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Definitions
Intestate = W/out a will 1. Decedent = Dead person Testate = W/ a will 1. Testator = Dead person w/ a will Administrative Proceeding = A proceeding to appoint a personal representative, also known in NY as an administrator, to administer the estate of a person who dies w/out a will. Probate Proceeding = A proceeding to administer the property of a person who dies w/ a will Probate Assets = Assets held in the decedents name alone that do not pass by operation of law and that which the Executor administers in accordance w/ the decedents will Operation of Law = Property that passes automatically b/c of the way the propertys title is held (e.g. joint property) (not affected by the existence of a will or intestacy) *Issue
1. Definition All persons who have descended from a common ancestor (more than just "children")
2. Points a. Includes those in a direct line (straight down the chain) of inheritance w/ the decedent b. Issue is synonymous w/ descendant Examples children, grandchildren, great-grandchildren
3.
Distributees = Those individuals who inherit property under intestate succession. Beneficiaries = Everybody who receives a bequest (legacy or devise) under a will Residuary Estate = Balance of the Testators estate after all claims, taxes and particular bequests have been distributed (i.e., the rest of the estate).
3. If estate < $50K, the surviving spouse takes everything, regardless of whether there are children or not
Example #2 Hal dies intestate survived by his wife Wilma and three children: Al, Bob (by an earlier marriage) and Carol (by his marriage to Wilma). Hal owned property worth $650K. What distribution? 1. Wilma - $350K [($650K - $50K) / 2] ; first $50K + 1/2 2. Al, Bob & Carol - $100K/each [($650K - $350K) / 3]
Example #4 Winona, a widow, had three children but two of them (Art and Bill) predeceased her. Art had one child and Bill had two children. As indicated by the family tree below, Winona was survived by her daughter Carol, her daughter-in-law Betty, and four grandchildren as her nearest relatives. What distribution? (i) Carol is alive, so that's where we make our first division. If each were alive, each would get 1/3. Carol is alive, so she gets 1/3. (ii) Shares of dead people are combined and then divided (1/3 + 1/3 = 2/3). Drop their share to their issue and divide equally. G1, G2, G3 divide up the 2/3 --> 2/9 each. (iii) In-laws are not intestate distributees (Betty gets nothing). Winona Art G-1 Bill Betty G2 G3 Carol G-4
Distribution: Carol 1/3rd G-1, G-2, G-3 2/9th each G-4 nothing Betty nothing b/c in-laws are not intestate distributees (Even if Bill left a will that left all my property, including any interest I have in my mothers estate, to my wife Betty ; in-laws do not count - not Bill's to convey before W dies) Note: In most states (and FORMERLY in NY (pre-1992)), the distribution is "per stirpes", under which the issue of a deceased child takes the share that her parent would have inherited if living. In the example above, Carol would take 1/3. G-1 would take 1/3 in place of Art; G-2 and G-3 would take Bill's share of 1/6. *** NY RULE: Per Capita at Each Generation - "by representation" is controlling. Exception: A will can override and change the default distribution to "per stirpes" Distribution Per Stirpes 1. Rule The issue of a deceased child takes the share that her parent would have inherited if living. 2. Points a. While NY uses per capita at each generation, a NY residents will can override and change the default distribution to per stirpes.
3.
If only one person at the first generational level died and all have issue, distribution by representation or per stirpes would give you the same result. Example If example #4 was decided in a per stirpes jurisdiction, what would have been the distribution? a. G-1 1/3rd b. G-2 & G-3 1/6th each c. Carol 1/3rd
b.
Example #5 Per Capita at Each Generation May Also Apply if Decedent Had a Will In 1993, Tillie who is single, executed a will that bequeathed $360K to the issue of my brother Bill, and the residuary of her estate to her sister Sue. When the will was executed, Bill had three children, Alice, Carol & Donna. Alice died in 1996, leaving a child Andy. Carol died in 1999, leaving two children, Clyde and Claude. Tillie died in 2004, and her will was admitted to probate. Tillie was survived by her sister Sue; by her niece Donna, and by her three grand-nephews (Andy, Clyde and Claude). Who takes the $360K to Bills issue? Remember: Step 1: Divide the property into as many shares as there are people at the first generational level where there are survivors Step 2: All living persons at the first generational level take a share Step 3: The shares of deceased persons are combined and then divided (i) Bill's issue - Donna is alive, so that's where make first division. ($360K/3) (ii) All living at first level take a share. (iii) Shares of dead people are combined and then divided. ($120K + $120K = $240K ; $240K/3) Tillie Alice Andy Bill Carol Clyde Claude Donna Sue
Distribution: Donna - $120K Andy, Clyde & Claude - $80K each Variations: What if Alice was the only one dead? Alices 1/3rd share drops straight down to Andy What if Carol was the only one dead? Clyde and Claude each take 1/6th What if Donna was the only one dead? Alice and Carol take each What if Alice, Carol and Donna are all dead? Andy, Clyde and Claude take 1/3rd each
c.
maternal side, to great-grandchildren on paternal side. If no great grandchildren on one side, all to great grandchildren on other side. No inheritance beyond great-grandchildren of grandparents. If the nearest kin are great-great-grandchildren of grandparents, or issue of great-grandparents, the estate escheats to the state of NY.
Note Decedents relatives of the half-blood are treated as if they were relatives of the whole blood.
Distribution: Pete 1/3rd Leah, Sam & Susan 2/9th each ("per capita at each generation")
b. Example #7 Same facts, except Sarah (not Granny) died intestate. What distribution of Sarahs estate?
