witnesses and such other facts as would be sufficient to prove the will.

Front 55

Wills: Proof of Wills in Probate: General Requirement—Testimony of Two Attesting Witnesses: All Witnesses Forget or Are Hostile

Back 55

A will may be admitted to probate even if the attesting witnesses do not recall the execution of the will or testify against the will’s due execution, provided the court is otherwise satisfied from all of the evidence that the will was properly executed.

Front 56

Wills: Proof of Wills in Probate: Self-Proving Affidavit

Back 56

Affidavits of witnesses that the will was properly executed are permitted in lieu of the witnesses’ in-court testimony.

Front 57

Revocation of Wills; Lost Wills: Revocation by Operation of Law—Changed Circumstances: Subsequent Marriage Does Not Affect Will

Back 57

A subsequent marriage does not affect a will because the surviving spouse has the protection of the elective share statute.

Front 58

Revocation of Wills; Lost Wills: Revocation by Operation of Law—Changed Circumstances: Divorce, Legal Separation, or Annulment Revokes Testamentary Dispositions in Favor of Former Spouse

Back 58

Divorce, legal separation, or annulment of a marriage following execution of a will revokes ALL testamentary provisions in favor of the former spouse, including fiduciary appointments as executor or trustee. The will takes effect as though the former spouse had predeceased the testator. The statute also applies to certain nonprobate transfers (e.g., life insurance policies).

Front 59

Exam Tip

Back 59

Beware of fact situations involving gifts or appointments to a former spouse’s RELATIVES. The rule only revokes gifts or appointments in favor of the FORMER SPOUSE; it does not apply to her relatives.

Front 60

Exam Tip

Back 60

Also, remember that the statute covers dissolution of the TESTATOR’S marriage only. Thus, a disposition to a brother-in-law is operative despite a divorce from the testator’s sister.

Front 61

Revocation of Wills; Lost Wills: Revocation by Operation of Law—Changed Circumstances: Pretermitted Child Statute

Back 61

A child born or adopted after execution of a will and not provided for or mentioned in the will shares in the estate. A parent is not compelled to leave any property to his children. The statute protects only afterborns (i.e., children born during the testator’s lifetime or in gestation at his death) who are not provided for by any settlement or in the will.

Front 62

Revocation of Wills; Lost Wills: Revocation by Operation of Law—Changed Circumstances: Pretermitted Child Statute: If Testator Had Child or Children When Will Executed

Back 62

If the testator had other children when the will was executed, the afterborn child:
1. Takes nothing if the other children were not provided for;
2. Shares in the gift to his siblings if substantial gifts were made to the other children; and
3. Takes an intestate share if only limited provision was made for the existing children.

Front 63

Revocation of Wills; Lost Wills: Revocation by Operation of Law—Changed Circumstances: Pretermitted Child Statute: If Testator Had No Children When Will Executed—Afterborn Takes Intestate Share

Back 63

If the testator had no children when the will was executed, the afterborn takes the intestate share he would have inherited had the testator died without a will.

Front 64

Revocation of Wills; Lost Wills: Revocation by Operation of Law—Changed Circumstances: Pretermitted Child Statute: Satisfaction of Pretermitted Child’s Intestate Share

Back 64

If satisfying the pretermitted child’s intestate share, the bequests to the will beneficiaries are reduced PRO RATA. The abatement rules applicable to creditors’ claims DO NOT APPLY.

Front 65

Revocation of Wills; Lost Wills: Revocation by Operation of Law—Changed Circumstances: Pretermitted Child Statute: Statute Does Not Operate If Afterborn Provided for by Any Settlement

Back 65

The statute does not operate if the afterborn is provided for by any settlement. Any form of lifetime transfer may be a settlement (e.g., Totten trusts, life insurance policies, and savings bonds). The size or appropriateness of a settlement is not important. The basic requirement is that the lifetime transfer shows that the testator saw the need to make some disposition for the afterborn child. The settlement may be contingent interest.

Front 66

Revocation of Wills; Lost Wills: Revocation by Operation of Law—Changed Circumstances: Pretermitted Child Statute: Statute Does Not Operate If Afterborn Provided for or Mentioned in Will

Back 66

The pretermitted statute does not operate if the afterborn of after-adopted child is provided for or mentioned IN ANY WAY in the will.

Front 67

Revocation of Wills; Lost Wills: Revocation by Operation of Law—Changed Circumstances: Pretermitted Child Statute: Who Are Afterborn “Children” Covered by Statute

Back 67

Afterborn children covered by statute include an adopted child, posthumous child, and nonmarital child (a nonmarital child is a child of his mother for purposes of the pretermitted child statute; he is the child of his father for this purpose only if paternity is established in one of the ways recognized by the intestacy statute). A grandchild is not protected.

Front 68

Exam Tip

Back 68

Beware of the fact that REPUBLICATION by codicil can result in a change in a child’s status with respect to pretermission. A child born after the will is executed but before the republication is not considered pretermitted and is not entitled to the protection of the statute.

Front 69

Revocation of Wills; Lost Wills: Revocation by Written Instrument

Back 69

A will may be revoked in whole or in part by a later will, codicil, or other writing, as long as the instrument is executed with the same formalities as are required for the execution of the will. A testator who revokes a will must have testamentary capacity. The burden of proof is on the party contending that the will was revoked.

Front 70

Revocation of Wills; Lost Wills: Revocation by Written Instrument: Revocation of Will Revokes All Codicils Thereto

Back 70

Revocation of a will revokes all codicils thereto. However, revocation of a codicil does not revoke the original will.

Front 71

Revocation of Wills; Lost Wills: Revocation by Written Instrument: Revocation by Implication—Inconsistent Provisions

Back 71

A second will can, by implication, revoke the first will to the extent its provisions are inconsistent with the first will. If the later will makes complete disposition of the testator’s property, it revokes all prior wills.

Front 72

Revocation of Wills; Lost Wills: Revocation by Physical Act

Back 72

If the testator had the intent to revoke, a will may be revoked by an act of burning, tearing, cutting, canceling, obliterating, mutilating, or other destruction by:
1. The testator or
2. Another person in the presence of and by direction of the testator.

The act must be done to the will itself, not to a photocopy.

Front 73

Exam Tip

Back 73

Remember that ACCIDENTAL destruction of a will does not revoke it—even if the testator later decides he wanted to revoke it—because the intent to revoke must be present at the time of the physical act of destruction.

