wills bar exam
Terms
undefined, object
copy deck
- Execution of Will: requirments
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1) Testator 18
2) SIGNED by T (or someone at his direction) (any identity mark ok) (volitional help key, help ok) (if person signs for T, cant be attesting W)
3) T signed AT END (anything below signature ignored, rest submitted) (if stuff below so material, whole will invalid)
4) T ACKNOLEDGED signature in presence of each witness (contemporanous transaction makes order irrelevent)(W doesnt have to actually see the signing, T show W signature, say will is his)
5) T must PUBLISH - communicate to W they are W a will, not some other document
6)2 ATTESTING Ws (don't have to be in each other presence) (don't have to be in Ts presence)
7) must complete cerimony within 30 days (starts with first witness signing) - attestation clause:
- recites facts of due execution and establishes a prima facie case for probate where Ws not available to testify or hostile
- self-proving avvidavit:
- ok in lui of Ws testimony - (W affidavit that will properly executed)
- interested witness: supernumery rule, whatever is least rule, etc
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(will still valid)
(if benficiary, will still valid, but bequest is void unless: still 2 disinterested Ws)
(lessor of intestate share or bequiest) - holographic wills:
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not valid in NY unless meet execution requirements
miltary personel exception - Foreign WIlls Act
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1) NY laws
2) law of state executed in
3) law of T domicile at time of execution or T death - Revocation: subsequent testamentary instrament
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executed with proper formalities
writing void on each page, not enough, no 2 W - revocation: physical act
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burning, tearing, mutalating, canceling
writing viod across front face, or obliterating words is enough -mutilation
crossing out signature enough, anything that destroys signature deemed decisive for revocation - simultanious death
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any breif moment enough to not apply the USDA
T property pases as if B predeceased T (anti-lapse applies)
death by both joint tenets or T by the E - property pass as tenents in common 1/2 share by each will/intestacy - class gifts
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members of class who survive testator share gift
anti-lapse statute trumpes class gift rule (if brother sisters, or issue)
rule of convenience: class closes when T dies (280 day gestation period) (or for trusts: class closes when member can demand payment (when Income Benificiary dies)) - Intestate Succession: no will
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each generation takes per capita
if spouse no issue - all spouse
if spouse and issue = spouse gets 50k + 1/2 - the remaining 1/2 goes to issue per capita at each generation
count at each level living persons + decesed persons with living heirs, divide by that total, pool remainder to next level and repeat
this applies to testate or trust provisions to issue or heirs
in-laws and step children out
no provision in will for expected devise is valid - Intestate succession: no spouse or issue, order
- 1) surviving parents, 2)in none, to siblings with issue rules, 3) if none, split to grandparents, 4) great grandchildren of grandparents, 5) state
- marraige after will executed
- has no effect on Will - (elective share)
- divorce after will executed
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revokes any gifts to spouse (spouse predeceased T) and spouse is not executor by operation of law
doesnt effect gifts to spouses family or kids not by T
must be final decree (not pending proceeding, or speratio agreement)
if remarries - restored will as to spouse - pretermitted child
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born or adopted after Will executed
treat as if part of class gift (share with siblings)
gets intestate share if children get screwed in will, or if no kids at time of will execution
pretermitted child statute: statute does apply if children alive adopted at time of will execution, or if child provided for by other arraingement (life insurance,etc) - no incorporation by reference in NY
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EPTL bars this, unless created with formalities of will
allows use of pour over wills and inter vivos trusts - acts of independant significance
- are valid
- nontestamentary assets
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life insurance,, survivorship estates
not governed by will
subject to probate - specific gift of encumbered property
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default is that passes subject to mortgages and leins
EPTL - no exoneration of liens unless specifically directed to pass that way
"pay just debts" not good enough - Ademption
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specific disposition - my - ademption applies
ademption is: when specific bequiest not in estate on T death the gift fails - ademption: general disposition
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gifts of a general amount
ademption does not apply, other property sold to satisfy - ademption demonstrative disposition
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gifts of general amount to be paid from specific or identitfied property
ademption does not apply, other property sold to satisfy - ademption statutory exceptions
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insurance proceeds of bequethed property lost/damaged
executory contracts - B takes remained payments owed to extent paid after death of T
traceable proceeds of sale of bequethed property by garudian or executor (not T) - ademption shares of stock
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stock sold before death
I give 5k to be paid from sale of stock - demonstrative gift - no ademption
i give 100 shares of IBM - since IBM publicly traded, general gift, no ademption. gets date of death value
if stock close corp, then ademption applies
stock splits - specific bequest extra shares go to the person who was given the first shares - Elective Share - Basics
- did spouse get greater or 50k or 1/3 of net estate (after debts paid but before estate taxes)
- elective share: TSUBS, augmented estate includes:
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TS LEG UP
totton trusts (to A, as trustee for B)
survivorship estates (joint tenancies, T by E, joint bank accounts) if held by SS and D, 1/2 goes in, if held by D and TP - consideration furnished test (if created bf marriage only 1/2 of cinsideration furnished goes in)
lifetime transfers that include power to revoke (rev. trusts)
employee pension benifit plans (1/2 of total)
gifts above the 11k exclusion made within one year of death
us bonds - elective share: augmented estate does not include
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LOG PIT
life insurance policies
other half of pension
gifts below 11k
pre-marriage irrev. transfers (joint tenacy pre marraige)
irrevocable transfers made more than 1 year before death
transfers with a retained life estate made before 9/1/92 - elective share: disqualifying
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DISMAL
divorce or annulment (valid under NY law)
invalid divorce (SS obtained it not D)
seperation decree (agreement not enough)
marriage void - bigamous/incest
abandonment, lack of suppport SS purpotrated - Will Contests: testamentary capacity
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REQS
1. understood making a will
2. knew nature and value of property
3. knew natural objects in his bounty
4. understood disposition he was making
5. could have TC even if declared incometant by court and have gaurdian (moment of lucidity - Will contests: undue influence
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burden on contestant to show all:
1. existance and exertion of influence
2. effect was to overpower Ts mind and will
3. prodcut is will or gift not executed but for influence - will contests: undue influence, lawyers
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if will makes gift to person in confidential relationships, presumption is undue influence
PUTNUM scutiny if gift to drafting attorney even if no objection filed - drafting attorney named executor then attorney must:
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give written disclosure that says:
1) any person can be named
2) executors recieve commissions
3) L can get legal fees
2 Ws must attest
if fails, the executors commision reduced by 50% - no contest clauses
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presumed valid - some exceptions:
1) forgory grounds
2) will revoked y later will grounds and PC (not if argument is revokation by physical act)
3) contest filed on behlaf of incompetant or infant
4) suit to construe terms
5) Jurisdiction objection - fraud will contests
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either
1)misrep as to the nature or contents of the will OR
2) induced to making will by misrep of facts that influence motivation - mistake wills
- mistaken as to nature of instrament (thought power of attorney form, not will)
- power of appointments: presently exercisable general power
- can appoint principal to anyone by will or during life
- power of appointments: general testamentary power
- only by will in favor of anyone - if will is silent presumed to B heirs, unless specific reference clause
- power of appointment: special
- can only appoint to particular parties, but not creditors, or herslef, or estate