Wills: frequent issues

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Wills: frequent issues
2014-07-22 11:07:47
law of wills
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  1. will execution requirements: in order for a will to be valid, it must meet the formal statutory requirements for a valid will under the New York Estates, Powers, and Trusts Law:
    • - testator at least 18 years old and competent
    • - in writing
    • - signed by the testator in the
    • - presence of witnesses;
    • - signed by at least 2 witnesses; AND
    • - testator must declare that the instrument is a   will (publication)
  2. will execution requirements: writing
    oral wills only permissible when uttered by a member of the armed service on active duty in a time of war
  3. will execution requirements: testator's signature
    - signed at the end of the will. If material following the signature, the material is ignored (will is still valid, but material after sig ignored)

    - signature can be just a mark, like an "X"

    - someone else can sign for the testator at his or her direction
  4. will execution requirements: witness
    - signed or acknowledged before 2 witnesses in their conscious presence

    - competent: disinterested; if a beneficiary, their share is purged, but only that amount past what they would have taken via intestacy.

    - those two witnesses do not need to be present with each other

    only exception: holographic (handwritten by testator) wills if a member of armed forces on active duty in a time of war
  5. will execution formalities: amendments to will=
  6. will execution requirements: any testamentary document that does not revoke a prior will is a codicil and it must adhere to will act requirements
  7. will execution requirements: NY generally liberal in allowing additional documents present at the will signing to be considered a part of the will (i.e. an appendix)
  8. will execution requirements: NY generally does not recognize incorporation by reference. Exception: "pour-over" gifts (testator's property transferred by will into a lifetime trust). This trust document is incorporated by reference
  9. will act requirements: acts of independent significance: provisions that have significance independent of a testator's intent are okay (i.e. a gift to one's "employees")
  10. construction of wills: dispositions (the gifts in a will): residuary clause : definition
    clause that includes any disposition left over after specific, general, and demonstrative dispositions are made.
  11. construction: example of residual clause: "I give all the rest and residue of my property, wheresoever situated, whensoever acquired, and whether known to me or not, to X
  12. construction: residual clause: if a residual estate is to be split among more than one beneficiary, and one of the beneficiaries dies before the testator, the remainder is split amongst the remaining beneficiaries.  Any heirs to the predeceasing beneficiary will not inherit from the testator.
  13. revocation by subsequent instrument: EXAM NOTE: must be able to distinguish a codicil (amendment) to an existing will from a new will. How to distinguish?
    - If subsequent document has a residuary clause, likely a new will and revokes prior will by inconsistency. This is an implied revocation.

    -If subsequent document doesn't have a residuary clause and first document does, subsequent document is likely a codicil.
  14. elective share: surviving spouse entitled to the greater of $50,000 or 1/3 of decedent's net estate.
  15. net estate: the amount left after debts, administration expenses, and funeral expenses, but before taxes.
  16. legacy:  gifts of personal property by will
  17. devise: gift of real property by will
  18. a legacy/bequest and a devise may be made specific, general, demonstrative, residuary
  19. Under New York law, if a residual estate is to be split among more than one beneficiary, and one of the beneficiaries predeceases the testator, then the remainder is to be split amongst the remaining beneficiaries and any heirs to the predeceasing beneficiary will not inherit from the testator.
  20. a pretermitted child is a child born or adopted after a will has been executed and thus is omitted from the will.
  21. If the testator had living children at the time of the execution of the will, the omitted child will share in the disposition to the testator’s other children.
  22.  The omitted child will take the same quality or type of interest as the bequest to the other children. 
  23. If the testator left the existing children a limited provision effectively disinheriting them, such as a bequest of one dollar each, the omitted child will receive an intestate share. 
  24. probate: process by which value of decedent's estate is determined and assets bequeathed after creditors are paid.
  25. probate: will contests: only directly interested parties who stand to benefit financially may contest a will, such beneficiaries under the will or a prior will.
  26. probate: will contests: lawyers and executors are unable to contest the provisions of a will if their only objection is to the financial loss of commissions, unless court approves for good cause
  27. probate: no contest clauses are designed to deter a beneficiary from suing over his share by causing him to lose his share entirely if he does so.
  28. no contest clauses: under NY, won't be enforced if (5):
    1. contest based on an assertion of forgery or assertion that will revoked by a later will IF court finds probable cause for the contest

    2. contest filed by a third party on behalf of an infant or incompetent

    - objection is based on the jurisdiction of the court, as opposed to a challenge to the will's content

    - a proceeding is brought for the construction of the will's terms or

    - a hearing to conduct the prelimenary examiniation of a proponent's witnesses, the person who prepared the will, the nominated executors, and the proponents in a probate proceeding.