Front 74

Revocation of Wills; Lost Wills: Revocation by Physical Act: Presumptions as to Revocation

Back 74

If a will last seen in the testator’s possession or control is not found after death, a presumption arises that the testator revoked the will by physical act. If a will last seen in the testator’s possession or control is found mutilated, the presumption is that the testator destroyed it with intent to revoke. These presumptions may be overcome by proof that the will was not in the testator’s possession or was destroyed by accident. The testator’s declarations generally are not admissible. Note, too, that the presumption does not arise at all if a person adversely affected by the will had access to it.

Front 75

Revocation of Wills; Lost Wills: Revocation by Physical Act: New York Does Not Recognize Partial Revocations by Physical Act

Back 75

New York does not recognize partial revocations by physical act. (If the striking is made before the testator executed the will; however, it will be given effect.) Any attempted partial revocation will be disregarded; the will will be probated as executed. There is a practical exception if the obliterated provision cannot be read. Words added to a will after it has been signed and witnessed are not given effect because they are not part of the duly executed will.

Front 76

Revocation of Wills; Lost Wills: Revival of Revoked Wills

Back 76

A revocation of a later will by physical act does not revive a prior will. This rule also applies to codicils. If a testator revokes a gift by codicil and then destroys the codicil, the original gift in the will is not revived. However, a will may be revived by:
1. Execution of a codicil that incorporates by reference the prior will or one or more of its provisons;
2. A later writing executed with testamentary formalities; or
3. A republication of the prior will, whether to the original witnesses or to new witnesses (reexecution and reattestation with full testamentary formalities are required).

Absent a showing of contrary intent, republication of a will also republishes all codicils thereto, even though the codicils are not mentioned in the republication.

Front 77

Revocation of Wills; Lost Wills: Dependent Relative Revocation

Back 77

The doctrine of dependent relative revocation (“DRR”) permits a court to disregard a revocation if it determines that revocation was premised on a mistake of law or fact and that revocation would not have been made but for the mistaken belief that another disposition of the testator’s property was valid. If the other disposition is ineffective for some reason, the revocation also fails and the will remains in force. DRR should not be applied to defeat the testator’s intent. For DRR to be applied, the disposition that results from disregarding the revocation must come closer to effectuating what the testator tried (but failed) to do than would an intestate distribution. The status of DRR is unclear in New York.

Front 78

Revocation of Wills; Lost Wills: Proof of Lost Wills: Statutory Requirements Must be Met

Back 78

A lost or destroyed will may admitted to probate only if:
1. It is established that the will has not been revoked;
2. Execution of the will is proved in the manner required for probate of an existing will; and
3. All of the provisions of the will are clearly and distinctly proved by at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

However, a will that cannot be probated as a lost will can be used to show that an earlier will was revoked.

Front 79

Revocation of Wills; Lost Wills: Proof of Lost Wills: “Lost Will” Suppressed—Relief Granted under Constructive Trust

Back 79

If a will is suppressed or destroyed by one who would benefit under a prior will or intestacy, and the “lost” will cannot be proven, the remedy is a constructive trust in favor of the testator’s intended beneficiaries.

Front 80

Revocation of Wills; Lost Wills: Proof of Lost Wills: Wills Executed in Duplicate—Both Copies Must be Accounted For

Back 80

The will proponent is required to prove that either:
1. A missing duplicate was in existence at the time of the testator’s death, or
2. Its absence does not flow from an act of the decedent.

Front 81

Components of the Will: Incorporation by Reference: Common Law Doctrine Explained

Back 81

This doctrine permits incorporation into a will of unattested documents not present at the time the will was executed, provided the extrinsic writing is:
1. IN EXISTENCE at the date of the will’s execution, and
2. IDENTIFIABLE from the will with reasonable certainty.

Front 82

Components of the Will: Incorporation by Reference: Doctrine Not Recognized in New York

Back 82

With certain exceptions, incorporation by reference is not recognized in New York. The doctrine is applied only to
1. References to gifts made by another person’s will;
2. Gifts by will to an inter vivos trust executed prior to or concurrently with the will; and
3. Attached lists disposing of tangible personalty.

Front 83

Components of the Will: Facts of Independent Significance

Back 83

A will may provide that a beneficiary or amount of disposition will be determined by some future unattested act occurring after the will’s execution. Such a provision is valid only if the future act has some lifetime significance other than providing for a testamentary disposition.

Front 84

Components of the Will: Republication by Codicil

Back 84

A will speaks as of the date of the codicil. A codicil may revive a previously revoked will only when the earlier is properly executed. A validly executed codicil does not operate to republish a defectively executed earlier will, for this would involve application of incorporation by reference, which is not recognized in New York. Moreover, a codicil cannot revive a will that was revoked by physical act unless the codicil contains the provisions of the earlier instrument.

Front 85

Exam Tip

Back 85

For questions involving alterations ON THE FACE OF THE WILL, you must know that any addition, alteration, interlineation, or deletion made after the will has been signed and attested is INEFFECTIVE to change to will unless the will is reexecuted with the proper formalities (i.e., newly signed and attested).

Front 86

Components of the Will: Nonprobate Assets Cannot be Disposed of by Will

Back 86

Only property owned by the decedent at death can be disposed of by a will. There are three categories of nonprobate assets:
1. Property passing by contract (e.g., life insurance proceeds, employee benefits);
2. Property passing by right of survivorship; and
3. Property held in trust.

Front 87

Components of the Will: Miscellaneous Construction Problems

Back 87

A bequest of stock does not include an interest in real property, such as stock in a cooperative apartment. A gift of “cash on hand” includes cash in demand deposit accounts.

Front 88

Changes in Beneficiaries and Property After Execution of Will: Lapsed gifts and Anti-Lapse Statutes

Back 88

Generally, a testamentary beneficiary must survive the testator in order to take her gift. A will cannot make a gift to a dead person. If the beneficiary predeceases the testator, her gift lapses.

Front 89

Changes in Beneficiaries and Property After Execution of Will: Lapsed gifts and Anti-Lapse Statutes: New York Anti-Lapse Statute

Back 89

Unless the will provides otherwise, if the will makes a gift to the testator’s ISSUE, BROTHER, OR SISTER, and this beneficiary predeceases the testator leaving issue, the disposition does not lapse but vests in the surviving issue. “Issue” includes adopted children and nonmarital children, as well as adopted-out children specifically named in the will. Stepchildren are not “issue” of the testator; with respect to dispositions to them, the common law lapse rule applies. “Brothers” and “sisters” do not include brothers-in-law and sisters-in-law. The statute applies to a disposition made to issue, brothers, or sisters AS A CLASS, except that no benefit will be conferred upon the surviving issue of an ancestor who died before the execution of the will.

