Notes--Wills--1 day

By Eugene Stone,2014-01-15 22:53
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Notes--Wills--1 day

    ? Copyright 2006. All rights reserved.



    A. Execution of wills

    i. Reqts (T>18 + signedby T/proxy sign + @endlater words ignored

    unless so mat’l that nec to complete will’s dispos plan + sign in each stW’s presence + public’n + 2 Ws + exec’n cerem w/30 of 1 W sign)

    ii. Proof of wills (attestation clause prima facie of facts stated; self-

    proving affidsub f/live testim unless int’d pty objects)

    iii. Interested W statute (gift benef’y can be Wbut bequest void unless:

    supernumerary, or W w/b distrib’ee if T intestate—W gets lesser of)

    iv. Foreign Wills Act (either: NY law, state of execution, state where T

    domic’d @execution/death; holographic wills can get in under this)

    v. Lawyer’s duty only to client (no privity of K w/other ppl)

    B. Revocation of wills

    i. Valid revocation (either by subseq testam’y instrument or physical act)

    1. Subseq testam’y instrument (2 Ws + approp formalities)

    2. Decisive physical act:

    a. Subseq will’s effect on prior (revocation given effect;

    silentwill2 is codicil & revokes will1 re inconsis

    unless wholly inconsprior revoked by implication)

    b. Changes after execution (only if: new will, or codicil;

    beware ’s pre-execution; no line-item revocations)

    c. Of another person (@T’s request + T presence + 2 Ws)

    d. Presumptions re: revocation (destroyed by phys act if:

    last seen w/T & unfound/mutilated @ death) ii. Revival of revoked wills/codicils (once revokeddead, unless: re-

    execution, republication by codicil, DRRignore revocation if due to

    mistake of law as to validity of another disposition & only if dispos’n

    post-revocation comes closer to T’s intent than intestacy would)

    iii. Proof of lost wills statute (due exec’n + not revoked—rebut presump’n

    + all provision proven by 2 credible Ws/true & complete copy/draft)

    C. Death of benef’y while T alive

    i. Surviving residuary benef’y rule (if gift lapsesother residuary

    isees take in prop’n, BUT Anti-Lapse trumps) dev

    ii. Anti-Lapse Statute (gift won’t lapse if pre-deceasing benef’y was: T’s

    issue/sibling + leaves issue who survive T) iii. USDA (if ppl die w/o suff evid that died non-simaltaneouslyeach’s

    property distrib’d as if survived; no 120-hour rules in NY) iv. Class gifts (gifts to “class” & s/o pre-dies Tsurviving mmbrs take;

    Anti-Lapse trumps; rule of conven, subj to gestation @T’s death)

    D. Intestate succession

    i. Scenarios & rules (W & no kidsW gets estate; W& >1 kid/their stissueW gets 1 $50k + ? balother issue split ? as group; no W &

    no issueall to: parents, issue of parents w/ per capita @ each gen’n)

    1. “Per capita”applies to wills/trusts exec’d post-9/1/92

    ii. Inheritance rts (adopted kidsfull from adopting, none from nat’l

    unless adopted by spouse of nat’l parent—choice of both; adopted-

    outnothing from nat’l parents; non-marital kidsfull from mom &

    vice versa, from dad if: legit’d, filiation while dad alive, dad files affid

    of pat’y, proceed’g shows pat’y by c&c & dad openly acknowledges,

    DNA plus other evid)

    E. Changes in T’s family post-will (T marriesno effect; T divorce/annul

    revokes as if ex pre-died, unless: re-marriage or ex as guardian f/kids; pre-

    termitted kidshares like siblings if: afterborn + unprovided for + not in will,

    & may get intestate shr if will had limited prov’n re siblings)

    F. Reference to Acts & Events outside the will (no incorp by refall m/b signed

    + 2Ws, unless: military/mariner/pourover gift; non-testam actswill given

    effect, unless title docs; non-probate assetsrt survivorship, ppty passing via K, ppty held in trust, POA ppty by decedent)