Leah, Sam & Susan each take 1/3rd of Sarahs estate b/c the adopted child (Leah) inherits under the adoptive relationship when the decedent was the adopting parent (Sarah).
acquisition.) With court approval, disclaimer can be made on a persons behalf by a guardian or by a hold of a durable power of attorney or a decedents personal representative. Example #11 1. Example 11A Igor died intestate, survived by his son Scott, his daughter Donna, and two grandchildren (Donnas children) Dick and Jane. Igors estate is valued at $1.5M. Three months after her fathers death, Donna (a partner in a Manhattan law firm) filed w/ the Surrogates Court a document, signed and acknowledged before a notary public that stated, I hereby irrevocably renounce and disclaim all of my right, title and interest in the estate of my late father. In a separate sworn instrument, Donna stated: I have received no consideration for making this disclaimer. a. Valid disclaimer? Yes b/c it satisfies all 4 disclaimer requirements (signed writing, affidavit, irrevocable, and filing). b. What distribution then? Scott receives $750K. Then we act as though Donna predeceased Igor and we drop her share down to Dick and Jane equally. Thus, both Dick and Jane receive $375K. 2. Example 11B Same facts, except now Scott predeceases Igor. Scott is survived by Scott Jr. What distribution then? a. If Donna did not disclaim, what would Scott Jr. receive? ($750K) b. What should theoretically happen in Donna disclaims? We would have a per capita at each generation distribution and Scott Jr., Dick and Jane would each receive 1/3rd ($500K each). c. ** What happens for real (by statute) to avoid an inequitable result? We act as though Donna survived Igor by one day. Then, Scotts drops to Scott Jr. Donnas would drop to Dick and Jane so each get . Igor Scott Scott Jr. Donna (disclaims) Dick Jane
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Attestation Clause 1. Idea An attestation clause appears below the testators signature line and above witnesses signature lines and recites all the elements of due execution. 2. Value of an Attestation Clause It is prima facie evidence of the facts presented 3. Situations Where Useful a. Witness w/ bad memory Probate of a will does not turn on the memory of an attesting witness. b. Hostile witnesses (recalls it was a power of attorney or some other document) Attestation clause can be used to rebut this witness. 4. Point An attestation clause is not legally required in any state 5. Example of an Attestation Clause On the above date, testator declared to us that the foregoing instrument was her will and she asked us to serve as witnesses thereto. She then signed the will in our presence, we being present at the same time. We then signed the will as attesting witnesses in testators presence and in the presence of each other. Self-Proving Affidavit 1. Idea A self-proving affidavit is where witnesses sign a sworn statement in the presence of an attorney that recites all the statements that they would make if they were called to testify in court. It essentially states that all 7 points were satisfied. 2. Justification It recognizes that most probates are harmonious and no one is going to contest the wills validity. 3. Timing The affidavit, which can be signed at anytime after the will is executed, is usually signed at the same time as the will. 4. Substitute for Living Testimony Unlike an attestation clause (which is merely corroborative of witnesses testimony) where you still have to call the witnesses to testify or else prove their signatures; a self-proving affidavit is a *substitute for the live testimony of the witnesses*. The affidavit serves the same function as a deposition or an interrogatory (i.e., it is sworn testimony). 5. Point The will is admissible to probate on the strength of the sworn recitals in the affidavit unless an interested party objects, in which case the formal rules of proof of due execution apply. You must then call the two attesting witnesses to testify. (Interested party is an intestate distributee who is adversely affected by the admission of the will to probate). Examples 1. Example #12 Tammy signed her will in the middle of the page. Immediately following Tammys signature, the will named Tammys friend Ed Smith as executor. Then the two witnesses signatures followed. Is the will admissible to probate, when it was not signed at the end thereof? a. Yes, BUT the words following the signature are not given effect. Here, Ed would not be appointed executor since that direction follow Tammys signature. 2. Example #13 On July 28, Tom took his typewritten will to his friend Wes and said, This is my Will; please sign it. Wes signed the will as a witness, and then Tom signed it. B/c Tom had Parkinsons Disease, Wes held and guided Toms hand as Tom signed; his signature is almost illegible. On August 11 (two weeks later), Tom took the will to Wally and said, This is my will w/ my signature; please sign it. Tom proferred the will to Wally w/ his signature showing; Wally signed on the second witness line. Tom has died; Wes predeceased him. a. Is the will admissible to probate? Yes b. Wes signed before Tom signed the will; is that a problem? No. The exact order of the signatures is not critical as long as the ceremony is contemporaneous. c. Toms signature is barely legible; is that a problem? No. Any mark intended as Toms signature is ok. d. Wes held and guided Toms hand when Tom signed; is that a problem? No b/c it was Toms voluntary act. He was not forced to sign the will. e. Wes and Wally did not sign in each others presence; is that a problem? No. NY does not require that witnesses sign in each other presence. f. Wally signed 14 days after Wes; is that a problem? No as long as the entire ceremony occurs w/in the 30day window starting when the first witness signs. g. Tom didnt sign the will in Wallys presence; is that a problem? No b/c Tom acknowledged his earlier signature. The testator can take the will to the witness, point to the signature, and say, that is my signature and then have the witness sign. 3. Example #14 How can we probate the will if Wes, an attesting witness predeceased Tom? Just have to go through each element of the 7 Point Test.
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General Rule Both holographic wills and nuncupative wills are void in NY 1. Exception Holographic and nuncupative wills are valid for members of the armed forces during declared or undeclared wars (expires one year after discharge) and mariners at sea (expires after 3 years) 2. NY recognizes wills valid in another state - so, holographic wills are acceptable if validly executed in another state (Foreign Wills Act)
Example #18 Tanya wrote and signed a document in her own handwriting that reads: This is my last will. I leave all my property to the American Red Cross. The instrument is not witnessed. 1. Should it be admitted to probate? a. No b/c NY doesnt recognize holographic wills 2. But what if the instrument was entirely in Tanyas handwriting and was witnessed by two witnesses; would it be valid (assuming the 7 point test was satisfied)? a. Now Tanyas will is valid b/c there is no requirement in NY that a will be typewritten.
Lawyer Malpractice
Beneficiaries Lack Standing B/c there is no privity of contract b/t the beneficiaries of a will and the drafting lawyer, they cannot sue for malpractice to recover the amount that they would have taken had the will been properly executed. However, they may sue the drafting attorney to recover the costs of drafting and executing the will. Example #19 Larry Lawyer prepared a will for Tina and supervised the wills execution. Tina signed the will and had to rush back to work. Later that day, Larry had his law assistant and secretary sign as witnesses. On Tinas death, the will is denied probate, and Tinas estate passes by intestacy. Do the intended will beneficiaries have a cause of action against Larry Lawyer for negligence, the recovery being the amount they would have taken had the will been validly executed? No. There is no privity of contract b/t the beneficiaries and the lawyer. The duty only runs to the client who contracted the lawyers services and now he is dead. At best, the estate can bring an action against the drafting attorney for the cost of executing the will.