Front 90

Changes in Beneficiaries and Property After Execution of Will: Lapsed gifts and Anti-Lapse Statutes: Lapse in Residuary Gift

Back 90

If the residuary estate is devised to two or more persons and the gift to one of them fials for any reason, that share passes to the other residuary beneficiaries in proportion to their interests in the residue (absent a contrary will provision).

Exception: If the predeceasing residuary beneficiary was within the scope of the anti-lapse statute and left issue who survived the testator, the anti-lapse statute “trumps” the surviving residuary beneficiaries rule, and the issue of the predeceasing beneficiary take her share.

Front 91

Changes in Beneficiaries and Property After Execution of Will: Lapsed Gifts and Anti-Lapse Statutes: Gift Conditioned on Survival Precludes Application of Anti-Lapse Statute

Back 91

A gift in a will conditioned on the beneficiary’s surviving the testator precludes application of the anti-lapse statute.

Front 92

Changes in Beneficiaries and Property After Execution of Will: Ademption

Back 92

A specific bequest is a gift of a specified or identified item of the testator’s property. Under the doctrine of ademption, when SPECIFICALLY bequeathed property (e.g., my sailboat) is not in the testator’s estate at his death, the bequest is adeemed—it fails.

Front 93

Changes in Beneficiaries and Property After Execution of Will: Ademption: Partial Ademption

Back 93

Ademption applies to the portion of property not in the estate; if a portion of the specifically bequeathed property remains in the estate at death, it passes to the specific beneficiary.

Front 94

Changes in Beneficiaries and Property After Execution of Will: Ademption: Doctrine Does Not Apply to General or Demonstrative Dispositions

Back 94

General dispositions (i.e., gifts of a general amount) and demonstrative dispositions (i.e., gifts of a general amount to be paid from specific or identified property) are not adeemed. Other property in the testator’s estate may have to be sold to satisfy general or demonstrative dispositions.

Front 95

Changes in Beneficiaries and Property After Execution of Will: Ademption: Doctrine Does Not Apply to General or Demonstrative Dispositions: Gift of Stock—May be General or Specific

Back 95

A gift of shares of stock in a closely held corporation is presumptively a specific bequest. A gift of shares in a publicly traded corporation is classified as a general legacy in the absence of language indicating a contrary intent (e.g., MY 200 shares).

Note: While a bequest of publicly traded securities may be classified as a general legacy for ademption purposes, it may be classified as a specific legacy for stock splits.

Front 96

Changes in Beneficiaries and Property After Execution of Will: Ademption: Exception to Ademption Doctrine: Change of Form But Not Substance—Ademption Does Not Apply

Back 96

If there is a change of form but not change of substance, ademption does not apply (e.g., where T’s will makes a gift of his interest in a partnership and thereafter the business is incorporated, the beneficiary takes all of T’s interest in the business).

Front 97

Changes in Beneficiaries and Property After Execution of Will: Ademption: Exception to Ademption Doctrine: Conveyance of Incompetent’s Property—Specific Beneficiary Can Trace Proceeds

Back 97

If a person who executes a will that makes specific dispositions later becomes incompetent, and his committee or conservator sells specifically devised assets, the beneficiary of the specific disposition is entitled to receive money or other property into which the proceeds from the sale or transfer may be traced.

Front 98

Changes in Beneficiaries and Property After Execution of Will: Ademption: Exception to Ademption Doctrine: Beneficiary Entitled to Insurance Proceeds

Back 98

A beneficiary is entitled to insurance proceeds PAID AFTER the testator’s death for property specifically bequeathed to the beneficiary and destroyed during the testator’s lifetime. If the specifically devised property is DESTROYED AFTER the testator’s death, the beneficiary is entitled to insurance proceeds.

Front 99

Changes in Beneficiaries and Property After Execution of Will: Ademption: Exception to Ademption Doctrine: Executory Agreement for Conveyance of Specifically Devised Property

Back 99

In New York, an agreement made by the testator to convey any property does not revoke a prior testamentary disposition of the property; but the property passes under the will to beneficiaries, subject to whatever rights were created in the agreement. But ademption applies and the beneficiary takes nothing if the agreement has been executed and the property has been conveyed.

Front 100

Changes in Beneficiaries and Property After Execution of Will: No Exoneration of Liens

Back 100

Liens on specifically bequeathed property are not exonerated (paid off from residue) unless the will directs exoneration. A general direction in the will calling for payment of the testator’s debts is not considered an expression of intent that liens be exonerated. The no-exoneration rule applies where proceeds of any life insurance policy are payable to a named beneficiary. If the insured has borrowed against the value of the policy, the beneficiary takes subject to the lien, with no personal liability. Unless the beneficiary pays off the debt, however, the creditor will foreclose and so the beneficiary is under a practical compulsion to pay.

Front 101

Changes in Beneficiaries and Property After Execution of Will: Specific Bequests of Securities Includes Stock Splits But Not Stock Dividends

Back 101

A specific bequest of stock includes additional shares produced by a stock split after the will is executed and before the testator’s death, but does not include additional shares produced by a stock dividend. A specific legatee is also entitled to all cash and stock dividends and stock splits declared and paid AFTER the testator’s death.

Front 102

Class Gifts: Definitional Problems: Dispositions to “Children”

Back 102

Children by all marriages are included in dispositions to “children,” but stepchildren and grandchildren are not included. Posthumous children are also included, and nonmarital children are presumptively included. A gift to “children per stirpes” means “to my children in equal shares; but if any child dies before the distribution is to be made, his or her descendants shall take that share by representation.”

ADOPTED CHILDREN are presumptively included in a gift by a member of the adoptive family, even if the “children” were adults at the time they were adopted. Adopted-out children are presumptively not included in a gift by a birth relative UNLESS the adoption is by a family member or spouse of a birth parent.

Front 103

Class Gifts: Definitional Problems: Dispositions to “Brothers and Sisters”; “Cousins”

Back 103

Dispositions to “brothers and sisters” include half-brothers and half-sisters. Dispositions to “cousins” presumptively include first cousins only.