    G. Problems assoc’d w/ testam gifts

    i. Classific’n & abatement order (intestate prop; residuary dispos’n; gen

    legacy; demonstrative legacy; specific gift; prop w/in marital deduc’n)

    ii. Estate tax paid pro-rata except prop w/ marital/charity deduc’n)

    iii. Gift of encumb’d prop (lien not exonerated unless specifically says to)

    iv. Ademption (specific gift not owned @DODfails unless: casualty

    /exec’y K proceeds pd post-death, or sale by guard’n/conserv’r to

    extent not spent & traceable)

    1. Securities (language is dispositiveposs pronoun “my”=spec

    gift; “give 100 shs”always spec gift if closed, never if publ;

    splitsspec gifts; mergersno effect & gets new stock)

    v. Mistake (plain meaning if not ambig; concl presum’n T read/sign will)

    vi. Ambiguity (latentext evid ok to define, not , meaning; patentext

    ev adm unless re: T’s declarations of intent)

    vii. Conditional wills (cts splitfailed condition vs. motive to make will) viii. Ks relating to wills (m/b via express stmt in will that intent to be K

    b/w parties; revocable if both agree; remedynew will ok, w/ constr

    trust f/old will’s intended benef’s)

    ix. Negative bequests (disinherit words get full effect, as if murf pre-died)

    H. Elective Share

    i. Exempt set-asides (car15k; furniture/appliance/comput10k; 15k

    untouched execpt fun’l exp; animals/famr eq/tractor/lawn tractor

    15k; book/pic/ video/software..1k)

    ii. Rule (spouse gets >of: 50k, or 1/3 net estatepre-tax but post-debts +

    6% f/7 mos post-Letters)

    1. R/e cant be adj’dadd r/e value to pot & elective shr that

    value, unlesswill has choice of law re that r/e)

    2. Testam subs (Totten trust bank acct; Survivorshipconsid rd unless pre-marriage & spouse pd in full; furnished b/w dead/3

    Lifetime transfers w/strings princ/benef or irrevocable w/

    retained life post-9/1/92; ? Emp pension if named benef post-


    9/1/92; Gifts >11k w/in 1 yr DOD; US gov bonds & other pay-

    on-death; POA present over prop)

    3. NOT testam subs (Life ins; Other ? emp pensionnever if

    un’d benef pre-9/1/92; Gift<11k/yr; Pre-marriage irrevoc

    transfer; Irrevoc transfers >1 yr DOD; Transfers w/ retained

    life estate pre-9/1/92)

    iii. Procedural (all other benef contrib pro-rata; filed w/6 mos post-Letters,

    but never >2yrs DOD; waiverwritten + signed + notarized)

    iv. Disqualif’n of spouse (Divorce/annul; Invalid divorce by ex; Sep’n

    decree vs ex; Marriage void; Abandon by ex; Lack support by ex)

    I. Will contests

    i. Testam cap’yunderstand nature + know + value +know bounty +

    understand dispos’n—lucid interval possible)

    ii. Undue inf (infl + effect + but-for no will; atty bequestauto infer

    undue inf; drafter as exec’rwritten: a/o eligible + statute comm’n +

    fees if rep estate, o/w 50% cut)

    iii. No-contest K (fully enforced unlessallege forge/later will revokes +

    prob cause found; b? infant/incomp; construc’n suit; object to jurisd)

    J. POAs (testamall POAs-gen/spec-T held exercised in will unless instrument creating POA requires specific ref to it, Crs cant touch it; presently ex’bl by

    written instr to trustee, can be in will unless precluded, Crs can get gen only)

    K. Fed Estate Tax

    i. Includible (revoc’l trust; Totten trust; qualif pension plan benefits; life rdconsid furn; irrevoc trust w/ retained ins; ? j/t w/h&w; ? j/t w/w/3

    life assets; NOT bypass trustHEMS invadable is not gen POA)

    ii. Charitbl ded’n (m/b eitherannuity trustset amt (5%min initial

    corpus) paybl to ben f/life, or unitrustset % (5%min) valued

    annually paybl to ben f/life)

    iii. Martial ded’n (m/b prop left in form that itll be taxed in W’s estate to

    extent unused during W lifetime; examplesoutright dispos’n,

    QTIPincome pybl to W annually f/life + no other benef during W

    life + election on return)

    iv. Gift tax (11k/donee/yr f/present ints; unlimited exclusion if

    tuition/med pd directly to provider; donor cant retain power to revoke/

     ben; basislifetime get carry-over f/CG, death get fmv@DOD)