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Revocation by Implication
Typical Express Revocation Language I hereby revoke all wills heretofore made by me. Example #21 In 2002, Tim executed my last will. In 2005, Tim executed my last will. The 2005 will does not contain language of revocation of the earlier will. What result? To extent possible, you read the two instruments together. 2nd will treated as codicil (amendment) to the 1st will. 2nd only revokes 1st to extent there are inconsistent provisions. (see rules below) If Second Will Contains No Express Revocation Language: 1. If 2nd will is not inconsistent w/ 1st will Read the two wills together and treat the 2nd will as an amendment to the first will 2. If 2nd will is partially inconsistent w/ 1st will Read the two wills together and the 2nd will is treated as an amendment to the 1st will and only revokes the 1st will to the extent that there are inconsistent provisions. 3. If 2nd will is wholly inconsistent w/ 1st will The 1st will is revoked by implication
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Will Found Mutilated After Death Where a will that was last seen in Ts possession or control is found mutilated after Ts death (e.g., torn in two), there is a presumption that T was the one who revoked the will by physical act. General Points 1. Neither presumption arises if the will was last seen in the possession of someone adversely affected by its contents (i.e., person in will #1, no longer in will #2, and will #2 was seen w/ that person) 2. Evidence is admissible to rebut the presumptions (e.g., will left w/ attorney for safekeeping & attorney cant find it; T told witnesses that destruction of will was accidental)
Key Things Tested 1. Words added to a will after it is signed and witnessed are disregarded 2. Partial revocation by physical act is not recognized in NY Examples 1. Example #22 Jackies duly executed will makes a number of general bequests, including: Clause 10 I give the sum of $5K to my nephew Phil. Clause 11 I give the sum of $2K to my niece Victoria. Jackie decided to make some revisions in her will w/out the assistance of an attorney. Using a marking pencil, she deleted Clause 10 in its entirety and struck the $2K in Clause 11. Using a ballpoint pen, she wrote in $5K above the crossed-out $2K and initiated and dated in the margin. Jackie died three years later. What is the effect of the changes on the will? a. Does Victoria take the $5K? i. No b/c the change was not properly witnessed and it therefore disregarded b. Was the gift to Phil validly revoked? i. No b/c partial revocation by physical act is not recognized in NY 2. Example #23 Suppose the interlineations and cross-outs in #22 were made by the testator (Jackie) immediately before she signed the will and the witnesses signed as attesting witnesses. Are the changes valid? i. Yes b/c the changes are now part of the duly executed will
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1. Idea DRR permits a revocation to be disregarded when premised upon, conditioned upon, or dependent upon a
mistake of law as to the validity of another disposition.
2. Effect Disregard the revocation of will #2 (the one that was revoked based on the mistake of law) and permit its
3.
4. 5. 6.
7.
probate. Doctrine of Second Best Point DRR should never be applied unless the disposition that results from disregarding the 2nd revocation comes closer to doing what the testator tried but failed (reviving the 1st will). Bar Exam Tip This doctrine has been applied by one Appellate Division case, but never by the Court of Appeals. If you are given a DRR question on the bar exam, argue it both ways. Note - revoking codicil does not revoke entire will. Provisions of will not changed by codicil remain in effect Examples a. Example #24A The NY courts might apply DRR in this case. Ted revoked will #2 under the mistaken belief that he was reviving will #1. If the court applies DRR, it will disregard the revocation of will #2 and permit its probate. b. Example #24B i. What if the 2003 will said all to my friend Sammy Smith and the other facts were the same? 1. Definitely dont apply DRR - b/c two totally different testamentary schemes. The doctrine shouldnt be applied unless it helps get closer to the testators intent when he tried to revive the 1st will. Here, the testator was trying to revive a will that left everything to Ned. Probating will #2 that left everything to Sammy doesnt not get closer to testators intent (i.e., 2 completely different testamentary schemes - didn't want Sammy to get anything). Therefore, conventional rules of revocation apply and testator in thrust into intestacy. In the end, the detested Delilah takes. a. Teds revocation of the 2003 will (in effect, Ive changed my mind, and I do not want Sammy to take my estate) would be independent of his intent to revive will #1 in favor of nephew Ned. To disregard the revocation of the 2003 will would accomplish nothing Ted didnt want Sam to get anything. ii. Back to facts of #24A. If we disregard the revocation of the 2003 will b/c the court decides to apply DRR, how can we probate that will when Ted has destroyed it? 1. Proof of Lost Wills Statute
Proof of Lost Wills Statute (ripped up will by accident OR drr situation) 1. General Rule To prove a lost will and get it probated the following must occur: a. Due Execution - Due execution (7-point test) must be proved as in any case b. Not Revoked - it must be established that the will was not revoked. The lost will proponent must: i. Overcome the presumption of revocation that arises from the wills non-production; or ii. Prove that the revocation should be disregarded b/c of DRR c. All provisions of the will must be clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete. 2. Example #25 In 2001, Sid executed a will that devised G/A to his sister Mary and the rest of his estate to his wife Sarah. In 2002, Sid executed a codicil to his will: I revoke the gift of G/A to my sister Mary. Instead, I devise G/A to my niece Nell. In 2003, Sid tore up the codicil intending to revoke it and to revive the gift of G/A to Mary under his will. Does Mary take G/A under the 2001 will? a. No. The codicil revoked the gift to Mary of G/A. Tearing up the codicil doesnt revive the gift. The only way to revive that gift is to re-execute the will or do a new codicil re-gifting to Mary. G/A will fall into the residuary. i. Note - revoking codicil does not revoke entire will. Provisions of will not changed by codicil remain in effect
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General Point Anti-lapse statute trumps surviving residuary beneficiaries rule Examples 1. Example 29A Teds will, after making various bequests, provided: I devise all of the rest, residue and remainder of my estate in equal shares to my brother Al, my sister Betty, and my friend Carl. Ted is survived by Al and Betty. Teds friend Carl predeceased him, leaving a son (Carl Jr.) who survived Ted. What distribution? a. Does the anti-lapse statute apply to Carls 1/3rd share of the residuary estate? i. No. The predeceased beneficiary was not the testators issue, brother or sister. Instead, Carl was Teds friend. b. What takes the residuary estate? i. The remainder beneficiaries, Al and Betty, take the entire residuary estate. 2. Example 29B Same facts, except that it was Teds sister Betty who predeceased Ted, leaving a child (Ben) who survived Ted. Al and Carl also survive Ted. Who takes Bettys one-third share of the residuary estate? a. Ben takes Bettys 1/3rd share b/c Betty was the sister of the testator and left issue (Ben) who survived the testator.
