Wills Flashcards

Question

Changes in T’s Family After Will Executed Child born after will is executed (pretermitted child).

Answer 1

T had 1 or more kids @ execution – no provision for any kids, afterborn gets nothing Gift to alive kids - afterborn shares in the amount as if a class gift was made Limited provisions to alive kids – afterborn takes intestate share Alive kids get different amounts – add the amts & divide by # of kids (including afterborn) – afterborn gets his share & it comes out of proportionate shares of other kids’ shares. Ex - $100k to daughter A, and $50k to son B. Then C born. Take $150k/3 = $50k for C. Take 2/3 x 50k from A and 1/3 x 50k from B. T had NO other children when Will was executed - afterborn child takes an intestate share. If afterborn is provided for by any settlement – gets nothing in will b/c T considered him é Beware of republication by codicil – if a child is born after the will is executed but before the republication by codicil, the child is not considered pretermitted & is not entitled to statute protection

Answer 2

Specific gift - only that asset can satisfy the gift. Demonstrative legacy - A general amount from a specific source. General legacy - Gift of a general dollar amount. Residuary disposition - “I give all the rest, residue and remainder of my estate to my brother Jim.” Intestate property - If a partial intestacy results because Will was poorly drafted, has no residuary clause or something in residuary clause given to a friend who predeceased so anti-lapse does not apply

Answer 3

Marriage - no effect b/c elective share covers Divorce (final decree) – all gifts & fiduciary appt revoked by operation of law & as if PD & falls to resid. Anti-Lapse does not apply to spouse to allow kids to take her share. Separation decree not enough - even though it’s enough for intestacy & elective share. Ex - if left $20k in will, not revoked but cannot elect for more Does NOT apply to non-probate transfers. Appointment of former spouse as guardian of couple’s children still valid. Couple reconciles & remarries - all provisions in favor of the former spouse are restored.

Answer 4

NY REJECTS “Satisfaction of Legacies” Presumption Rule – only treated as satisfaction is proved by a contemporaneous writing made at the time of the gift and signed by the donor or donee. NY does NOT recognize incorporp. by reference - everything must be duly executed in accordance with 6 requirements. Acts of Independent Sig. - lifetime acts that have their own purpose or motive independent of any testamentary purpose that occur after a will is executed should be given full effect in the distributions made. (car I own at my death, contents of chest, furnishings in my living room) Except for title documents - deeds, stock certificates, bank passbooks.

Answer 5

Gift that normally would lapse if a beneficiary predeceased the T is saved if the deceased beneficiary was T’s issue or brother or sister AND the predeceased beneficiary leaves issue who survives the T. Does not apply if condition precedent – “if he survives me.” If adopted-out child specifically listed as beneficiary in will, adopted-out child’s issue can take under anti-lapse statute. éDOES NOT APPLY TO SPOUSE

Answer 6

If 2 persons die under circumstances such that there is insufficient evidence that they have died otherwise than simultaneously, the property of each is distributed as though he survived. Ex – Mary has 2 children, Sam & Donna. Sam has a son, Sam, Jr. Sam & Mary are killed in a car accident. Life insurance policy says, “to my son Sam, if he survives me, otherwise to Donna.” Donna gets proceeds b/c treated as though Sam predeceased Mary. Ex - Will leaves residuary ½ to Donna & ½ to Sam. Anti-lapse applies to ensure that Sam, Jr. takes Sam’s ½. Jointly Held Property - Property passes as though each co-owner survived but there is no right of survivorship – gets converted to Tenancy in Common Ex – H & W die simultaneously & JT w/ right of survivorship. H has 2 children, A & B, from a previous marriage, & a child w/ W. TIC - A, B, & C each take 1/3 of H’s half and then C takes W’s half.

Answer 7

Surviving Residuary Beneficiaries Rule: When residuary is devised to 2 or more persons & gift to 1 fails/lapses (& anti-lapse does NOT apply), then other residuary beneficiaries take the entire residuary estate, in proportion to their interest in the residue, absent contrary provision in the Will. éAnti-lapse trumps SRB Rule.