Front 104

Class Gifts: Definitional Problems: Dispositions to “Issue” or “Descendants”

Back 104

For wills and trusts executed before September 1, 1992, issue or descendants in equal degree of kinship to their common ancestor take per capita, but if in unequal degree, they take per stirpes, unless a contrary intention is expressed. For wills and trusts executed on or after that date, issue or descendants take per capita at each generation (absent a contrary provision).

Front 105

Class Gifts: Definitional Problems: Dispositions to “Heirs” or “Next of Kin”

Back 105

Absent a contrary provision, a gift to a person’s “heirs,” “heirs at law,” or “next of kin” is to the person’s distributees as defined in the intestacy statutes.

Front 106

Class Gifts: Definitional Problems: Dispositions to “Relatives” or “Family”

Back 106

The terms “relatives” and “family” are construed to mean those who would take the named person’s estate according to the intestacy statutes.

Front 107

Class Gifts: Class Gift Rule—Only Surviving Members Take Gift to Class

Back 107

Under the class gift rule, only class members who survive the testator take the gift. The anti-lapse statute may change the result (e.g., if a gift were to issue, brothers, and sisters of the testator, and a member of the class predeceased the testator leaving issue who survived the testator, the issue would take the deceased beneficiary’s share). To have a class gift, it must be found that the grantor intended to designate as grantees persons fitting a description rather than specific individuals. The key question is whether the grantor was “group-minded.”

Front 108

Class Gifts: When Class Closes—Determining Membership of Class: Rule of Convenience

Back 108

Under the rule of convenience, which applies absent a contrary expression of intent, a class does not close until some member of the class can call for a distribution of his share of the class gift.

Front 109

Class Gifts: When Class Closes—Determining Membership of Class: Outright Gift by Will—Class Closes at Testator’s Death

Back 109

When the testator makes an outright gift to a class, if any members of the class are alive at the testator’s death, the class closes at that time.

Front 110

Class Gifts: When Class Closes—Determining Membership of Class: Postponed Gifts—Class Closes When Some Member Entitled to Distribution

Back 110

For postponed gifts (e.g., corpus payable to class following a life estate in income), the class closes when some class member is entitled to a distribution.

Front 111

Class Gifts: When Class Closes—Determining Membership of Class: Dispositions Subject to Condition of Reaching Given Age

Back 111

For a present gift to a class contingent on members reaching a designated age, the class remains open until the first member of the class reaches the designated age, at which time the class closes. For a future gift to a class contingent on members reaching a designated age, the class remains open until:
1. The preceding estate terminates, and
2. The first class member reaches the designated age.

Front 112

Class Gifts: When Class Closes—Determining Membership of Class: Per Capita Gifts

Back 112

For per capita gifts, courts prefer a rule of construction that immediately determines class membership. Thus, with a per capita gift to “children of B,” those children alive (or in gestation) at the testator’s death take the gift; all others are excluded. If no children of B are in the class at the testator’s death, the gift fails.

Front 113

Class Gifts: Gifts by Implication

Back 113

In NY, a court can find that the testator intended to make a gift even though the will does not contain language that expressly makes the gift; e.g., where it appears that the gift was unintentionally omitted. Thus, a life tenant’s children can take the remainder by implication to correct situations resulting from obvious errors or omissions in wills.

Front 114

Surviving Spouse’s Elective Share: Basic Features: Amount of Elective Share—The Greater of 50,000 or One-Third of Net Estate

Back 114

The elective share is a dollar amount equal to the greater of 50,000 or one-third of the net estate. If the net estate is less than 50,000, the elective share is the entire estate. The actual amount to which the spouse is entitled is the elective share amount minus the value of all outright dispositions passing to the spouse under the will or as testamentary substitutes.

Front 115

Exam Tip

Back 115

In determining the amount of elective share, the size of the surviving spouse’s own estate is irrelevant—even a multimillionaire is entitled to take a full elective share against a deceased spouse’s will.

Front 116

Surviving Spouse’s Elective Share: Basic Features: Right to Election Only if Deceased Spouse was New York Domiciliary

Back 116

The right of election is not available to a spouse of a decedent who was not domiciled in NY at the time of his death (unless such decedent by will elects to have disposition of his property situated in NY governed by the laws of NY). The elective share applies to all of the decedent’s real and personal property wherever located.

Front 117

Surviving Spouse’s Elective Share: “Net Estate” Includes Testamentary Substitutes

Back 117

For wills executed on or after Sept 1, 1966, the net estate against which the elective share applies include most “testamentary substitutes” as well as the deceased spouse’s probate estate. This is sometimes referred to as the “AUGMENTED ESTATE.” The statute lists the following transfers as testamentary substitutes:
1. Irrevocable gifts in excess of the 13,000 annual exclusion made within one year of death
2. Gifts causa mortis
3. Lifetime transfers with retained powers
4. Irrevocable lifetime transfers with a retained life estate made during marriage and on or after Sept 1, 1992,
5. Joint tenancies and tenancies by the entirety created on or after Sept 1, 1966
6. Survivorship bank accounts (to the extent of deposits made on or after Sept 1, 1966, Totten trusts, P.O.D. accounts, and US government bonds
7. Property over which the decedent held a presently exercisable general power of appointment; and
8. Pension plan death benefits—one half if a qualified plan, and all if a nonqualified plan.

Pens

Front 118

Surviving Spouse’s Elective Share: “Net Estate” Includes Testamentary Substitutes: Joint Bank Accounts and Joint Tenancies

Back 118

Joint bank accounts and joint tenancies are included in the net estate TO THE EXTENT OF THE DECEDENT’S CONTRIBUTIONS. If the deceased spouse and third person were joint tenants, the surviving spouse has the burden of showing how much of the consideration for a property’s acquisition was furnished by the deceased spouse. If the husband and wife were joint tenants or tenants by the entirety, the statute raises a conclusion PRESUMPTION that the decedent’s contribution was one-half.

Front 119

Surviving Spouse’s Elective Share: “Net Estate” Includes Testamentary Substitutes: Items that Are Not Testamentary Substitutes

Back 119

The following items are NOT testamentary substitutes and are not included in the elective share:
1. Irrevocable transfers made before marriage
2. Life insurance proceeds
3. Irrevocable gifts made more than one year before death; and
4. A decedent’s interest in a trust created by another person (unless the trust gave the decedent a presently exercisable general power of appointment).

Front 120

Surviving Spouse’s Elective Share: “Net Estate” Includes Testamentary Substitutes: Rights of Third Parties Protected

Back 120

The statute concerning testamentary substitutes and the right of election does not impair the rights of the decedent’s creditors. A corporation or other person may pay or transfer any funds or property to a person otherwise entitled thereto, unless served with a court order enjoining such payment or transfer.