Class Gifts
General Idea If a will makes a gift to a group of persons generically described as a defined class (e.g., children, brothers, sisters) and some class members predecease the testator, the class members who survive the testator take (absent contrary provision of the gift.) Rationale Testator was group-minded in making the gift, and wanted this class of persons and no one else to share ownership of the property. Result You look at who is alive at the testators death to determine the takers of a class gift. Rule When Beneficiaries Are Named Individually (Not Really a Class Gift) Lapsed gifts falls into residuary, not to named individuals. Note -- Anti-lapse statute trumps class gift rule. Example #30 1. Example 30A Toms will devises B/A to the children of my brother Howard, and his residuary estate to his wife Wanda. At the time the will is executed in 1999, Howard has two children: Andy and Betty. After the will is executed but before Toms death, Howard has another child, Carl. Andy dies in 2002 survived by Andy Jr. Then, Tom dies in 2003 and two years later in 2005 Howard has another child, Donna. Who owns B/A? Tom Wanda Andy Andy Jr. Does Andy Jr. take a share under the NY anti-lapse statute? i. No. Andy Jr. doesnt take b/c Andy Sr. is not testators issue, brother or sister. Therefore, the antilapse statute doesnt apply. b. Who takes, then? i. Just Betty and Carl (members of class who survive Tom). Example 30B I devise B/A to Andy, Betty and Carl, the children of my brother Howard, in equal shares. [note: naming individually - not as a class] (subject to: possible application of the anti-lapse statute) a. What happens if Andy predeceases Tom? i. Andys 1/3rd share lapses b/c the anti-lapse statute does not apply (Andy Sr. is neither testators issue, brother or sister). However, Andy Sr.s share will fall into the residuary. It doesnt go to Betty and Carl b/c they are named individually in the will. Instead, Andy Sr.s 1/3rd share will pass to Wanda via the residuary clause. a. Howard Betty Carl Donna (after-born)
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Example 30C - Same facts except gift is "to the children of my son Howard." a. What does Andy Jr. take? i. Since the beneficiary, Andy, who predeceased the testator was within the degree of relationship (issue) covered by the anti-lapse statute, and left a child, Andy Jr., who survived the testaor: Andy Jr. now takes under anti-lapse. Andy is issue. Andy leaves issue surviving. (Anti-lapse statute trumps class gift rule).
Rule of Convenience 1. Rule The class if closed (and later-born class members are excluded) at the time a distribution to the class must be made. 2. Justification We close the class in order to determine the minimum share of each class member so a distribution can be made w/out the necessity of asking for a rebate or refund later on. 3. Outright Gift by Will a. Rule The class closes at testators death i. Subject to the gestation principle (presumption 280 days from conception to birth) b. Example #31 Back to facts of #30A. Devise of B/A to the children of my brother Howard. What about Donna (born to Ts brother Howard two years after Ts death)? i. Donna takes nothing. The class closed at Ts death and Donna was born after Ts death. 4. Life Estates a. Rule If there is gift of a life estate or an income interest w/ a remainder to a class of beneficiaries, the class closes at the death of the life tenant or the income beneficiary. b. Example #32 Tims will bequeaths property in trust: Income to my wife, Wilma for life, and on her death, principal to the children of my sister Sue. At Tims death in 1999, Sue has two children: Bonnie and Connie. Then, in 2002, Sue has another child: Kara. Then, Wilma dies in 2003 and her life estate comes to an end. Two years later, in 2005, Sue has another child, Rush. Who is entitled to a share of the trust corpus on the wifes death? Tim Wilma (life estate) Sue Bonnie Connie Kara Rush (after-born)
i. Under the rule of convenience, when does the class close? 1. At the death of the life tenant, Wilma. ii. Does Kara share in the gift? 1. Yes b/c Kara was born before the life tenant (Wilma) died (before class closed). iii. Does Rush share in the gift? 1. No b/c he was born after the life tenant (Wilma) died and the class closed.
Simultaneous Deaths
Uniform Simultaneous Death Act (USDA) If two persons die under the circumstances such that there is insufficient evidence that they have died otherwise than simultaneously, the property of each is distributed as though he or she survived. General Idea If two people die together and there is no proof of who died first, presume that each one outlived the other when figuring out how to distribute the property. (see examples) Example #33 Mary, a widow, is the insured under a $25K life insurance policy that names as beneficiary my son Sam if he survives me; otherwise my daughter Donna. Mary executes a will that leaves her residuary estate one half to my son Sam and one half to my daughter Donna. Mary and Sam are both killed together instantly in a plane crash. Mary is survived by Donna and a grandson, Sam Jr. Who takes the life insurance proceeds? Marys residuary estate? Mary Sam Sam Jr. 1. The $25K life insurance proceeds? Donna
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B/c Mary and Sam died simultaneously there is rebuttable presumption that Sam predeceased Mary. Therefore, the $25K in insurance proceeds go to Donna b/c the words if he survives me trump application of the anti-lapse statute. Marys residuary estate? a. Donna takes her half and the other half goes to Sam Jr. b/c the anti-lapse statute applies.
a.
USDA & Jointly Held Property 1. Rule Property passes as though each co-owner survived. The USDA prevents the operation of the right of survivorship in cases of jointly held property. 2. Idea The property passes as though a tenancy in common was involved, not as a joint tenancy w/ a right of survivorship. 3. Note: Unexplained absence for 3 yrs. (with a dilignet search) --> presumption of death 4. Point Same rule applies for tenants by the entirety as well. 5. Examples a. Example #34 H and W die simultaneously and are joint tenants w/ right of survivorship of a piece of real property. H has 2 children, Al and Bonnie from a prior marriage and a son, Carl, w/ W. W has no other children. What distribution? i. Hs Estate Act as though H survived W and his half of the real property will drop down to his children Al, Bonnie, and Carl. ii. Ws Estate Act as though W survived H and her half of the real property goes to her child, Carl. Example #35 Mother and daughter were both fatally injured in a car accident. The coroners autopsy shows that daughter survived mother by about 10 minutes. Mother has left no will. Does daughter take as mothers intestate distributee? Yes b/c we have proof that the daughter survived her mother. Therefore, the mothers estate passed onto the daughters estate.