Answer 8

Generic class & 1 predeceases T - class members who survive T take (absent contrary provision). Anti-Lapse Trumps this. Beneficiaries named individually & 1 predeceases T – gift falls to the residuary. Ex – “I devise Blackacre to A, B, C, the children of my brother Howard in equal shares.” If C predeceases, share falls to the residuary b/c he was named individually. Rule of convenience - class closes at the time a distribution to the class must be made. ``` Outright gift by Will - the class closes at T’s death (children in womb also take.) Life Estates followed by class gifts - Class closes at death of life tenant or income beneficiary ```

Answer 9

Subsequent testamentary instrument executed w/ appropriate formalities By physical act with intent to revoke By implication - 2 wills & no express revocation – read them together – 2nd will treated as codicil – revokes 1st to extent of inconsistencies BUT 2 wills wholly inconsistent – 1st will revoked by implication By proxy – (1) at T’s request, (2) done in T’s presence, (3) W’ed by 2 people (other than actor) By presumption - when will last seen in T’s control & cannot be found or is found mutilated (can be rebutted) éNO partial revocation by physical act – anything written or crossed out on will after execution is “nugatory” – must execute as new will or codicil

Answer 10

Due execution and Must establish will was not revoked by: (1) overcoming the presumption of revocation that arises from the will’s non production; or (2) prove the revocation should be disregarded because of DRR. All provisions of Will must be clearly & distinctly proved by each of at least 2 credible Ws or by a copy or draft of the Will proved to be true & complete.

Answer 11

Holographic will - written entirely in the testator’s handwriting and signed but not witnessed BUT remember if witnessed then valid Nuncupative will – oral will BOTH VOID in NY - except for armed services during declared or undeclared war (expires one year after discharge) & mariners are sea (expires after 3 years) éTIP - New Jersey DOES recognize holographic Wills so if a NY resident executes a Will in New Jersey and dies in NY the Will is valid under the Foreign Wills Act.\*\*\*

Answer 12

Revoked will cannot be “revived” simply by destroying the later will – revoking codicil does not revoke entire will - provisions in the will that were not changed by the codicil remain in effect. Can only revive by - Re-execution or Republication by codicil \*MAY\* apply Dependent Relative Revocation - allows revocation to be disregarded when premised/conditioned upon, a mistake of law as to the validity of another disposition – i.e. though it would revive Will #1 Effect - disregard the revocation Will #2 & probate it Argue both ways! DRR should only be applied if its use comes close to doing what T intended rather than intestate.

Answer 13

\*\*Burden of proof is on the Will proponent to prove the will was duly executed. Attestation clause is prima facie evidence of facts recited BUT will is no self-proved. Both attesting Ws must testify to the facts nec. to show due execution. 1 W dead, absent, incompetent, or cannot w/ DD be found - testimony of 1 okay No W able to testify - Will proponents must prove signature of Testator & 1 Witness

Answer 14

Will is admissible to probate in NY if validly executed under: New York Law; or Law of the state where it was executed, or Law of the state where T was domiciled, either at time of Will execution or death. éOnce admitted to probate, NEW YORK law governs.

Answer 15

Witnesses sign a sworn affidavit in the presence of a notary public ANY TIME after the will is executed (& attached to Will) that recites all statements they would make if called to testify in court – has the effect of sworn testimony. Will is admissible to probate on strength of the sworn recitals in the affidavit unless an interested party (heir, or legatee under earlier Will) objects à proof of due execution nec. then.

Answer 16

Will beneficiary is attesting W à will is valid but gift void UNLESS at least 3 Ws & the other 2 are disinterested, or interested W would be an intestate distributee if T had died w/o a Will “Whichever is Least” Rule - witness-beneficiary takes the lesser of the bequest under the will or his intestate share. (\*say bequest is void, if it is) W can be named as executor in the Will – does not trigger statute.

