Wills ALL.txt

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Wills ALL.txt
2014-12-23 16:42:18
Twiggy924 Wills ALL Hawaii

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  1. Mistake
    • The plain meaning of the will cannot be controverted by extrinsic evidence.
    • Reason: Absent suspicious circumstances, it is conclusively presumed that as to plain meaning that T read the Will and intended its consequences
  2. Latent Ambiguity
    • An error not evident on the face of the Will.
    • Rule: Extrinsic evidence is admissible to clarify the meaning of a latent ambiguity. May show:
    • i) facts and circumstances
    • ii) T's declarations of intent to 3Ps
    • iii) T's statements to atty who drafted the Will
    • If Extrinsic Evidence Fails to Cure the Ambiguity: the gift fails (goes to residuary estate, or passes through intestacy)
  3. Patent Ambiguity
    • An error that is obvious on the face of the will
    • Rule: Can clarify patent ambiguity with extrinsic evidence of:
    • i) facts and circumstances, or
    • ii) T's statements to drafting attorney,
    • but cannot clarify with T's declarations of intent to 3Ps (why: possibility of fraud)
  4. Conditional Wills
    • Will that is operative only if some condition is met (e.g., "I am going to the Bermuda Triangle, and if I don't return I leave all my property to X")
    • Argue both sides on the bar exam:
    • 1. Argue against probate: the Will is conditional b/c the condition was never met, and thus it should be denied probate
    • 2. Argue for probate: T's reference to the condition merely reflects his motive or inducement for making the Will (i.e., that the dangers of life caused him to think of the need for a will). Thus, the will should be probated.
  5. Joint Wills: What are they?
    • Will of 2 people in one document (a really stupid idea)
    • Issue: Whether a joint will was made pursuant to a K that the survivor would not revoke the JW after the death of the other.
    • Rule: K to make a will or not to revoke a will can only be proved by express statements of intent that the will's provisions were intended to be a K between the parties
    • NB: Use of first-person plural possessive pronouns (e.g,. we, our, us) is alone insufficient to show required intent to K
  6. Joint Wills: If there is a valid JW, what happens the survivor breaches (e.g., by executing a later will with inconsistent provisions)?
    • Step 1: Probate the new will, even though will-1 is written as a K
    • Step 2: Impose a constructive trust in favor of the original intended beneficiaries (look to will-1)
  7. Joint Wills: Can the parties revoke the Will?
    Yes, but both (all) parties must revoke while the are alive (i.e., decedent's estate cannot revoke on the decedent's behalf)
  8. Testamentary Capacity***
    • T has required intention to create a will if T:
    • 1. understands the nature of the act (e.g., that he is signing a will, not purchasing a car)
    • 2. knows the extent of his wealth
    • 3. knows the natural objects of his bounty, and
    • 4. can interrelate the first 3 (i.e., that he understands how dispositions of his property will occur)
    • Note: Execution during a "lucid interval" satisfies requirement
  9. Insane Delusion
    T has a persistent belief in supposed facts that are against all evidence, probability, and control and which cause or effect T's testamentary act
  10. Undue Influence**Contestant's burden of proof
    • Will contestant must show:
    • i) existence and exertion of influence,
    • ii) influence overpowers the mind or will of T, and
    • iii) resulting bequest(s) would not have happened but-for the influence
  11. Undue Influence***Weak Evidence of
    • Each of the following situations, alone, is insufficient to constitute undue influence:
    • i) the mere opportunity to exert influence,
    • ii) T's mere susceptibility to influence b/c of age or condition, or
    • iii) mere inequality of dispositions.
