Wills Rules 4

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Author:
woof686
ID:
27047
Filename:
Wills Rules 4
Updated:
2010-07-16 16:47:11
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Construction
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Construction
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  1. Types of bequests
    Specific

    General: Example: "$100,000 to John."

    Demonstrative: Example: "$100,000 to John from my X account, but if funds are not sufficient, then the rest paid out of general funds."

    Residuary
  2. Incorporation by reference
    Not recognized in NY except in cases of pour-over gifts transferred to inter vivos trusts.
  3. Acts of independent significance
    Only for tangible property and cash. Does not apply to title documents, deeds, stock certificates, or bank passports.

    Can apply to future acts, in addition to acts done prior to execution of will.

    Independent significance: If the testator, the beneficiary, or some third person has some control over the act or event, it may still have independent legal significance if it is unlikely that the testator or other person would perform such act solely for testamentary reasons.

    Example: Will leaves gift to "the man who is my niece’s spouse at the time of my death." The law does not presume that the niece would marry or divorce merely to complete the terms of the will.
  4. Lapse
    NY's anti-lapse statute only protects testator's issue and siblings from lapse, provided they have left issue.

    Where a gift is to an entire class and one member of the class dies, only the surviving class members still take. However, if anti-lapse applies because the predeceased class member was related to the testator, then the issue of the predeceased member also will take.
  5. Abatement
    Estate's funeral expenses, administration expenses, and creditor claims paid in following order from:

    • i) Intestate property;
    • ii) Residuary bequests;
    • iii) General bequests to people other than relatives;
    • iv) General bequests to relatives;
    • v) Specific bequests to people other than relatives;
    • vi) Specific bequests to relatives; and
    • vii) Dispositions to a surviving spouse that qualify for the estate tax marital deduction.
  6. Ademption
    Applies only to specific bequests

    By extinction
    :

    • Substantial change in nature of bequest item = ademption
    • Testator's intent not relevant
    • Bene still entitled to - whatever is left of item, balance of any purchase price still owed, condemnation awards unpaid at death, property acquired from foreclosure of secured interest on specifically devised note.
    • Securities - ademed only if language in will indicates that the gift was specific and not demonstrative.


    By satisfaction:

    Intent of the testator controls.
  7. Ambiguities
    Generally will not disturb plain meaning

    NY does not distinguish btwn patent and latent ambiguities - either can be resolved by extrinsic evidence.

    If ambiguity cannot be resolved, the gift in question becomes part of the residue.

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