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WILLS OUTLINE SUMMER 2007 CHANGES IN TESTATORS FAMILY AFTER WILL IS EXECUTED
Testator Marries After Will is Executed
General Rule In NY, marriage following execution of the will has no effect on the validity of a will but it may effect the gifts and dispositions under the will. Justification NY law provides for a right of election, which provides that one cannot disinherit his spouse.
3. 4. 5. 6. 7. 8.
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General Idea The EPTL gives no protection to children alive when the will was executed. The statute applies only to afterborn and after-adopted children who are not provided for by any settlement and are neither provided for nor mentioned in the will. Is the party "pretermitted" (within meaning of statute)? 1. Is the child born or adopted after Will is executed, and 2. Is the child "unprovided for by any settlement", and 3. Is the child neither provided for nor mentioned in the Will? Policy To make sure that an after-born or after-adopted child inherits somewhat equally w/ its siblings just in case the parents forgot to change their wills. First Section of Statute If the testator had one or more children when the will was executed and: 1. No provision is made for any children, an after-born child inherits nothing (put on equal footing w/ existing children) 2. Will made gifts to the testators existing children, the after-born child shares in the amount to the other children as if a class gift was made 3. It appears that the intention of the testator was to make a limited provision only to the testators children living at the time the will was executed, then the after-born child takes his intestate share Second Section of Statute If the testator had no children when the will was executed, then the after-born child takes his intestate share. General Point The child must be in gestation when testator dies in order to be pretermitted. (reason: frozen embrios) Examples 1. Example #37 a. Example #37A In 2003, Ted executed a will that placed the residue of his estate in trust: Income to my wife Wilma for life, and on her death remainder to my children, Anu and Jaime, in equal shares. In 2005, Ted and Wilma adopted a child Carl. Ted dies, and his 2003 will is admitted to probate. Ted was survived by Wilma and the three children. What distribution? i. What does Carl take? Carl is an after-born child as intended by the statute. Carl then takes the same as his siblings as if a class gift has been made b/c he was not provided for by any settlement, he is not mentioned in the will and his siblings have been mentioned in the will. ii. Where does Carls share come from? His share comes out of the gifts to the other children the same way a class gift would. b. Example #37B What if children are given different amounts? (e.g., I give $100K to my daughter Anu and $50K to my daughter Jaime.) Thereafter, Ted adopts Carl. i. First, add the amounts gifted to the other children together and divide by the total number of children including the after-born child. Here, there is a total of $150K to Anu and Jaime. Divide $150K by the 3 children. This means that Carl gets $50K and his shares comes from the other childrens shares proportionately. c. Example #37C What if children are given nothing by Teds will? i. Carl gets nothing. He is put on equal footing w/ his siblings. d. Example #37D What if the will makes limited provision for testators existing children? (e.g., I give $5 to my children, Anu and Jaime.) Thereafter, Ted adopts Carl i. Carl takes his intestate share. The after-born child (Carl) doesnt lose out just b/c the testator hated his other kids. Carls intestate share comes from other beneficiaries under the will proportionately. 2. ** Example #38 Same facts as #37A except that Ted had taken out a $25K life insurance policy naming Carl as primary beneficiary. Does Carl take a share as a pretermitted child? a. No. One of the prerequisites for the application of the pretermitted child statute is that the child not be provided for by any other settlement. Here, the life insurance policy naming Carl as primary beneficiary is another settlement. Note that is doesnt matter how much the policy is for. All that matters is that the parent was thinking about the kid. 3. Example #39 Suppose that Ted had no children at the time the will was executed and then adopts Carl? a. The conditions to the statutes operation are the same. However, the result is different. The after-born or after-adopted child takes his intestate share. Other beneficiaries are going to get screwed b/c they will have to kick some of their money back to the after-born.
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WILLS OUTLINE SUMMER 2007 REFERENCE TO FACTS AND EVENTS OUTSIDE OF THE WILL
Lifetime Gift by Testator to Beneficiary Satisfaction of Legacies (wills exists)
Common Law A lifetime gift to a beneficiary named in a donors will (executed before the gift was made) was presumptively in partial or total satisfaction of the legacy, to be applied against the amount to which the beneficiary was entitled under the will. New York 1. Rule NY has rejected the satisfaction of legacies presumption by statute. In NY, such gift is not treated as a satisfaction of legacy unless proved by: a. Contemporaneous writing made at the time of the gift, and b. It is signed by the donor or the donee 2. Example #39 Tom wrote a will that made a $25K bequest to his niece Nell. Thereafter, Tom gave Nell $10K cash, telling her (in the presence of a priest, a bishop and a rabbi): I want you to know that this is a down-payment on the legacy I have given you in my will. Tom died two years later. Should the $10K gift be treated as a partial satisfaction of Nells legacy? a. No. This is not a satisfaction of legacy b/c there is no signed, contemporaneous writing. Therefore, Nell takes the entire $25K bequest in Toms will.
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2. 3.
Does Sara take the Picasso? a. Yes b/c Tom moving the painting from his den to living room was an act of independent significance. Would the result be the same for a gift of the contents of my sea chest? a. Yes
Non-Probate Assets
[Probate Estate Property that a decedent owned solely in his name at the time of the death is disposed of pursuant to the terms of the will and is referred to as the probate estate.] General Idea Non-probate assets are interests in property that are not subject to the disposition under the will and therefore are not part of the probate estate. Major Types of Non-Probate Assets 1. Property passing by right of survivorship (e.g., bank account, joint stock account, etc.) 2. Property passing by contract (e.g., life insurance policy, employee benefits payable to a beneficiary other than the decedent or decedents estate. If paid to the insureds executor or insureds estate, it becomes a probate asset.) 3. Property held in trust (including revocable trusts) 4. Property over which decedent held a power of appointment Example #42 T has a $50K Aetna life insurance policy that names Bill Bates as beneficiary. T dies leaving a will that provides: I direct that the proceeds of my Aetna life insurance policy be paid to my sister Ann. Who takes the $50K life insurance policy proceeds? It passes to the designated beneficiary Bill Bates. The provision in the will instructing the executor to pay the proceeds to Ann is ineffective w/ respect to non-probate property.