    • Note: while each of the foregoing standing alone would be insufficient, their combination with each other or other facts could suffice
  12. Undue Influence***Presumption of
    • Undue influence is presumed if the contestant can show:
    • i) the will makes a bequest to someone in a confidential relationship with T, and
    • ii) that person was active in preparing the will (e.g., drafted the will, or caused the will to be drafted)
    • Note: the Will's proponent can rebut the presumption with clear and convincing evidence
  13. Bequests to Drafting Attorney
    Surrogate's Court automatically asks whether the bequest was voluntarily made ("Putnam Scrutiny")
  14. Appointments of Drafting Attorney(e.g., executor of estate)
    • 1. Drafting attorney who is named as executor must give written disclosure to T that:
    • a. any person can be named executor
    • b. executor receives statutory fee, and
    • b. atty will also be entitled to legal fees, AND
    • 2. T must sign the written disclosure in the presence of 2 witnesses
    • The remedy for the attorney's failure to comply is that he receives only 1/2 of the statutory executor commissions (but can still collect full amount of attorney's fees)
  15. No-Contest ("In Terrorem") Clauses
    • Defined: If any beneficiary under the will objects, he/she gets nothing
    • New York Rule: No-contest clauses are given full effect, even if there was probable cause to challenge the will
    • Exceptions to NY Rule: Challenger can contest:
    • i) forgery, or revocation by subsequent instrument (but not physical act), if challenger has probable cause
    • ii) contest was filed on behalf of an infant or incompetent
    • iii) proceeding brought to construe terms (but Will can expressly override)
    • iv objection to jurisdiction of the court (e.g., T domiciled in a state other than NY)
  16. Rule Against Perpetuities
    • Rule: An interest will violate the RAP unless it must vest, or fail to vest, within 21 years of some life in being (i.e., in existence) at the creation of the interest
    • Deals with: Vesting only (not alienation, not defeasance)
  17. NY Suspension Rule
    • Rule: For an interest to be valid under the rule, there must be identified living persons who could, together, convey a fee simple absolute within some life in being plus 21 years
    • No violation: All persons needed to convey fee simple absolute (i.e., all income beneficiaries, and all remainder beneficiaries) are identified and alive
    • Potential violations: Any beneficiary (whether income or remainder) is unborn or unidentified, or trust is spendthrift (problem for income beneficiaries)
  18. RAP: When does "creation of the interest" occur?
    • R's Last Will & Testament: Death of R
    • R's Revocable Intervivos Trust: Death of R
    • R's Irrevocable Intervivos Trust: Execution of the trust document (when the trust is created
    • E holds a General Intervivos POA: E's exercise of the power
    • E holds any other POA: "relation-back" to R
  19. "Creation of the interest" applied to Powers of Appoint
    • Relation-back doctrine:
    • If POA is a general intervivos POA, creation of the interest occurs at the time the donee (E) exercises the power.
    • But, if the POA is anything other than a general intervivos POA, creation "relates back" to when the donor (R) created the power
    • Significance: Affects who the relevant measuring lives are, and thus whether the Rule is violated
  20. Is "Wait-and-See" available to remedy violations of RAP and the NY Suspension Rule in the context of POA?
    • YES
    • Wait-and-see (also called "second look") is available to reform violations of the RAP or the NY Suspension Rule, but only in cases dealing with POA (it is not available to reform violations of the rule in other contexts, e.g., trusts), and then only for some powers:
    • � Special POA: wait-and-see applies
    • � Gen. testamentary: wait-and-see applies
    • � Gen. intervivos: does NOT apply
  21. RAP and Suspension Rule "Checklist" (*4 rule / 6 rule / 10 rule)
    • 1. *Identify the interest (type of power)
    • 2. Determine date of creation of interest (for "measuring lives")
    • a. E's exercise (gen. intervivos), or
    • b. R's creation (all others)
    • 3. *State the RAP
    • a. Find a LIB, and apply the Rule
    • 4. *Give the NY Suspension Rule:
    • a. NY Spendthrift rule (automatically prevents income beneficiary from assigning interest)
    • b. Unborn beneficiaries? (can't join to convey fee simple absolute)
    • 5. Apply NY Reform Statute? (probably)
    • 6. Apply "second look"?
    • a. apply to special, and gen. testamentary
    • b. cannot apply to gen. intervivos
    • 7. Addressed all interests? (income and remainder?)
  22. Definitions: Donor, Donee, Taker in Default
    • Donor (R, S): creator of the power
    • Donee (E): person to whom the power is given
    • Appointees (A): person in whose favor E exercises POA
    • Taker in default (TID): person who takes property if donee fails to correctly exercise the power
  23. Classification of POA
    • 1. General: E can exercise in favor of himself
    • 2. Special: E cannot appoint in favor of himself
    • a. can only exercise in favor of those designated by R
    • b. "exclusive": E's discretion not limited
    • c. "nonexclusive": E's discretion is limited (may not exclude)
    • 3. Intervivos: E can exercise during lifetime
    • 4. Testamentary: E can exercise only through his Will
  24. Exercising the Power
    • Open-Ended Residuary Clauses
    • 1. Defined: Makes no specific reference to the POA E is attempting to exercise
    • 2. Example: "I give all the rest, residue, and remainder of my estate to my son, Steven"
    • 3. Rule: In NY, an OERC will exercise a POA (whether general, special) unless the terms of the grant require specific reference to the power for the exercise to be effective