Front 121

Surviving Spouse’s Elective Share: “Net Estate” Includes Testamentary Substitutes: Buy-Sell Agreement is Testamentary Substitute if Amendable and Revocable

Back 121

A buy-sell agreement covering closely held stock that could be terminated by the parties, gives power to make gifts of shares, and gives authority to withdraw from the corporation and to sell shares is a testamentary substitute.

Front 122

Surviving Spouse’s Elective Share: Application to Cases of Intestacy

Back 122

A surviving spouse has a right of election even if the decedent left no will. This is to protect the spouse from the decedent’s depleting his estate by making gifts that would qualify as testamentary substitutes and then dying intestate.

Front 123

Surviving Spouse’s Elective Share: Procedural Rules Governing Election: Must be Made Within Six Months of Letters and Two Years of Death

Back 123

Election must be filed in Surrogate’s Court (with notice to the personal representative) within six months from the issuance of letters of administration, but in no event later than two years after the decedent’s death. Subject to the two-year rule, the time for election may be extended for successive six-month periods. The spouse may be relieved from failing to elect within six months if reasonable cause is shown within 12 months from issuance of the letters and two years after the decedent’s death (unless extended for good cause shown), and the estate is not finally distributed.

Front 124

Surviving Spouse’s Elective Share: Procedural Rules Governing Election: Election Can be Revoked

Back 124

Election can be revoked provided that no adverse rights have intervened and no prejudice is shown to creditors of such spouse or other persons interested in the estate.

Front 125

Surviving Spouse’s Elective Share: Procedural Rules Governing Election: Right of Election Personal to Surviving Spouse

Back 125

The right of election is personal to the surviving spouse. If the surviving spouse dies before making an election, her personal representative cannot exercise the right of election. However, when authorized by court order, the right of election can be exercised by a guardian of the property of an infant spouse, or by a committee or conservator of an incompetent or incapacitated spouse.

Front 126

Surviving Spouse’s Elective Share: Procedural Rules Governing Election: All Beneficiaries and Intestate Distributees Contribute Ratably to Satisfy Elective Share

Back 126

In making up the net elective share, gifts to all beneficiaries under the will, gifts to beneficiaries of testamentary substitutes, and the shares of intestate distributees are reduced on a pro rata basis. This is the result unless the decedent’s will, anticipating a possible election, makes a contrary provision.

Front 127

Surviving Spouse’s Elective Share: Procedural Rules Governing Election: Spouse’s Election Superior to Ex-Spouse’s Claim Under Separation Agreement

Back 127

A surviving spouse’s election is superior to a former spouse’s claim under a separation agreement.

Front 128

Surviving Spouse’s Elective Share: Waiver of Right of Election

Back 128

A spouse may waive the right of election before or after marriage. A waiver need not be supported by consideration. It may be general or it may be as to a specific will or specific testamentary substitute. A waiver must be in writing, signed, and acknowledged before a notary public. A waiver of a testamentary gift must be specific. A waiver in a separation agreement is not valid if the parties are not separated or do not separate indefinitely thereafter.

Front 129

Surviving Spouse’s Elective Share: When Spouse Disqualified from Exercising Right of Election

Back 129

A husband or wife is not a surviving spouse for purposes of the right of election to take a statutory share, inheritance, the right to claim exempt personal property, or the right to recover for wrongful death if:
1. There is a final decree of divorce or annulment recognized as valid in NY
2. The marriage is bigamous, incestuous, or prohibited
3. The surviving spouse procured divorce or annulment in another jurisdiction, not recognized as valid in NY
4. A final decree of separation was rendered against the surviving spouse and recognized as valid in NY
5. The surviving spouse abandoned the deceased spouse, and the abandonment continued until death; or
6. The spouse failed or refused to support the deceased spouse.

The burden of proof is on the party contending that the surviving spouse is disqualified. Neither cruelty nor adultery bars the right of election. However, open and notorious cohabitation with another person constitutes abandonment.

Front 130

Other Restrictions on Power of Testamentary Disposition: Exempt Personal Property

Back 130

Certain items are set aside for the surviving spouse or minor children. Title to “exemptions” vests in the surviving spouse, or if there is no surviving spouse, in the decedent’s minor children (those under age 21). These assets are not deemed part of the decedent’s estate and are not subjet to administration; the decedent has no power of disposition over them. The exemption applies only to the extent that the decedent owned such assets at his death. These assets are exempt from creditors’ claims (except for reasonable funeral expenses). This right to set-aside may be claimed by a spouse’s personal representative. The exemption is in addition to the spouse’s intestate share or testamentary gifts to the spouse.

Front 131

Other Restrictions on Power of Testamentary Disposition: Exempt Personal Property: Specific Exempt Items

Back 131

Included are:
1. Furniture, appliances, and electronics up to 20,000;
2. Books, DVDs, CDs, and software up to 2500;
3. Domestic and farm animals, farm equipment, and tractors aggregating up to 20,000;
4. One car up to 25000 in value; and
5. Money not exceeding 25,000 in value.

Front 132

Other Restrictions on Power of Testamentary Disposition: Community Property Brought to New York: Community Property System

Back 132

In community property states (e.g., California and Texas) property acquired during marriage from salary or wages of either spouse is community property and is owned one-half by each spouse. Separate property consists of property owned by either spouse before marriage and property acquired during marriage by gift, will, or inheritance. All assets on hand whenever the issue is raised are presumptively community property. An asset is presumed to be community property whether title is held in husband’s name, wife’s name, or both of their names. Each spouse has the power of testamentary disposition over only his or her one-half interest in the community property.

Front 133

Other Restrictions on Power of Testamentary Disposition: Community Property Brought to New York: Uniform Disposition of Community Property Rights at Death Act

Back 133

The purpose of the Act is to protect a surviving spouse’s ownership interest in community property. The Act applies to property that was acquired while the married couple was domiciled in a community property state and was classified as community property under the laws of that state. The one-half share that is the property of the decedent is not subject to the surviving spouse’s right to elect against the will.

Front 134

Will Contests: In General

Back 134

The issue in a will contest is whether the document offered for probate is a valid will. In addition to defective execution and valid revocation, grounds for denial of probate include: lack of testamentary capacity, undue influence, fraud, and mistake.