    A. Requirements of valid will (and codicil) i. Testator over 18 (for capacity)

    ii. Signed by either

    1. T

    2. Proxy signature by s/o at T’s direction

    a. Required

    i. Signor also signs

    ii. Cannot be a W

    iii. Must affix address, but failure does not

    invalidate will

    iii. At the end of the will

    1. Rulewords after signature ignored (will valid otherwise)

    a. Exceptionentire will valid if words following

    signature are so material that it’s necessary to complete

    the dispositiveplan of the will

    iv. Signs in presence (or acknowledfges previous signature) of each W

    1. Assistance in signingOK as long as it’s T’s volitional act

    2. Legibilityany mark intended as T’s mark is OK

    v. Will “publication” = T must communicate to the Witness that they're

    witnessing a will (not something else)

    vi. Two attesting Ws

    1. Ws need not sing in each other’s nor T’s presence

    2. Exact order (ie, W then T)irrelevant if execution cerermony

    is a contemporaneous transaction

    a. If ceremony is split, and Ws sign, then T later signs

    (even if in presence of same Ws)will denied probate vii. Execution ceremony completed within 30 days nd W must sign within 30 days) 1. Runs from time first W signs (2

    B. Proof of Wills in Probate

    i. Probate” = court proceeding where it is

    1. Judicially determined that the will was validiy executed


    2. Personal representatitgve appointed (if in willexecutor, if


    ii. Burden of proof

    1. Burden is on will proponent (to show execution)

    a. Attestatuion clause = appears b/w T and Ws’ signatrure,

    recties elements of due execution

    i. Effectprima facie evidence of facts recited

    b. Self-proving affifavits = Ws sign sworn affidavit

    reciting all statements they’d make if called to testify.


    i. Can be signed at any time after will executed

    (even same ceremony)

    ii. Effectsubstitiute for live testimony and same

    function as deposiion or interogsatory

    1. Exceptionobjection by interested party

    (heir, legatee of prior will)then formal

    rules of due execution apply iii. Interested W statute

    1. Rulegift beneificary (ie, not naming of executor fir

    compensation) may be a W and never affects will’ validity

    a. EffectW’s bequest void unless either:

    i. Supernumerary rule = there were 2 other

    disinterested Ws


    ii. W would be a distributee(intestate heir) if T

    died without will.

    1. Rule: W gets “whichever is least” of:

    a. Amt in will

    b. Intestate share

iv. Foreign Wills Act

    1. A will is admissible to probate in NY if it was validly executed

    under either

    a. NY law

    b. Law of state of execution, regardless of T’s domicile at



    c. Law of state where T domiciled either at execution or


v. Holographic Willsnot valid in NY

    1. Defined = handwritten, signed, but unwitnessed (in 30 states)

    2. Rulenot valid in NY

    a. Exceptioncan get in if under Foreign Wills Act

vi. Lawyer’s Duty

    1. Runs only to client who contracted for services

    a. So if improperly drafted intended beneficiaries cannot

    sue L for negligence because no privity of K (can't be rd party benficiaires under K law because this aint no 3

    K b/w two parties)


    A. Valid Revocation can only be by either:


    i. Subsequent testamentray instrument, with appropriate formalities

    1. Requirements

    a. Witnessed by 2 Ws

    i. Eg, writing “void” at end is N/G if no 2 Ws (NY

    doenst recognize holographic) and not a

    physical act because it’s too neat (doesn’t touch

    words of the will)


    ii. Physical act (burning, tearing, cutting, cancelling, or other mutilation)