  25. Elective Share: Is POA included?
    • Included only if the donee (E) can enjoy the power's benefits during her lifetime. This means that the only power that is included in the augmented estate is:
    • TheGeneral Intervivos Power of Appointment
  26. Can E's Creditors Reach the Power?
    • E's creditors can reach the power only where E can exercise the power in her favor (or her estate's favor). Thus:
    • General intervivos: creditors can reach during E's lifetime
    • General testamentary: creditors can reach but only if E exercises in favor of her estate
    • Special power: creditor's cannot reach the power (whether intervivos or testamentary)
  27. Amount of Surviving Spouse's Elective Share (basic calculation)
    The greater of $50,000 or 1/3 of the "augmented estate"
  28. If T's net probate estate (value of estate after payment of debts, but before payment of estate taxes) is not enough to pay the elective share, what happens?
    Rule: If the elective share can't be satisfied by the net probate estate alone, other beneficiaries under the will or of "testamentary substitutes" contribute pro rata
  29. Augmented Estate
    • Includes both
    • � probate transfers (testamentary and intestate transfers), and
    • � non-probate transfers ("testamentary substitutes" (T-Subs))
  30. Testamentary Substitutes include what? (hint:T-Subs need a LEG UP)
    • The following are included in the augmented estate:
    • T: Totten trusts**
    • S: Survivorship estates** (special rules)
    • L: Lifetime transfers where T retains an interest in the property transfered, e.g.,
    • � revocable
    • � power to invade or consume corpus
    • � life estate
    • E: Employee pension, profit-sharing, or deferred compensation plan
    • � but only 1/2 of a "qualified" plan
    • G: Gifts made w/i one-year of death*
    • � gifts in excess of $13,000
    • � gifts causa mortis (any amount)
    • U: U.S. Bonds and other POD (pay on death) arrangements
    • P: Power of appointment (presently exercisable general power)
    • Rule of thumb: If T retains an interest in the property, it is probably a T-Sub
  31. NON T-Subs (not included in "augmented estate")
    • � Life insurance (unless payable to executor or estate)
    • � Gifts less than $13,000 in any one year
    • � Pre-marriage irrevocable transfers
    • � Irrevocable transfers made more than one year before death
    • Rule of thumb: Not a T-Sub if T does not retain an interest (major exception: life insurance)
  32. Value of T-Sub included in Augmented Estate
    • Generally, the full value of the T-Sub is included in determining the augmented estate, except:
    • 1. Survivorship estates involving T and a TP:
    • a. "consideration-furnished" test applies
    • b. Surviving spouse has burden of proving amount contributed by T
    • 2. Survivorship estates involving T and Surviving Spouse:
    • a. only one-half of the survivorship estate is included in the augmented estate (1/2 in, 1/2 out)
    • b. no "consideration-furnished" test (50% goes to A/E regardless of which spouse funded)
  33. Elective share vs. SS's actual distribution
    SS can only take an elective share if it is larger than the amount received through probate transfers (will, intestate)
  34. If a SS is entitled to the elective share, how do you get that amount from the estate?
    • All beneficiaries whose interests are included in the augmented estate (i.e., probate, intestate, T-Subs) contribute pro rata to the amount needed.
    • Formula: Pro rata percentage to apply to other beneficiaries:
    • 1) Amt needed, divided by
    • 2) divided by the value of bequests to other beneficiaries
    • Note: the other beneficiaries don't have to give back their property, so long as they can pay the value of their share due
  35. Elective Share Trusts: What Are They?
    • 1. What is it? Rather than giving SS her/his elective share outright (lump sum), the elective share amount is held as the corpus of a trust, with the SS named as the income beneficiary.
    • 2. Rule: For estates of decedents DYING on or after September 1, 1994, a life estate (rather than a transfer outright) will not satisfy the SS's elective share requirement.
    • a. date of death controls
    • b. not when the will was executed
    • 3. What to look for:
    • a. elective share situations
    • b. SS receives life (income) interest in trust
    • c. rather than receiving amount outright
  36. Elective Share Trusts: What happens if SS files for Elective Share?
    • Accelerate the remainder
    • � pretend L/T is deceased, and
    • � gift the corpus (outright) to remainder beneficiary
  37. Elective Share Quick Formula
    • 1.Augmented Estate:
    • Net probate estate
    • + T-Subs (full value)
    • + T-Subs w/ SS (1/2 in)
    • + T-Subs w/ 3P ($ furnished)
    • 2. Elective Sh: larger of
    • � AE, or
    • � $50,000
    • 3. Is SS satisfied?
