Will Contests

Question 1

Absent suspicious circumstances, what is it conclusively presumed in regards to mistakes?

Answer 1

That the testator read will and intended its consequences and that the plain meaning of the will won’t be overturned by extrinsic evidence.

Question 2

What is a latent ambiguity in the will?

Answer 2

Mis description or error not evident from looking at the will.

Question 3

Is extrinsic evidence admissible to cover a latent ambiguity in the will?

Answer 3

Yes, to clarify meaning of testator’s words. This evidence includes statements to attorney who prepared will and facts/circumstances evidence.

Question 4

What is a patent ambiguity?

Answer 4

It is an obvious error on the face of the will.

Question 5

Is extrinsic evidence admissible to cover a patent ambiguity in the will?

Answer 5

Yes, extrinsic evidence is admissible, facts and circumstances evidence is admissible.

Question 6

What about precatory language in conditional wills?

Answer 6

Generally the condition has to be satisfied but you could argue that conditional language merely reflects motive or inducement for making will.

Question 7

If a joint will is a contractual will and the survivor breaches the contract by executing later will with inconsistent provisions, what prevails?

Answer 7

The contractual will prevails but probate new will even though will 1 as contract and impose a constructive trust in vapour of intended beneficiaries.

Question 8

Why do we probate new will if there is a prior inconsistent contractual will?

Answer 8

Because we may have other assets in will 2 not in will 1 going to beneficiaries.

Question 9

Can a contractual joint will be revoked?

Answer 9

Yes it can, but agreement between parties while both alive. If one dies, the estate cannot later go and change it up.

Question 10

What is the required testamentary capacity?

Answer 10

A testator must have sufficient capacity to

1) understand nature of the act
2) know nature and approximate value of property
3) know natural object of his bounty; and
4) understand gifts he is making

Question 11

Who has the burden of proving there has been undue influence?

Answer 11

The will contestant

Question 12

What must the will contestant show to prove there has been undue influence?

Answer 12

1) Existence/exertion of influence
2) Effect of influence overpowering of mind/will of testator; and
3) Product of will/gift would not have happened but for that influence.

Question 13

Is the fact that the person was old or unwell and that you had an opportunity to exert influence enough?

Answer 13

No

Question 14

Where can you most certainly show an inference of undue influence?

Answer 14

Where someone makes a gift to one in confidential relationship and person actively preparing will

Question 15

What automatically happens if a bequest has been made to a drafting attorney?

Answer 15

Even if no objection is filed, the surrogate’s court automatically inquiries into whether a bequest to the drafting attorney was voluntarily made. This is Putnam Scrutiny.

Question 16

If an attorney is named as executor in NY what must they do?

Answer 16

Give written disclosure to the testator that:
1) Any person can be named as executor;
2) Executor receives statutory commission and percentage is set by statute; and
3) Attorney is entitled to legal fees for handling estate.
And testator /client must sign the written disclosure in the presence of two witnesses.

Question 17

What if the drafting attorney fails to comply with the statute?

Answer 17

Attorney only receives half the statutory commissions.

Question 18

What is a non contest clause?

Answer 18

If you object to will you get nothing?

Question 19

Are non contest clauses given effect in New York?

Answer 19

Yes they are, even if there is probably cause to challenge a will.

Question 20

Why do we allow non contest clauses?

Answer 20

Because a testator should be permitted to protect his testamentary plan and reputation against post death attack

Question 21

What are exceptions to non-contest clauses?

Answer 21

Where will contest is claiming forgery, it is a jurisdictional challenge, proceeding to construe will.

Question 22

What are the safe harbour provisions for sage harbour clauses?

Answer 22

A person who is considering contesting a will that contains a no contest clause may examine in discovery the following:

1) Person who prepared will;
2) Attesting witnesses;
3) The will proponents; and
4) The nominated executors.

Question 23

Can a no contest clause be drafted to even preclude deposition?

Answer 23

Yes, recently the COA has held that this is OK.

Question 24

What is a Power of attorney?

Answer 24

Written authorization for an agent to act on behalf of grantor of the power.

Question 25

What form can the Power of Attorney take?

Answer 25

It can be general or specific with as many variations as the drafter wishes to contrive.

Question 26

What is a non durable power of attorney?

Answer 26

It an be revoked by operation of law on grantor’s death or incapacity. Remains valid until notice of death or disability is received by attorney in fact.

Question 27

What is a durable power of attorney?

Answer 27

This extends beyond grantor’s incapacity unless it has specific language that it is terminated by the grantor’s incapacity.

Question 28

What is a health care proxy?

Answer 28

Form of power of attorney that makes health care decisions on behalf of grantor. Does not become effective until grantor becomes incapacitated and remains effective despite incapacity.

Question 29

What are the formal requirements of a health care proxy?

Answer 29

In writing, signed by grantor and another at his direction, witnessed by at least two adults. Must state that grantor appeared to execute the proxy free from duress.

Question 30

What is a living will?

Answer 30

Will stating what will happen should they become terminally ill or be in a persistent vegetative state, re whether to give or withhold life sustaining procedures or alleviate pain. NY COA has held that a patient;s right to decline is guaranteed by common law.