Front 135

Will Contests: Lack of Testamentary Capacity

Back 135

The burden of proof of testamentary capacity is on the will proponent. At the time of executing a will, the testator must have sufficient capacity to:
1. Understand the nature of the act he is doing;
2. Know the nature, condition, and extent of his property;
3. Know the names of, and his relationship to, the natural objects of his bounty; and
4. Understand the scope and meaning of the provisions of his will.

Even if the testator had mental problems, a jury could find that the will was written during a lucid interval. Testamentary capacity must exist AT THE TIME OF EXECUTION of the will. The condition of the testator’s mind at prior or subsequent times is not controlling. A will may be invalid if it is the product of an insane delusion. Drunkenness, eccentricity, or physical infirmity do not constitute incapacity.

Front 136

Will Contests: Undue Influence

Back 136

The burden of proof of undue influence is on the party so contending.

Front 137

Will Contests: Undue Influence: Test

Back 137

The contestant must prove by a fair preponderance of the evidence:
1. Existence and exertion of an influence;
2. Effective operation of such influence as to subvert the mind of the testator at the time of execution of the will; and
3. Execution of a will that would not have been executed but for such influence.

Undue influence is ordinarily proved by circumstantial evidence.

Front 138

Exam Tip

Back 138

For exam purposes, keep in mind that mere pleading, begging, nagging, cajoling, or even threatening, do not constitute undue influence. The free will of the testator must be destroyed; i.e., the testator’s mind must be OVERPOWERED.

Front 139

Will Contests: Undue Influence: Bequest to Person in Confidential Relationship Who Was Involved in Procuring Will

Back 139

If a will makes a gift to a person who was in a confidential relationship with the testator and who was directly or indirectly involved in drafting the will, there is an inference that the gift was the product of undue influence. The existence of a confidential relationship, without more, does not raise an inference of undue influence; there must be evidence that the person was involved in procuring or drafting the will. Once this is shown, the beneficiary must, through means other than merely her own testimony, explain the circumstances and show that the gift was freely made.

Front 140

Will Contests: Undue Influence: Designation of Attorney as Executor—Disclosure to Client Required

Back 140

If an attorney drafts a will that names herself (or her employee) as executor, she must disclose to the client that:
1. Any person can be named executor
2. Executors are entitled to statutory commissions
3. Absent execution of a disclosure acknowledgment, the attorney’s commission as executor will be ONE-HAL OF THE STATUTORY COMMISSION; and
4. The attorney also will be entitled to attorney’s fees for any legal services rendered to the estate.

The client must sign a written acknowledgment. A disclosure statement executed prior to Nov. 16, 2004, that contains disclosures 1, 2, and 4, but not 3 will be deemed in compliance, allowing the attorney-executor full commission. A court may waive the disclosure requirement for good cause shown.

Front 141

Will Contests: Undue Influence: Designation of Attorney as Executor—Disclosure to Client Required: Separate Document Required

Back 141

The disclosure statement must be in a document separate from the will, and may be executed prior to, concurrently with, or subsequently to the will.

Front 142

Will Contests: Fraud

Back 142

A will or particular gift therein is invalid if it is the result of fraud. The elements of fraud are:
1. FALSE REPRESENTATIONS that the speaker knew to be false;
2. Made with the INTENT TO DECEIVE the testator;
3. The testator’s IGNORANCE OF THE FALSITY; and
4. RELIANCE upon such representations, resulting in a different will than he otherwise would have made.

Front 143

Will Contests: Fraud: Fraud in the Execution (Fraud in the Factum)

Back 143

Fraud in the factum is a misrepresentation as to the nature or contents of the instrument (e.g., the testator is told he is signing a power of attorney, but it is his will).

Front 144

Will Contests: Fraud: Fraud in the Inducement

Back 144

In the case of fraud in the inducement, the testator is fraudulently induced into making the will or a particular gift by misrepresentations as to facts that influence his motivation (e.g., the testator is told falsely that a potential beneficiary has cheated him or is dead).

Front 145

Will Contests: Mistake: Wrong Will Signed—Relief Granted

Back 145

Where parties have executed reciprocal wills, relief will be granted if the parties signed the wrong will.

Front 146

Will Contests: Mistake: Mistake in Inducement—No Relief Granted

Back 146

If the mistake involves the reasons the testator had for making the will or gift, and the mistake was not the result of fraud of undue influence, no relief is granted.

Front 147

Will Contests: Mistake: Mistake as to Contents of Will—Relief May be Granted

Back 147

Historically, extrinsic evidence was not admissible to show that a provision was mistakenly omitted from a will, or that a provision contained in the will was not what the testator intended. However, recent decisions have granted relief where there is clear and convincing evidence that a provision was omitted by mistake. On the other hand, where the will is unambiguous, evidence is not admissible to show that the testator made a mistake in describing a beneficiary or the property.

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Will Contests: Mistake: Extrinsic Evidence Admissible to Cure Ambiguity

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A LATENT ambiguity exists when the language of the will results in a misdescription when applied to the facts to which it refers (e.g., two or more persons or things fit the description; or no person or thing fits the description exactly, but two or more persons fit the description in part). Extrinsic evidence, INCLUDING declarations by the testator to her attorney or to third persons, are admissible to cure this ambiguity. A PATENT ambiguity exists when the uncertainty appears on the face of the will. Extrinsic evidence, including statements made by the testator to her attorney, BUT NOT declarations by the testator to third persons, is admissible to cure this type of ambiguity.

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Will Contests: Standing to Contest Will

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Any person who has an economic interest that would be adversely affected by the will’s admission to probate may file objections to the probate of the will or any portion thereof. Thus, an intestate distributee is an interested party, as is a beneficiary under an earlier will. A fiduciary named in an earlier will whose only interest is commissions from an appointment has no standing to object. A fiduciary-legatee has standing to contest. A legatee under a will can object to the appointment of an executor named in the will (even though the amount of the legacy would not be adversely affected by the appointment).

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Will Contests: No-Contest Clauses Are Given Full Effect

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In NY, no-contest clauses are enforced even if there is probable cause for contesting the will. However, the following actions in NY do not result in the forfeiture of a legacy under a no-contest clause:
1. A contest on the ground that the will was forged or revoked by a later will—if the contest is based on probable cause;
2. Objection to the jurisdiction of the court in which the will was offered for probate;
3. A contest brought by a fiduciary on behalf of an infant or incompetent;
4. An action to construe a will’s terms (such action does not challenge the will’s basic validity);
5. A contest filed but subsequently withdrawn; and
6. Discovery to see if grounds to contest the will exist.