    • Elective Share
    • � Amount rec. from will, intestacy
    • � T-Subs s/ SS (1/2 out)
  38. Waiver of Elective Share: Requirements
    • Writing, signed and acknowledged before a notary public (consideration not needed):
    • Notes:
    • a. can waive before or after marriage
    • b. waiver can apply to any or all wills or T-Subs
    • But remember: a waiver of the right of election is not a disclaimer, renunciation, or release of any testamentary or non-testamentary legacy
  39. Domicile of Decedent Controls
    • Rule: SS can petition for NY Elective share only if the decedent was domiciled in NY
    • Exception: If decedent is not domiciled in NY, SS can claim NY E/S as to real property in NY if T expressly states in his will that the disposition of that property is to be governed by NY law
    • Otherwise, SS can try to claim E/S in state where decedent was domiciled
  40. Exempt Personal Property Set-Aside
    • SS entitled to exempt personal property up to $56,000 in value
    • Includes:
    • � cars ($15k)
    • � furniture, electronic appliances ($10k)
    • � cash allowances ($15k)
    • � farm equipment ($15k)
    • � books, pics, videotapes, etc. ($10k)
    • Bar Exam Tip: Mention that SS has a $56k entitlement to exempt property LAST, then move on to next essay
  41. Circumstances Disqualifying SS from taking Elective Share and Exempt Property (DISMAL)
    • � Divorce (final decree)
    • � Invalid divorce (procured by SS)
    • � Separation decree (rendered against SS)
    • � Marriage void (incest, bigamy)
    • � Abandonment / Lack of Support (by SS)
  42. Probate Estate: What property is included?
    Property that T owned solely in his name at the time of his death, which is disposed of according to the terms of his will or by intestacy
  43. Non-Probate Assets: Defined
    • "Will substitutes"
    • These are interests in property that are NOT subject to disposition under a will or through intestacy
  44. Non-Probate Assets: Examples
    • 1. Property passing by ROS (e.g., joint accounts)
    • 2. Property passing by contract (life insurance)
    • a. note: proceeds become part of probate estate, if payable to T's executor or estate
    • 3. Trust property (terms of trust govern property disposition)
    • 4. Property over which T had a power of appointment
  45. Classification of Gifts
    • 1. Specific Bequests
    • a. "I devise my Timex watch to my son Seth
    • 2. Demonstrative legacies
    • a. a general amount, but T designates a specific source form which the amount is to be paid
    • b. "I bequeath $5MM to my daughter Diane, to be paid from the proceeds of the sale of my GM stock"
    • c. focus on the word "from"
    • 3. General legacies
    • a. a general amount
    • b. "I give the sum of $5MM to my daughter Diane"
    • c. note: absence of specific source of payment, absence of "from"
    • 4. Residuary legacy
    • a. "I give all the rest, residue, and remainder of my estate to X"
    • 5. Intestate Property
    • a. Where partial intestacy results, and the will has no residuary clause
    • b. "I give $5MM to my good friend Frank," where Frank predeceases T
  46. Abatement of Legacies
    • Occurs where the total of claims against the estate and gifts made under a will exceed the assets in the estate
    • Order of abatement: Absent a contrary provision in the will, abatement of gifts occurs in the following order
    • i) residuary estate and intestate property
    • ii) general legacies
    • iii) demonstrative legacies
    • iv) specific bequests
    • v) items that qualify for the federal estate tax marital deduction
  47. Ademption by Extinction
    • Rule: If T makes a specific gift of property, and the property cannot be found or is no longer owned by T at the time of T's death, the gift fails and the specific devisee does not take.
    • Exceptions (listed categories are exhaustive)
    • a. Insurance proceeds for lost or damaged property: Specific devisee takes the insurance proceeds to the extent they are paid after T's death
    • b. Proceeds received under an executory K: Specific devisee takes proceeds paid after T's death
    • c. Proceeds from a guardian or conservator's sale of specifically bequeathed property: Specific devisee may receive money or property purchased from proceeds traceable to the sale or transfer of the adeemed property
    • d. Demonstrative legacies: turn into a general legacy if there is no cash available from the designated source (i.e., other assets will be sold to satisfy the legacy)
  48. No Exoneration of Liens
    • Unlike the common law, NY does not automatically exonerate encumbered property of liens. (i.e., property passes to devisee, still encumbered)
    • For property to be exonerated of encumbrances, the will must expressly and specifically direct that exoneration must occur
    • Note: A "general provision" for the payment of estate debts is not sufficient. The will must be express in its exoneration of specific property
  49. Stock in Publicly-Traded Corporations (category of bequest)
    General rule: Treated as general gifts (no ademption by extinction) Exception: Gifts of "my stock" are treated as specific bequests
  50. Stock in Closely-Held Corporations (category of bequest)
    Treated as specific bequests (can be adeemed by extinction)
  51. Accession of Stock and Securities
    • No ademption by extinction of specifically devised stock (or securities), if the change in property was merely in form (not substance) and is traceable to the stock (or securities)
    • Rule: If T executes a will that devises securities and T then owned securities that meet the description in the will, the devise includes other securities owned by T at death to the extent those other securities were acquired after the will was executed as a result of T's ownership of the described securities.