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Just Debts Clauses General provisions in the will for the payment of debts do not exonerate liens on specifically devises property. Must be specific. Example #44 Tillies will includes the following clauses; Clause 1 I direct that my executor pay all of my just debts out of my residuary estate as soon after my death as may be practicable. Clause 2 I devise B/A, my farm in Mohawk County, to my sister Joan. Clause 3 I devise my residuary estate to my sister Sue. 1. At Tillies death, B/A is subject to a mortgage lien securing a $12K note. Joan demands that Tillies executor pay off the loan so that B/A will pass to her free of the lien. Is Joan entitled to have the lien exonerated? a. No, Joan is not entitled to exoneration of the lien on B/A b/c the will did not specifically direct the executor to exonerate the lien on B/A. Joan takes property subj. to note and takes exactly what Tillie owned. But how about that clause 1 of the will (just debts clause) directing payment of all of my just debts as soon after my death as may be practicable? a. Still no exoneration b/c general provisions in the will for the payment of debts do no exonerate liens on specifically devised property.
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3. Example #47A Ted executed a will that provided: I devise G/A to my friend Fred. I devise B/A to my brother
Ben. T enters into a contract for the sale of B/A to Price. The contract is still executory at Teds death. G/A is taken by eminent domain by the NY Thruway Authority. Ted deposits the $75K condemnation award in a bank account whose balance at Teds death (w/ interest) is $78K. What distribution? a. B/A (executory contract for sale) i. If contract still executory at Ts death Ben is going to take any contract proceeds paid after testators death. ii. If contract was fully performed on April 1 and T died on April 4 Ben takes nothing b/c the executory contract rule only applies to proceeds paid after death. b. G/A (taken by eminent domain) Ademption applies and Fred gets nothing. The reason the asset is not in the estate is irrelevant (identity theory). Example #47B Suppose, instead, that T became incapacitated, and Ts conservator sold G/A (devised to Fred) to raise funds for Ts care. Is Fred entitled to the proceeds from the sale of G/A? a. Yes, but only to the extent that the proceeds can be traced and are not spent.
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2. 3. 4. 5.
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for every two shares of Tracor. Tess died in 2005 owning 500 shares of IBM but no Tracor stock. Does ademption apply? a. Ademption does not apply. This is a change in form not substance. Even though this is a specific gift and specific gifts normally adeem, the IBM stock is directly traceable to the Tracor stock. Therefore, Nora would take the 500 shares of IBM stock.
d. NOT allowed - Testators declarations of intent to a 3rd person 3. Example #52 Tinas will provided: I give the sum of twenty-five dollars ($25K) to my brother Bill.
a. Need to look to extrinsic evidence to determine how much the testator was trying to gift to Bill. Precatory Language 1. Idea Precatory language is language of mere hope or desire (e.g., I wish or I hope or I desire) 2. Rule Testator must use definitive language to bequeath gifts. a. Precatory language does not impose mandatory obligation.
Conditional Wills
Example #55 Tom duly executed a will: I am going on a mountain-climbing journey to the Himalayas. If anything happens to me on the trip, I leave all of my property to my good friends, Kara and Rush in equal shares. Tom climbed Mt. Everest that summer, returned from the trip in July, and died three years later w/out having changed his will, which is found in his desk drawer. Do Kara and Rush take under the will? 1. Argument #1 This is a conditional will, meaning that probate would be denied b/c the condition did not occur (i.e., nothing happened to Tom on his trip).
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2. Argument #2 Toms reference to the trip merely reflects the motive or inducement for making a will (i.e., the
dangers he faced caused him to think of the possibility of death and the need for a will). Bar Exam Tip Argue conditional wills both ways
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i. ** Treat Nancy as if she pre-deceased ; But, if Nancy had children, they would take one half as issue of Nancy via the anti-lapse statute since it was only Nancy that was disinherited.
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Testamentary Substitutes
General Idea If the elective share applied only to the probate estate (i.e., property owned at death and passing by will or intestacy), a person intent on disinheriting his or her spouse could make non-probate transfers (revocable trusts, joint bank accounts, etc) in favor of others, and thereby defeat the policy and protection of the elective share statute. General Rule -- To prevent this, the elective share applies to property owned at death and the following testamentary substitutes. B/c the probate estate is augmented by these testamentary substitutes, cases have referred to the amount subject to the elective share as the augmented estate or the elective share estate. Testamentary Substitutes (To remember list of Testamentary Substitutes we need a LEG UP) Overall: Under current law, almost all nonprobate transfers (except: life insurance, irrevocable dispositions made before marriage, and irrevocable dispositions (gifts) made more than one year before death) are "testamentary substitutes". If T has some interest in the property --> probably a "testamentary substitute"
1. T Totten trusts (e.g., To A, as trustee for B, bank accounts) ("payable on death securities" are in here, too) 2. S Survivorship estates (created during marriage) JT, T by E and joint & survivor bank accounts but only if created
on or after 9/1/66) (watch for: pre- and post- marriage scenarios)
3. L Lifetime transfers w/ strings attached transfers w/ a retained power to revoke, invade, consume or dispose of 4. 5. 6. 7.
principal or name new beneficiaries and irrevocable transfer (made during the marriage) w/ retained life estate made on or after 9/1/92 E Employee pension, profit-sharing, deferred compensation plan if employee designated the beneficiary on or after 9/1/92 and after the marriage. In any case, only one half of a qualified plan (qualified for favorable income tax treatment), is a testamentary substitute G Gifts in excess of $12K made w/in 1 year of death (Also gifts causa mortis gifts made in fear of impending death even w/in the $12K exclusion are testamentary substitutes. These gifts are automatically revoked if donor survives the expected peril.) U U.S. government bonds and other P.O.D. arrangements (pay on death) P Powers of appointment property over which decedent held a presently exercisable general power of appointment (but not property over which he held a general testamentary power)
Non-Testamentary Substitutes (LOGPIT) 1. ** L Life insurance whether payable to surviving spouse or 3rd party 2. O One-half of qualified pension and profit-sharing benefits (In any case, benefits in qualified pension plans are not testamentary substitutes if the employee named a beneficiary before 9/1/92, and did not change the beneficiary designation thereafter.)