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Contracts Relating to Wills: Contract to Make or Not Revoke Will or Trust

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To be enforceable, contracts to make wills or not to revoke wills or trusts must be in writing and signed by the party to be charged therewith. The promisee of an oral promise to bequeath property in exchange for personal services may have a quantum meruit claim for the reasonable value of services rendered. However, if the parties had a relationship in which such services are normally performed without pay (e.g., parent-child, brother-sister), an inference arises that services were intended to be rendered gratuitously.

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Contracts Relating to Wills: Contractual Wills

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A joint will executed on or after Sept.1, 1983, is not contractual unless expressly stated to be contractual. For a joint will executed before Sept 1, 1983, a contract not to revoke may be found from the plain language of the will (e.g., possessive plural pronouns used throughout plus a common plan for dispositions of both parties’ property). Mere execution of reciprocal wills is not evidence of a contract. The rights of beneficiaries of a contractual will are superior to the rights of a surviving spouse to take an elective share.

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Miscellaneous Provisions Relating to Administration of Estates: The Probate Process

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“Probate” is the proceeding in which an instrument is established to be the last will of the decedent, or if no will, to determine intestate distributees.

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Miscellaneous Provisions Relating to Administration of Estates: The Probate Process: Powers and Duties of Personal Representative

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The personal representative administers the estate. All major powers and duties of a trustee are also applicable to the decedent’s personal representative. The Fiduciary Powers Act applies to trustees, executors, and administrators; the strict self-dealing rules apply to all fiduciaries

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Miscellaneous Provisions Relating to Administration of Estates: Miscellaneous Estate Administration Rules: Order of Priority for Appointment as Administrator of Intestate Estate

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Letters of administration must be granted to the heirs of an intestate in the following order of priority:
1. Surviving spouse
2. Children
3. Grandchildren
4. Father or mother
5. Brothers or sisters; and
6. Any other persons who are distributees, with preference being given to the person entitled to the largest share of the estate.

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Miscellaneous Provisions Relating to Administration of Estates: Miscellaneous Estate Administration Rules: What Entities Can Serve as Personal Representative?

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A law firm cannot be named executor. Except for trust companies, a corporation cannot serve as executor unless it is the sole legatee or residuary beneficiary. A nonresident alien can serve as fiduciary in certain circumstances (i.e., she is a relative of the decedent and serves with a co-fiduciary who is a NY resident).

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Miscellaneous Provisions Relating to Administration of Estates: Miscellaneous Estate Administration Rules: Designation of Attorney for Estate Not Binding on Executor

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A will provision designating a lawyer or firm to represent the estate is not binding on the executor.

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Miscellaneous Provisions Relating to Administration of Estates: Miscellaneous Estate Administration Rules: Small Estate Administration by Affidavit

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Small estate administration by affidavit exists for estates of personal property worth 30,000 OR LESS. If the decedent left a will, the person named as executor has first priority to serve as “voluntary administrator.” If there is no will, the order of priority to serve is: spouse, adult child or grandchild, parent, brother or sister, nephew or niece. The voluntary administrator files an affidavit that gives her authority to handle the estate without court order or posting of bond. Small estate administration procedures are not applicable to interests in real property.

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Miscellaneous Provisions Relating to Administration of Estates: Abatement of Legacies

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Abatement is the process of reducing testamentary gifts in cases where the estate assets are insufficient to pay all claims against the estate and satisfy all bequests and devise. If the testator does not set out an order of abatement in the will, the order of abatement is as follows:
1. Property passing by intestacy (expenses and claims are first paid out of property passing by intestate succession; however, if the decedent left a will, there would not be any such property unless all residuary beneficiaries predeceased the testator or the will did not contain a residuary clause);
2. The residuary estate;
3. General dispositions (abated pro rata)
4. Specific dispositions; and
5. Disositions to the surviving spouse that qualify for the estate tax marital deduction.

Within each type of disposition, no distinction is made between real and personal property.

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Exam Tip

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To the extent they can be satisfied from the designated source, DEMONSTRATIVE legacies are treated as specific legacies for abatement purposes. To the extent the fund is insufficient, demonstrative legacies are treated as general legacies for abatement purposes.

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Miscellaneous Provisions Relating to Administration of Estates: Equitable Apportionment of Death Taxes

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Estate taxes are equitably apportioned among all estate beneficiaries (rather than being paid out of the residuary estate) absent a contrary provision. The will may direct payment of taxes from the residuary estate. A general direction in a will to pay all taxes does not apply to taxes imposed on qualified terminable interest property for which a marital deduction was taken in the estate of the first spouse to die. The apportionment rule frees any gifts qualifying for marital or charitable deduction from any reduction on account of death taxes.

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Powers of Appointment: Terminology of Powers—Basic Definitions

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A power of appointment is the authority created in a person (DONEE) to designate, within the limits prescribed by the creator of the power (DONOR), the persons who will take the property and the manner in which they will take it. TAKERS IN DEFAULT OF APPOINTMENT are the persons designated to take the property if the donee fails to effectively exercise her power.

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Powers of Appointment: Terminology of Powers—Basic Definitions: General vs. Special Power of Appointment

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A general power to appointment is one exercisable in favor of the donee herself, her estate, her creditors, or the creditors of her estate. A special power is one exercisable in favor of a specified class of persons that does NOT include the donee, her estate, her creditors, or the creditors of her estate.

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Powers of Appointment: Terminology of Powers—Basic Definitions: Presently Exercisable vs. Testamentary Power

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A presently exercisable power is one exercisable by the donee during her lifetime. (But a presently exercisable power can be exercised by the donee’s will unless such an exercise is expressly prohibited.) A testamentary power is exercisable only by the donee’s will.

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Powers of Appointment: Donee Acts as Donor’s Agent

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The donee is acting as the donor’s agent in appointing the property; thus, when the donee exercises the power, it is deemed to relate back to the donor’s will so that the appointee takes title directly from the donor. Note that a power of appointment is personal to the donee; i.e., she cannot delegate it or assign it. If the donee dies without exercising the power, it terminates.

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Powers of Appointment: General Powers of Appointment: Donee’s Creditors

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A donee’s creditors can reach property subject to a presently exercisable general power. They cannot reach property subject to a testamentary general power unless the donee is also the donor.

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Powers of Appointment: General Powers of Appointment: Failure to Exercise General Power

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If a donee fails to exercise a general power and there is no gift in default, the property passes to the DONEE’S heirs or residuary legatees.