    • Examples:
    • � stock splits
    • � stock swaps (e.g., take-overs)
  52. "Satisfaction of Legacies"(Ademption by Satisfaction)
    • Wills equivalent of "advancements" in intestate distribution
    • NY Rule: No presumption of satisfaction of legacies in NY. Must prove by:
    • a. contemporaneous writing made at the time of the gift, and
    • b. signed by either the donor or the donee
  53. Incorporation by reference
    • Defined: Testamentary disposition made according to a document extrinsic to the will itself
    • NY Rule: NY does NOT recognize incorporation by reference (all dispositions must be made in a duly executed document (7 requirements))
  54. Acts of Independent Significance
    • Can dispose of all "generically named" property whose existence is independent of any testamentary purpose
    • Examples: I hereby devise to X
    • � "the car possessed at my death"
    • � "everything inside my kitchen cookie jar"
    • � "all items in my living room"
    • Exceptions: Titled documents must be transferred formally. This includes:
    • � Deeds
    • � Stock certificates
    • � Bank account passbooks
  55. NY's "Negative Bequest" Rule
    Words of disinheritance are given full effect, even when the will does not make a complete distribution of the estate (partial intestacy)
  56. T's will devised her engagement ring to her son S, and her residuary estate to her husband H. T's will also provided: "I intentionally make no provision for my daughter D, as she has been a great disappointment to me." T divorced H in 2004 and died in 2007 w/o changing her will. T is survived by S and D. D has no children. Result?
    • 1. S takes engagement ring per will's terms
    • 2. H does not take the residuary estate:
    • a. final divorce decree entered
    • b. all gifts to H are revoked
    • c. residuary estate passes through intestacy
    • 3. D does not take the residuary estate either:
    • a. even though will does not make complete disposition, the words of disinheritance are still effective
    • b. D treated as predeceasing T
    • c. only S can take residuary estate (by intestacy)
    • d. Note: if D had issue, her issue could share in the residuary estate with S through anti-lapse
  57. Testator Marries (impact on will)
    Marriage after execution of a will does not affect the validity of the will, but it may affect dispositions under the will
  58. Testator "Unmarries" (rule, impact, exceptions)
    • 1. Rule: Former spouse treated as predeceasing T if the court renders a FINAL DECREE of divorce, annulment, or separation after execution of the will.
    • a. applies to all transfers, including will substitutes (esp. insurance policies)
    • 2. Impact: All gifts and fiduciary appointments in favor of former spouse are revoked by operation of law
    • a. gifts and appointments pass to residuary estate
    • b. though other bequests remain valid
    • 3. Exceptions: gifts and appointments in favor of former spouse are not revoked where:
    • a. gifts and appointments in favor of former spouse's issue remain valid
    • b. appointment of former spouse as guardian of couple's children remains valid
    • c. all provisions in favor of former spouse are restored if the couple reconcile and remarry
  59. Pretermitted Children
    • 1. Defined: Children born or adopted after T's will is executed
    • 2. Pretermitted children take an intestate share if
    • a. born or adopted after will is executed, and
    • b. not provided for by any settlement (e.g., insurance, will substitutes), and
    • c. not provided for nor mentioned in the will, BUT
    • d. Exception: gets nothing if T makes no provision for any child (placed on par with other children)
    • 3. Source of share: ratably abated from bequest to other children (treated as beneficiary of a class gift)
  60. Revised Uniform Simultaneous Death Act (RUSDA)
    • Must outlive by at least 120 hours (otherwise, treated as predeceasing
    • 1. Not a survivor, if deaths occurs within 120 hours (5 days) of each other
    • 2. Survivorship beyond 120 hours must be shown by clear and convincing evidence
    • 3. 120 hour rule applies to all types of transfers
    • 4. Governing instrument can expressly override 120 hour rule (e.g., can modify (shorted or lengthen) the default period)
  61. RUSDA: Joint Tenants & Tenancy by the Entirety
    • 1. In a simultaneous death situation
    • a. theoretically sever the right of survivorship
    • b. treat the tenants as holding a tenancy in common (no ROS) for purposes of property distribution only.