Answer 17

18 years old Signed by Testator (or someone at T’s direction & in her presence) – any mark intended to be signature Proxy signature - Must sign her same, cannot be 1 of 2 nec. Ws, affixes address Signature is at end of Will Sign the will or acknowledge earlier signature in presence of each witness Publish the Will (declare to Ws that the document to be their last will and testament) Two attesting witnesses who sign will within 30 days of each other (time starts running when 1st W signs)

Answer 18

Will valid but words beneath signature are ignored UNLESS words after signature so material that to only give effect to above words would defeat intent of T, then entire will invalid.

Answer 19

Surrogate’s Court proceeding in which it is judicially determined that: (1) the decedent died with a validly executed will & his heirs or intestate distributees are determined (to put them on notice of the existence of a Will) AND (2) a personal representative named in the Will – executor - is appointed by the court to administer the decedent’s estate.

Answer 20

Later amendment or supplement to a Will that must be executed with the same will formalities. Revocation of a codicil does not revoke the underlying will.

Answer 21

Child adopted by: New family - no inheritance rights from nat’l parents Spouse of a natural parent - inherit from adopting parent & the natural parent & the deceased parent’s family (only goes down, not up). A relative – inherits under the nat’l relationship only, unless the decedent was the adopting parent, then only inherits under adoptive relationship

Answer 22

Writing, signed & acknowledged. Separate sworn affidavit stating no consideration received for making the disclaimer Must be irrevocable (can’t change your mind after filing). The Will must be filed with the Surrogate’s Court within 9 months after decedent’s death. Issue of distributees/beneficiaries who disclaim can take under anti-lapse statute BUT disclaimer cannot decrease another party’s share (ct. will act as if disclaiming child 1 day after the parent). Cannot disclaim to remain eligible for Medicaid or to avoid federal tax lien.

Answer 23

Full inheritance rights from mother & kin & vice versa. Inherits from father if paternity est. Father married the mother after child’s birth Order of filiation during father’s lifetime Father files a witnessed & acknowledged affidavit of paternity w/ Putative Father Registry After death - paternity est. in probate proceeding by C&C evidence AND the father openly and notoriously acknowledged the child as his own

Answer 24

NY rejects the “advancement presumption” - lifetime gift to a child is not an advance payment of intestate share UNLESS proved by (1) a contemporaneous writing made at the time of the gift that is (2) signed by the donor or the donee. Advancement Calculation - add it to total estate, divide by number of children & subtract amount of advancement from gift to that child. Ex - $30k gift to A. Dad dies leaving $300k to A, B & C. So take $330k/3 = $110k each. B & C each get $110k and the remaining $80k goes to A.

Answer 25

Survived by Spouse, No Children – surviving spouse inherits entire estate Survived by Spouse and Children or children’s issue - spouse takes $50k + ½ of residuary, children take other ½ , unless estate is less than $50k Survived by children only – equal shares to each child Survived by children & issue of predeceased children – by representation, per capita at each generation Parents Issue of parents (siblings) - brothers, sisters, or their issue ½ to maternal grandparents & ½ to paternal (if not living to their children & grandchildren) Great grandchildren of grandparents ½ in equal shares to great-grandchildren on maternal/paternal side Escheat to estate

Answer 26

Final decree of divorce/annulment Invalid divorce by surviving spouse. Separation decree rendered against surviving spouse, only. Sep. agmt – only if specifically waives rts. Marriage is void as incestuous, bigamous, fraud Abandonment or lack of support by surviving spouse é\*\*Treat as though surviving spouse predeceased dead spouse.

Answer 27

surviving spouse children grandchildren father or mother brothers or sisters any other distributee

Answer 28

Step 1 – 1 share each at the 1st generational level at which there are survivors Step 2 – shares of the deceased persons at the first generational level are combined & then divided equally among the takers at the next generational level \*\*persons in the same generation are always going to have equal shares TIP – “At the 1st generational level A is alive so that’s where we make the first division. If each person were alive at that generation they would get 1/3 share so since A is alive she gets her 1/3 share. Dead B & Dead C would each get 1/3 also so their shares are combined to make 2/3 and drop down to their issue in the next generational level are divided equally.”