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Powers of Appointment: Special Powers of Appointment: Exclusive vs. Nonexclusive Special Powers

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A special power is EXCLUSIVE if it may be exercised in favor of some objects of the power to the exclusion of others; i.e., the donee may appoint to some objects and not others, or may appoint unequal shares. A special power is NONEXCLUSIVE if it MUST be exercised in favor of ALL of the appointees. Special powers are presumed to be exclusive unless the donor expressly provides otherwise.

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Powers of Appointment: Special Powers of Appointment: Implied Gift Default of Appointment

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If the donee of a special power fails to exercise it and there is no gift in default of appointment, a gift to the objects of the power is implied.

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Powers of Appointment: Special Powers of Appointment: Donee’s Creditors

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The donee’s creditors CANNOT reach property subject to a special power. This is true even if the donee of the special power is also the donor, unless the transfer was in FRAUD of the donor-donee’s creditors.

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Powers of Appointment: Exercise of Powers of Appointment

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Generally, a donor’s directives as to what constitutes proper and effective exercise of a power must be followed. Directions requiring a legally insufficient instrument or excessive formalities may be disregarded.

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Powers of Appointment: Exercise of Powers of Appointment: Any Instrument Can Exercise Power Unless Donor Directs Otherwise

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Unless the donor directs otherwise, a power of appointment can be exercised by any instrument effective to transfer title to property. If the donor makes a power exercisable “only” by deed, it is also exercisable by will, unless exercise by will is expressly excluded.

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Powers of Appointment: Exercise of Powers of Appointment: Residuary Clause May Exercise Power

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In NY, unless the instrument creating the power calls for its exercise by specific reference to that power, a will that disposes of all of the testator’s property operates to exercise all powers of appointment held by the testator even if the will does not make any mention of powers of appointment.

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Powers of Appointment: Exercise of Powers of Appointment: “Blanket” Exercise of Power is Permissible

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If a donee’s will devises “all the rest, residue, and remainder of my property, INCLUDING ANY PROPERTY OVER WHICH I MAY HAVE A POWER OF APPOINTMENT,” this blanket exercise will be given effect unless the donor called for appointment specifically referring to the power.

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Powers of Appointment: Exercise of Powers of Appointment: Exercise by Implication

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If a donee purports to dispose of appointive property as if it were her own, or if a disposition cannot be given meaning unless the donee is treated as having exercised the power, the power will be deemed exercised by implication.

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Powers of Appointment: Exercise of Powers of Appointment: Power Given to Two or More Donees—All Must Exercise

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Unless otherwise provided in the creating instrument, if a power is given to two or more donees, all must unite in its exercise.

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Powers of Appointment: Rules Governing Powers Subject to Consent of Third Persons

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When the consent of another person is required for the valid exercise of a power, the consent must be in writing and signed by that person. When the consent of two or more persons is required to exercise a power, unless the donor expressly provides otherwise, all must consent. If one of these people dies or becomes incompetent, the consent of the survivor is enough.

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Powers of Appointment: Contracts to Appoint: Testamentary Powers—Contract to Appoint Invalid

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The donee of a testamentary power cannot contract to make an appointment. To allow this would defeat the intention of the donor by, in effect, transforming a testamentary power into a presently exercisable power. This prohibition does not apply if the donor and donee are the same person.

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Powers of Appointment: Contracts to Appoint: Presently Exercisable Powers—Contract to Appoint Valid

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The donee of a presently exercisable power can contract to make an appointment, but cannot contract to confer a benefit on a nonobject of a special power.

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Powers of Attorney, Health Care Proxies, and Living Wills: Powers of Attorney

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Powers of attorney are written authorizations for an agent to act on behalf of the author or grantor of the power.

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Powers of Attorney, Health Care Proxies, and Living Wills: Powers of Attorney: Durable Powers of Attorney

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By statute, a power of attorney is “durable”—i.e., it survives the disability or incapacity of the principal—unless it EXPRESSLY PROVIDES that it is terminated by the principal’s incapacity.

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Powers of Attorney, Health Care Proxies, and Living Wills: Powers of Attorney: Springing Powers of Attorney

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A “springing” power of attorney is one that is effective at a future time or upon the occurrence of a specified contingency (e.g., incapacity).

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Powers of Attorney, Health Care Proxies, and Living Wills: Health Care Proxies

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A durable health care power (known as a “health care proxy” in NY) appoints an agent to make health care decisions on behalf of the principal and does not become effective UNTIL THE PRINCIPAL BECOMES INCAPACITATED.

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Powers of Attorney, Health Care Proxies, and Living Wills: Health Care Proxies: Creation and Execution

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Health care proxies must be:
1. IN WRITING,
2. SIGNED by the principal or another at his direction, and
3. WITNESSED by two adults.

The principal is presumed to have capacity to execute the instrument.

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Powers of Attorney, Health Care Proxies, and Living Wills: Health Care Proxies: Revocation

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Generally, a health care proxy can be revoked by notifying either the agent or the principal’s health care provider ORALLY OR IN WRITING.

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Powers of Attorney, Health Care Proxies, and Living Wills: Health Care Proxies: Individuals Eligible to Act as Agent

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A principal can appoint as agent anyone EXCEPT an owner, operator, or employee of a health care facility at which the principal is receiving care, unless that individual is related to the principal.

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Powers of Attorney, Health Care Proxies, and Living Wills: Health Care Proxies: Authority of Agent

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The agent has the authority to make any health care decisions on the principal’s behalf that the principal could have made for himself while having capacity. The authority of the agent is within the discretion of the principal and must be stated in the instrument creating the health care proxy. If specific powers are not expressed or stated in the instrument creating the health care proxy, the agent must act in the principal’s BEST INTEREST. The agent is not subject to civil or criminal liability or to discipline for unprofessional conduct relating to health care decisions, provided she acted in GOOD FAITH.

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Living Wills

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A living will generally states an individual’s desires regarding:
1. Whether to administer, withhold, or withdraw LIFE-SUSTAINING PROCEDURES;
2. Whether to provide, withhold, or withdraw ARTIFICIAL NUTRITION OR HYDRATION; and
3. Whether to provide treatment to ALLEVIATE PAIN.

In NY, a patient’s right to decline treatment is guaranteed by the common law. The patient’s intent to terminate life-sustaining measures may be ORAL OR WRITTEN but must be established by CLEAR AND CONVINCING EVIDENCE.