    • Result: each tenant's estate takes its respective share of the property, and the tenants are treated as strangers to one another
  62. Class Gifts (generally)
    • 1. If a will makes gift to a class of persons, only those members of the class who survive T can share in the gift
    • 2. Class members share equally in the gift made
    • Note: the will can modify when the class closes and the proportion of shares through express language
  63. How to determine the membership of a "class"
    • 1. Rule: Class closes when any member of the class can demand possession (i.e., when a distribution must be made).
    • 2. Outright gift by will: class closes on T's death
    • 3. Life estate followed by remainder to class: class closes on death of the life tenant or income beneficiary
  64. Impact of naming class members individually
    • 1. Naming devisees individually (rather than as a generic group) defeats the gift to the "class"
    • 2. Unless anti-lapse applies, gifts to a predeceasing individually-named beneficiary will lapse
    • a. lapsed gift is not shared by surviving "class" members (after all, class was defeated by individually naming beneficiaries)
    • b. lapsed gift goes to T's residuary estate
  65. Gifts to predeceased beneficiaries (general rule)
    A gift cannot be made to a deceased person
  66. NY Anti-Lapse Statute
    • If a beneficiary dies during T's lifetime, the gift to the predeceasing beneficiary vests in his/her issue if the predeceasing beneficiary:
    • 1. was T's issue or sibling (brother or sister), and
    • 2. left issue who survive T
    • Note: T's will can expressly override the anti-lapse statute�i.e., can condition receipt of the gift on B's survival
  67. NY Anti-Lapse: Children "Adopted Out" of T's family
    • General Rule: An adopted out child has not inheritance rights from birth parents or other members of the birth family.
    • NB: NY Court of Appeals case
    • Facts: T's son was adopted by a non-relative, but T still named the son as beneficiary in T's will. The son predeceased T, and left issue who survived T.
    • Result: Even though the son was adopted out, the anti-lapse statute applied to save the gift because T specifically named the adopted-out son.
  68. Lapse in Residuary Gift: The "Surviving Residuary Beneficiaries" Rule
    • Absent a contrary provision in the will, if T's residuary estate is:
    • 1. devised to two or more people, and
    • 2. the gift to one of them fails or lapses, and
    • 3. the anti-lapse statute does not apply to any devisee
    • THEN the other residuary beneficiaries take the entire residuary estate in proportion to their interests
    • NOTE: Anti-lapse (if it applies) trumps the rule
  69. 2 Ways of Revoking a Will
    • 1. Subsequent testamentary instrument (will or codicil), executed with appropriate formalities
    • 2. Physical act, if there is intent to revoke (no accident) and:
    • a. touches the writing, or
    • b. touches T's signature
  70. Revocation by Implication
    If prior will is not expressly revoked, only those portions that are inconsistent with the subsequent instrument are revoked (partial revocation)
  71. Revocation by Proxy's Physical Act
    • Physical act must touch the writing, and occur
    • 1. at T's request
    • 2. in T's presence, and
    • 3. witnessed by at least 2 Ws
  72. Presumptions re: Revocation of Wills
    • 1. Physical act revocation is presumed, if will is lost and T had possession
    • 2. Physical act revocation is presumed if will is damaged and T had possession
    • 3. Can rebut presumption through admissible evidence
    • Note: There is NO presumed physical revocation, if someone adversely affected by the will (e.g., pretermitted heir) had access to it
  73. The ONLY way T can make changes to his Will:
    T can make changes to his will only by executing a valid (formalized) subsequent instrument�i.e., new will, or codicil
  74. Partial Revocation by Physical Act
    • NOT recognized in NY
    • 1. Any partial revocation is disregarded; will is probated as executed (cf. words added after execution are disregarded)
    • 2. NB: if striking is made before execution, the striking will be given effect
    • a. the changes become part of a validly executed will
  75. No Automatic Revival of Revoked Wills
    • A prior will cannot be "revived" by merely revoking a subsequent (revoking) will or codicil (even if not physically altered)
    • Revival requires all 7 formalities through either:
    • a. Re-execution of the revoked will, or
    • b. Republication by codicil
  76. Dependent Relative Revocation: What is it?
    • Allows a court to disregard (the last) revocation of a will, if that revocation was based on T's mistake of law or fact as to the validity of another disposition
    • In other words: the prior will's revocation depended on the validity of the other disposition)
    • EXAM TIP: Argue for and against DRR (application is NY is unsettled)
  77. Dependent Relative Revocation: Examples
    • 1. Will-2 (or codicil) NOT validly executed, and T physically revokes Will-1
    • a. Result: Physical revocation of Will-1 is disregarded
    • b. Why: T presumably would not have physically revoked, if he knew that Will-2 would be ineffective
    • 2. Hoping to revive Will-1, T shreds Will-2
    • a. Result: Physical revocation of Will-2 is disregarded
    • b. Why: T presumably would not have physically revoked Will-2, if he knew that his act would not revive Will-1
  78. Lost Wills: What must the proponent of a "lost will" do to have the will admitted to probate?
    • Proponent must show 3 things:
    • 1. Lost will was duly executed
    • 2. Lost will was NOT revoked: must
    • a. overcome presumption of revocation by physical act, or
    • b. prove that presumed revocation should be disregarded (e.g., DRR)
    • 3. Lost will's provisions are "clearly and distinctly proven" by a. each of at least two credible witnesses, or
    • b. showing that a copy or draft of the will is true and complete
  79. Impact of Revoking a Codicil
    • � Does NOT revoke the underlying "republished" will
    • � Revokes only those provisions altered by the codicil
    • � Provisions in the underlying will that were not changed by the codicil remain in effect
  80. Witnessed Wills: 7 Requirements
    • 1. T must be at least 18 y/o
    • 2. Signed by T, or by someone at T's direction and in T's presence
    • 3. T's signature is "at the end thereof"
    • 4. T must sign contemporaneously or acknowledge his signature in the presence of each witness
    • 5. T must "publish the will" (i.e., communicate to witnesses that they are witnessing a will, and declaring document to be LWT)
    • 6. At least 2 disinterested witnesses
    • 7. Execution "ceremony" completed within 30 days of when first witness signs (not when T signs)
  81. T's signature by proxy
    • The proxy must
    • 1. sign T's name in T's presence and at T's direction, and
    • 2. sign her name
    • Also:
    • � Proxy signer cannot be one of the 2 required attesting witnesses, and
    • � Must affix her address (but failure to affix won't invalidate will)
  82. What happens if there is writing after T's signature?
    • Ignored, and not treated as part of the will
    • Exception:
    • Entire will is invalid if the matters following T's signature is so material that given effect to only the matters before T's signature would defeat T's testamentary intent
  83. Misc. points regarding execution of a witnessed will
    • � OK if T signs after W, so long as ceremony is contemporaneous
    • � OK if T's signature is barely legible, so long as mark is T's full and intended signature
    • � OK if T does not sign in W's presence, so long as T acknowledges his signature to W
    • � No requirement in NY that each W sign in each other's presence, so long as required number of W's sign within 30 days of each other
    • � OK if a W predeceases T (does not invalidate W's signature)
  84. Attestation Clauses
    • � Recites all the elements of due execution
    • � Prima facie evidence of the facts recited in the clause
    • � Clause corroborates witness testimony; it is NOT substitute for live testimony from a witness
  85. Self-Proving Affidavit: What is it?
    • W's sworn statement in the presence of an attorney that recites all statements the W would make to establish the will's valid execution if W were called to testify in court
    • � SPA is a SUBSTITUTE for W's in court testimony
    • � serves same function as a deposition or interrogatory (i.e., sworn testimony)
  86. Procedure for using a Self-Proving Affidavit
    • � Can be signed at any time after the Will is executed
    • � Will is admissible on the strength of the sworn recitals
    • � If an an intestate distributee objects, proponent must prove compliance with formalities by traditional means (i.e., in-court evidence, testimony)
  87. Interested Witness Statute
    • Will is not voided, but testamentary bequest to interested W is voided unless:
    • 1. at least 2 other disinterested Ws sign, or
    • 2. interested W is an intestate distributee
    • a. takes the smaller of
    • i. intestate portion, or
    • ii. testamentary bequest
  88. Foreign Wills Act
    • Will is admissible to probate in NY if it would be treated as valid under:
    • a. New York law, or
    • b. the law of the state where it wasexecuted, or
    • c. the law of the state where T was domiciled, when Will was executed or at T's death
    • Once admitted to probate, NY law governs construction and application of its provisions
  89. Holographic & Nuncupative Wills
    • 1) Both are VOID in NY
    • 2) Exception: Valid if made by members of the armed services during times of war (whether declared or undeclared)
    • 3) Application of foreign wills: If holograph is executed in a jurisdiction that recognizes it as valid, and T dies in NY, the holograph can be admitted to probate in NY