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3. G Gifts made w/in 1 year of death w/in the $12K annual exclusion 4. P Pre-marriage irrevocable transfers a gift to a friend prior to the marriage 5. I Irrevocable transfers made more than 1 year before death transfers in which grantor did not retain power to
revoke, invade, consume or dispose of principal
6. T Transfers (irrevocable) w/ retained life estate made during the marriage (and before 9/1/92)
If T does NOT have an interest --> NOT a T-Sub, UNLESS life insurance
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How is this satisfied? (-$75,000) Amount passing to H under the will (-$30,000) Amount passing to H as testamentary substitute (1/2 joint bank account) fiction: add in, then take out (later - here) $55,000 H will receive from other beneficiaries (net elective share) Ex If H cannot prove that any of the funds used to buy the joint tenancy property were contributed by W Elective Share Estate $300,000 Net probate estate ($75K + $225K) 30,000 W-H bank account is testamentary substitute 0 W-S joint tenancy testamentary substitute $330,000 Elective share estate $110,000 Elective share amount (1/3rd of elective share estate)
How is this satisfied (-$75,000) Amount passing to H under the will (-$30,000) Amount passing to H as a testamentary substitute (1/2 joint bank account) $5,000 H will receive from other beneficiaries (net elective share)
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Note If H is able to prove that W furnished one-third of the purchase price for the W-S joint tenancy, then one-third of its value ($50K) would be a testamentary substitute.
2. Added complication: Survivorship estates with deceased spouse and 3rd party created before marriage:
a. although the consideration furnished test applies to such estates, an added complication is raised by the rule that irrevocable dispositions before marriage are not testamentary substitutes. i. pre-marriage joint property of: dead spouse w/ 3rd party --> only is a t-sub ii. note: this rule applies to joint bank accounts (to extent they were made before the marriage) iii. Example #57B Same facts as above, except that the Wanda-Sue joint tenancy was created in 1998 (before Wandas marriage to Harold in 1999). Assume further that Harold can prove that Wanda furnished the entire consideration for the propertys acquisition. See above. 1. Rationale When Wanda acquired the property in 1998 and took title in this form, she made an irrevocable gift of a one-half interest to Sue. As this was an irrevocable disposition before marriage, this one-half is not a testamentary substitute.]
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** Testamentary Substitutes & Intestacy Example #58A Ted died survived by his wife Wilma. They had no children. Ted left $100K in a bank account in his name in trust for his cousin, Claude (Totten trust). He had no other assets solely to his name. Ted did, however, have a joint bank account w/ $140K w/ his friend Felicia which he created after his marriage to Wilma. Ted contributed all the money to this joint bank account. What is Wilma entitled to? 1. Under Intestacy Wilma would get absolutely nothing. There are no probate assets in Teds estate. 2. Via Elective Share a. $0 (probate estate) + $100K (Totten trust) + $140K (joint account w/ 3rd party) = $240K / 3 = $80K Example #58B Same facts, except Ted left real property that he purchased and held w/ Wilma as tenants by the entirety worth $120K. $100,000 (Totten trust account) 140,000 (joint account w/ 3rd party) 60,000 (1/2 value of property w/ W) -- "half in" $300,000 (elective share estate) $100,000 elective share amount (1/3rd of elective share estate) (60,000) (1/2 value of property w/ W) -- "half out" $40,000 W will receive from others (net elective share) Example #58C Same facts except Ted left real property that he purchased and held with Wilma as tenants by the entirety worth $120K and intestate property solely in Teds name of $90K (spouse gets all b/c no kids). $100,000 (Totten trust account) 140,000 (joint account w/ 3rd party) 60,000 (1/2 value of property w/ W) -- "half in" 90,000 (intestate property) $390,000 elective share estate $130,000 elective share amount (1/3rd of elective share) (60,000) (1/2 value of property w/ W) -- "half out" (90,000) (intestate property) _______________ (-$20,000) Ws elective share is satisfied --> W should not exercise right of election b/c receiving more w/o it
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(2) the principle of the trust equaled or exceeded the one-third elective share amount, then the surviving spouse had no right of election. Today Life estates no longer satisfy the elective share entitlement. Bar Exam Tip This rule applies to people dying on or after 9/1/94, not controlled by the date the will was executed (controlled by date of death). It is still possible for this fact pattern to appear on the bar exam if you are given a will executed prior to 9/1/94 that contains an elective share trust w/ a testator dying on or after 9/1/94. What if spouse given a trust, but files for an elective share? 1. Kill the trust a. read the trust as though the surviving spouse predeceased the testator (i.e., kill the trust - act as though there was no life estate in W) 2. Accelerate the remainder What if spouse given 1/3 outright (so elective share satisfied) AND also given a trust? 1. do NOT kill the trust a. don't kill the trust (b/c elective share is satisfied ; only kill the trust if elective share is not satisfied) Example #60 3. Example #60A Herb dies, leaving a will that devises B/A (worth $50K) outright to his wife Wendy, and the balance of his estate in trust: Income to Wendy for life, remainder to Herbs son Steve if he survives Wendy, otherwise to Herbs daughter Donna. The will devises the remaining of Herbs estate to Donna. The net value of Herbs estate (after debts and expenses) is $450K, which includes the value of B/A. Thus, the trust is funded w/ assets worth $200K. No testamentary substitutes are involved. Is Wendy entitled to file notice to take an elective share? W --> B/A (50K) + 200K in trust D --> 200K (1/2 remainder of estate) S --> Remainder of trust after W's life estate (value: 200K) a. b. If H died before 9/1/94 Wendy would not have a right of election. Her net elective share would have been $150K, but she is already receiving $250K if you count the life estate in the $200K trust. If H died on or after 9/1/94 Wendy now has a right of election (b/c now needs to get 1/3 outright). $450,000 (net probate estate) 0 (testamentary substitutes $450,000 elective share estate (get 1/3 of this) $150,000 (50,000) $100,000 elective share amount (1/3rd of elective share estate) value of outright dispositions to spouse W receives from other beneficiaries
4. Example #60B What happens to Wendys trust income interest if she files for an elective share?
a. b. ** You read the trust as though the surviving spouse predeceased the testator (i.e., kill the trust - act as though there was no life estate in W). Then, you accelerate the remainder. Steve will get the remainder interest of $200K. Then, Steve and Donna will each have to kick $50K to satisfy Ws elective share. If W is given 1/3 outright, and is also given a trust --> then don't kill the trust (b/c elective share is satisfied ; only kill the trust if elective share is not satisfied)
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2. 3.
Right of election is personal to the surviving spouse. (Executor, administration of deceased spouse cannot elect.) This shows that the purpose of the elective share status is to protect the spouse, not her heirs. However, the guardian or committee of an incapacitated spouse may elect w/ court approval. Can be waived w/ or w/out consideration; before or after marriage; as to a particular will or testamentary substitute; or as to all wills and testamentary substitutes generally. Waiver must be in writing, signed and acknowledged before a notary public.