    1. Needs decisive act of revocation (eg, crossing out signature,

    but NOT simply writing “void” at end of will)

    a. Subsequent will’s effect on prior wills

    i. Contains revocation of prior willprior will


    ii. Silent on prior will

    1. Rulelater will is treated as a codicil

    and revokes first only as to inconsistent


    a. Exceptionif later will is wholly

    inconsistenpriorprior will

    revoked by implication

    b. Changes after execution

    i. Only ways allowed:

    1. Write new will

    2. Codicil to existing will

    ii. Not valid:





    1. Changes on the face of will after

    executionwords added to will post-

    execution are disregarded as not part of

    the will

    2. Partial revocations by physical act (eg,

    striking one clause)

    a. Must revoke will in entirety if by

    physical act

    c. Physical act of another person

    i. Requirements

    1. At T’s request

    2. In T’s presence

    3. 2 (other) Ws to the act

    2. Presumptions Regarding Revocation

    a. Rebutable presumption


    i. Will destroyed by physical act if:

    1. Last seen in T’s possession and not

    found after death


    2. Last seen in T’s possession and found

    mutilated after T’s death

    Evidence is admissible to rebut (eg, if T tells s/o that it was

    destroyed by accident in fire, if attorney can’t find it when

    T died)

    B. Revival of Revoked Wills (& Codicils)

    i. General ruleonce revoked, wills are legally dead and cannot be


    1. EX: Will#1 = T gives all to Nephew, b/c hates Daughter. Will#1 then revoked by Will#2 (to N & N1). If T destroys Will#2, he did not therefore revive Will#1all he did was now

    destroy Will#2 and now left without a will unless one of the 3 exceptions applies

    2. Exceptionswhere a revoked will may be revived:

    a. Re-exectuion = T signs again in front of 2 Ws

    b. “Republication by codicil” = T validly executes codicil

    to Will#1 that makes varuous changes

    c. Dependent relative revocation (aka second-best

    solution doctrine)



    NY: This has never been tested, and unlcear if

    exists in NY. One appellate court has used it and

    COA never sanctified it


    applied….but COA has never sanctified it.”

    i. Ruleallows a revocation to be disregarded if

    the revocation was premised upon, condtioned

    upon, or dependent upon, a mistakae of law as

    to the validity of another disposition (eg, that by

    revoking #2 you revived #1)disregard the

    revocation of #2 and #2 is probated (by

    satisfying the Lost Wills Statute, since #2 was


    ii. Limited aplicanbilityDRR should be used

    only when the disposition resulting from

    revocation comes closer to doing what T wanted

    to (but failed to) than an intesttate dirtribution


    1. EX: If Will#2 said “all to O” and T

    revokes #2 b/c does not want to give it to

    ODRR does not apply b/c that intent

    to murf O is independent of his hate for

    D, and to disregard #2’s revocation

    would defeat T’s intent (to murf O),

    even though D would get it by intestacy

    (whom T also hated)

    C. Proof of Lost Wills Statute

    i. Requirements

    1. Prove due execetion

    2. Prove that the will was not revoked

    a. Proponent of “lost will” must overcome presumption of

    reovcsation from its non-production, or that the

    revocation should be disreagarded due to DRR)

    3. All provisions must be proved by either

    a. Each of at least 2 credibel Ws


    b. A copy or draft of the will proved to be true and



    A. Surviving Residuary Benficiaries Rule

    i. Ruleif T’s residuary estate devised to 2 or more people and the

    gift to one of them lapsesother residuary devisees take the entire

    estate, in propertion to their interests in the rsiude

    ii. Anti-Lapse Statute trumps thisMAKE SURE the person for whom

    gift “lapsed” was not T’s issue/sibling (b/c Anti-Lapse may apply)