  90. Can the beneficiaries of a Will sue the drafting attorney for malpractice?
    • NO. Beneficiaries cannot sue because there is no privity of K
    • But, T's estate can sue if the estate itself is harmed (e.g., drafting error causes financial loss, or does not abate taxes)
  91. What is included in "Intestate Property"?
    • 1. Defined: Assets held in the decedent's name alone that does not pass by operation of law or by Will
    • 2. Intestate property is administered in accord with the EPTL
  92. When do the intestacy rules apply?
    • 1. Decedent left no valid will, or
    • 2. When the will does not make a complete distribution of the estate, or
    • 3. Distributee (i.e., person who would inherit under intestate succession) successfully challenges the will, and the will is denied probate
  93. Order of priority for appointment as Administrator
    • 1. Surviving spouse
    • 2. Children
    • 3. Grandchildren
    • 4. Parents
    • 5. Siblings
    • 6. Any other distributees
  94. Distribution:Decedent Survived by Spouse (no children)
    Surviving spouse takes entire estate
  95. Distribution:Decedent Survived by Spouse andchildren
    • 1. Surviving spouse takes $50,000 and 1/2 of remainder
    • 2. Decedent's issue take remaining balance
  96. Distribution:Decedent Survived by Children only
    Passes to children in equal shares
  97. Distribution:Decedent Survived by Issue
    • 1. Property divided per capita at first generational level that has survivors
    • 2. All living issue at first generational level take their share
    • 3. Shares of predeceased issue at that generational level are combined, and then divided equally (per capita) among the takers at the next generational level
  98. General rules in Intestate Distribution
    • 1. Issue eligible to take at a generational level always share per capita
    • 2. In-laws are NOT distributees under the rules of intestate succession (i.e., they always lose)
  99. Distribution:Decedent NOT survived by Spouse or Issue
    • Distribute to (in order):
    • 1. Parents, then
    • 2. All issue of parents (if not survived by parents), who take per capita at each generation
  100. Inheritance Rights:Adopted children and their issue
    • 1. Treated same as natural children of adopting family
    • a. Have full inheritance rights from adopting family (and vice versa)
    • 2. Generally have no inheritance rights from/to birth family. Exception: Adoptive parent is the spouse of a birth parent:
    • a. Adopted child (and issue) can adopt from adopting parent and either birth parent
  101. Inheritance Rights:Children Adopted by a Relative
    • 1. Decedent was child's birth parent: Child can inherit under the birth relationship
    • a. from the decedent, and
    • b. through the decedent (anti-lapse applies)
    • 2. Decedent was adoptive parent:
    • a. Child can inherit under the adoptive relationship from the decedent
  102. Inheritance rights of Nonmarital children: from Mother
    Full inheritance rights from mother and mother's family
  103. Inheritance rights of Nonmarital children: from putative Father
    • Must prove paternity.
    • Methods of proving paternity after putative father's death:
    • 1. In a probate proceeding:
    • a. Paternity shown by clear and convincing evidence (mere support, alone, is not enough), and,
    • b. Father "openly and notoriously" acknowledged child as his own; or
    • 2. DNA test; or
    • 3. If DNA test is rebutted, upon the court's discretion to allow clear and convincing evidence of paternity
  104. Circumstances that will Disqualify a Spouse from taking under intestate succession ("DISMAL")
    • D: Divorce (final decree or annulment)
    • I: Invalid divorce (if procured by surviving spouse)
    • S: Separation decree. Cannot take if
    • � decree is final and rendered against the surviving spouse, or
    • � agreement to separate, and express language waives spouse's rights under EPTL
    • M: Marriage is void (e.g., incestuous, bigamous)
    • AL: Abandonment or lack of support
    • Surviving spouse treated as predeceasing the decedent.
    • NB: NY does NOT have a slayer statute, but WILL impose a constructive trust
  105. Advancements
    • NO PRESUMPTION of advancement under NY law. For advancement to apply, must show:
    • i) contemporaneous writing, made at the time of the gift, and
    • ii) signed by either the donor or donee
  106. Disclaimer by Intestate Distributee
    • Requirements for a valid disclaimer:
    • i) writing, signed and acknowledged before a notary public, AND
    • ii) separate affidavit reciting that no consideration was received for the disclaimer, AND
    • iii) disclaimer stated to be irrevocable, AND
    • iv) disclaimer and affidavit filed with Surrogate's Court w/i 9 months of date of death
    • Treatment: disclaimer treated as predeceasing the decedent
  107. New York Law covering Wills and Estates
    Estates Powers and Trusts Law (EPTL)***