** General Point General waiver (for example in a premarital agreement) of all rights in spouses estate waives right to elective share or intestate share, but does not waive rights to specific gifts made by spouses will; there must be an explicit waiver of such bequests. Separate gifts/bequests (through will) can be made when there are prenups, UNLESS there's a specific waiver.
Multijurisdictional Problems
Foreign Domiciliary Owns Real Property in NY 1. Rule Ancillary administration proceedings must be held in NY to clear title to the land. 2. Example #61 H (domiciled in FL) died, survived by his wife W and two children. H owned real property in NY. (Hs will is probated and his entire estate is administered in FL. B/c of the situs rule, ancillary administration proceedings will be required in NY to clear title to the land here.) Foreign Domiciliary Spouses Right to Elective Share 1. Rule Only the spouse of a decedent who was domiciled in NY at the time of his death has the right of election. a. Exception If H expressly states in his will that the disposition of his real property in NY is to be governed by NY law, then W may claim an elective share w/ respect to the NY real estate (i.e., Client retires to FL but still owns real property in NY and still has a NY attorney write his will.) 2. Example #62 H, a domiciliary of NY, owned real property in Florida. He died, survived by his wife W and two children. W files notice of election to take an elective share of 1/3 of Hs net estate. Does Hs net estate, against which the NY elective share applies, include the value of the Florida real estate? a. Yes. Even though the NY court cant adjudicate ownership of the FL property, NY rules will govern the will.
Exempt Property
General Idea These items come off the top (immediately distributed) before look at property passing to the spouse by will, intestate share or elective share. (In any question involving a surviving spouse you will strengthen your answer if you mention exempt personal property set-aside.) Items of Exempt Property 1. Car (up to $15K in value) 2. Furniture, appliances, computers, etc (up to $10K in value) 3. $15K cash allowance (cash allowance is not subject to creditors claims, except funeral expenses) 4. Animals, farm machinery, tractor (up to $15K) 5. Books, pictures, videotapes, software, etc. (up to $1K) Statutory Cap The total value of exempt personal property can be as high as $56K. Bar Exam Tip Unless the bar examiners specifically put an exempt property issue into play, do not mention it up front. First do the elective share calculation. Then mention any you want about exempt property. If you factor it in before doing the elective share calculation it will make the numbers to difficult to work with.
When Spouse Disqualified From Taking Elective Share (and Exempt Property)
General Rule A spouse is disqualified from taking their elective share (and exempt property) in the following situations: 1. D Divorce final decree of divorce or annulment under NY law
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2. 3. 4. 5.
I Invalid divorce/annulment procured by surviving spouse *S Separation decree (not agreement) rendered against surviving spouse M Marriage is void as incestuous or bigamous AL Abandonment and lack of support
General Point A decree of separation disqualifies the surviving spouse from filing for an elective share, but does not disqualify the spouse from taking under the decedents will (only 2 things knock spouse out of will: (i) final decree of divorce or (ii) annulment)
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even if no objection is filed (i.e., automatic inquiry) to determine whether the gift was voluntarily made. b. Example Trudys will bequeathed $25K to Larry Lawyer (Trudys longtime attorney who prepared the will) and her residuary estate to her sister Sue. Sue files no objection to the bequest. Is Larry Lawyer home free? - No Wills Naming Drafting Attorney as Executor a. Rule If a will names the drafting attorney as executor, the attorney MUST given written disclosure to the client that: i. Any person can be named an executor, ii. That the executor receives a statutory commission, and iii. That the attorney handling the estate will also be entitled to legal fees for representing the estate b. Client must sign the acknowledgment w/ 2 witnesses c. Effect of Attorneys Failure to Comply The attorney will receive only half of the statutory commissions.
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No-Contest Clauses
General Idea A no-contest clause is a clause in a will that says, if anyone objects to my will, they will get nothing. Majority Rule No-contest clauses are given full effect unless the court finds that the contest was brought in good faith and with probable cause (i.e., it wasnt a frivolous suit designed to extract a settlement). New York 1. Rule A no-contest clause is given FULL EFFECT even if there was probable cause to challenge the will 2. Exceptions a. Forgery or Revoked by later will i. Objector is arguing that the will is a forgery or that the will was revoked by a later will and the court finds that there was probable cause for the contest b. Infant or Incompetent i. Will contest is filed on behalf of an infant or incompetent c. Construction proceeding i. Proceedings to construe the wills term (i.e., Im not challenging the will; I just want to know what interests are created in it.) d. Objections to the jurisdiction of the court i. (e.g., That testator was domiciled in NJ, not NY. Im not challenging the will; I say it should be probated in Trenton.) 3. Rationale A testator should be permitted to protect his testamentary plan and his reputation against post-death attack. Example #65 1. Example #65A Ts will bequeathed $25K to his son Sam and his residuary estate to his daughter Donna. The will contained a no-contest clause: If any beneficiary contests my will or any of its provisions, he shall forfeit his legacy. Sam contests the will on grounds of undue influence and lack of testamentary capacity. Sam loses the contest, but there is evidence that he had probable cause for bringing the action. Does Sam forfeit the $25K bequest? a. Majority Sam does not forfeit the legacy b/c he had probable cause for brining the contest. b. NY In NY, same does forfeit the legacy b/c we dont care about probable cause and he cant fit his challenge into any of the four exceptions. 2. Example #65B Does this exception apply if Nephew contests will on ground that Uncles will was revoked by physical act? a. No. In NY, Sam could challenge the will by arguing it was revoked by a later will but not by arguing that it was revoked by a physical act.
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Example #66E a. Suppose instead that Toms will provides: The trustee shall pay the income to my daughter Dana for life. However, during her lifetime Dana can appoint the trust property to anyone, including herself, by a written instrument delivered to the trustee. i. Dana is the donee of a presently exercisable general power of appointment. If Dana does exercise the power of appointment, on her death, the trustee will distribute the principal of the trust property over which she has this power of appointment to either the beneficiaries of the residuary estate if Dana has a will or via intestacy. b. Dana dies some years later, leaving a will that devises all the rest, residue and remainder of my estate, including any property over which I may have a power of appointment, to my son John. Did Dana exercise this presently exercisable power of appointment by her will? i. Yes, unless Toms will had expressly excluded exercising the power of appointment by will.
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