    B. NY Anti-Lapse Statute


    i. Rulewhen a will benecificariy dies before Tthe gift “lapses”

    unless saved by the Anti-Lapse statute, which names a subsittute

    taker for donee if requirements met

    1. Conditinal giftsif gift fails under its termsno “gift” to lapse

    (ie, to X if surivives T, and X dies first)

    ii. Requirementsdead beneifciary was

    1. T’s issue or sibling


    2. Leaves issue (descendants) who survie T

    C. Uniform Simaltaneous Death Statute (USDA)


    i. Ruleif 2 people die under circumstances such that there is no

    sufficient evidence that they dide other than simaltaneuslyeach’s

    property (which may be subject to clasuses) distributed as though he


    1. EX: M gets insuraance for M1 (kid) and says “to M1 if

    survives me, o/w to M2 (kid). M also has will says “ ? each to

    M1 & M2.” M & M1 die in plane crash. M1 leaves M1a

    a. Ins proceedsM2 gets it b/c of USDA, b/c M’s

    property distributed as if she survived M1

    i. M1’s property is also distributed as if he

    survived M, but his “property” does not include

    the conditional gift b/c it was not met (and

    USDA does not means he met it, only that his

    existing property (pre-crash) distributed as if he

    survived M)

    b. Bequest ? to M2, and ? to M1a under Anti-Lapse

    b/c M1 was M’s issue and M1 left issue

    c. If intestacy (not here)eg, H&W joints tenants

    (survivprship) ? passes under H and other under W

    as if each survivied the other

    NY: Has not adopted the “120-hour” rule which requires sufficient

    evidence of suriving by 120 hours t oavoid the USDA

    D. Class Gifts

    i. Ruleif a will makes class gift to group of people generically

    described as “class” (kids, siblings) and some members predecease Tsurviving members take (TIP: read will as of T’s death)

    1. Anti-Lapse trumps

    a. EX: T says “to my Son’s kids” when S had S1 & S2.

    Later, S3 born. S dies then T dieseach of kids get 1/3

    b/c S was T’s issue, and S left issue

    2. Rule of convenienceclass closes (later-borns excluded) when

    a member can demand distribution

    a. Gestationif kid in gestation at T’s death, can share in

    classcommon law presumes 280-day gestation

    i. EX: T devises “to X’s kids” when X1 & X2

    exist. X3 born later. T dies. Then X4 bornX4

    gets murfed b/c at T’s death X1,2,3 could've

    demanded distribution and they share qually

    (X4 can only share if he was in gestation when

    T died)



    A. When Applicableeither if:

    i. T left no will (or improerly executed one)


    ii. Partial intestacywill makes incomplete distribution of estate


    iii. Will denied probate by successful contest by heir (distrbutee)

    B. Scenarios of Survivors at T’s Death

    i. T survived by spouse and no kids or their issue

    1. Rulespouse gets entire estate

    ii. T survived by spouse and 1 or more kids or their issue (grandkids)

    1. Rulespouse gets

    a. First $50,000 off the top


    b. ? the balance and other issue (as a group) split evenly

    the other ?

    iii. T not survived by spouse nor issue

    1. Order of succession is:

    a. All to surviving parent(s)

    b. All to issue of parents (siblings, and issue of deceased

    siblings, who take per capita at each generation)

    The following levels have yet to be tested:

    c. ? to maternall grandparents or to their kids (uncle) and

    grandkids (cousin) who take per capita at each

    generation, then same thing for ? to paternal

    grandaparents st cousin once d. Great grandkids of granbdparents (1

    removed) ? to each maternal and paternal side, who

    take per capita at each generation

    e. Escheat to NY

    C. How Issue Take

    i. Per Capita at each generation

    1. Steps

    a. Initial division with one share allocated for each line of

    issue at first generational level at which there are takers

    b. All living persons at first generational level take a share

    c. Shares of deceased person at that generational level

    combined and divided equally among takers at next

    generational level in same way

    2. EX: M has 3 kids: 1,2,3. 1 & 2 die, leaving 1a, 2a & 2b. M dies.

    3 alive, and has 3a. Who gets M’s estate = $100,000?

    a. Initival division1/3 for each of 1,2, &3

    b. 3 gets full 1/3 = $33,333

    c. 1 & 2’s combined shares = 2/3, split evenly by 1 & 2’s

    kidseach splits $66,666 and 3a gets nothing


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