Wills

Question 0

NY testamentary gifts called . . .

Answer 0

Dispositions

Question 1

Valid will requirements

Answer 1

1. 18 and competent
2. Sign at end of document
3. In presence of 2 Ws or acknowledge his sig to 2 Ws
4. Ws must sign w/n 30 days of each other
5. Testator must tell Ws it’s a will

Question 2

Four kinds of NY dispositions

Answer 2

Specific
Demonstrative
General
Residuary

Question 3

Specific disposition

Answer 3

Gift of specific property

Question 4

General disposition

Answer 4

Money from the general estate

Question 5

Demonstrative disposition

Answer 5

Money from a specific source.

- shortfall made up from general funds

Question 6

Priority of debts owed by estate

Answer 6

1. Specific
2. Demonstrative
3. General
4. Residual
5. Intestacy

Question 7

NY Anti-Lapse Statute

Answer 7

No lapse if testator’s sibling/issue but only if the predeceasing beneficiary has issue of his own.

Question 8

If residuary beneficiary lapses . . .

Answer 8

Estate goes by intestacy

Question 9

Intestate share of SS

Answer 9

1. No issue –> Everything

2. Issue –> 50K + 1/2 of the rest of the estate

Question 10

Abandonment precluding SS intestate share

Answer 10

1. Voluntary
2. Permanent
3. W/o consent of abandoned spouse

Question 11

NY simultaneous death

Answer 11

If spouses die 120 hrs (5 days) of each other, they are presumed to have died simultaneously

Question 12

NY Intestate share of issue

Answer 12

Per capita at each generation
“equally near, equally dear”
- Divide, Distribute, Re-bundle, Divide Again

Question 13

Who count’s as issue

Answer 13

1. Natural children
2. Post-humously born children
3. Adopted children

Question 14

When can adopted child inherit through natural parent?

Answer 14

1. Decedent was the adopted child’s grandparent or descendant of grandparent
2. Adoptive parent is married to child’s bio parent

Question 15

When can wedlock child inherit from father . . .

Answer 15

1. Marriage - F later married bio mom
2. Behavior - F held out child as his own
3. Blood test - while F alive
4. Adjudication - while F alive
5. Writing - F made doc acknowledging paternity

Question 16

Intestate priority of remote collaterals

Answer 16

1. Parents
2. Issue of parents
3. Grandparents
4. Issue of grandparents

Question 17

NY purging statute

Answer 17

If W is a beneficiary in the will, W’s share is purged (in excess of W’s intestate share)

Question 18

Modifications to a will

Answer 18

Codicil

Question 19

Valid codicils

Answer 19

Must comport with all will formalities

Question 20

Modification of will act formalities

Answer 20

Integration
Incorporation by reference ( NOT NY)
Acts of independent legal significance

Question 21

Will substitutes

Answer 21

Revocable trusts
Pour over wills
Bank accounts for another's benny
Ks w/ payable on death provisions
Life Insurance 
Joint tenancies 
Totten trusts
Gifts causa mortis

Question 22

Subsequent will vs codicil

Answer 22

If a later will is not entirely inconsistent w/ prior will, it is only a codicil

Question 23

Methods of will revocation

Answer 23

1. Subsequent testamentary instrument
2. Divorce
3. Physical act

Question 24

Revocation of a codicil

Answer 24

Revives original will

Question 25

Revocation by physical act

Answer 25

1. Any act of destruction 2. Material portion 3. W/ intent to revoke

Question 26

Presumption of destruction by physical act

Answer 26

1. Will last in testator's possession | 2. Cannot be found after death

Question 27

Ademption

Answer 27

Disposed property no longer in estate at time of death

Question 28

3rd party revocation by physical act

Answer 28

1. At testator's direction 2. In testator's presence 3. Proved by 2 Ws

Question 29

Court avoidance of ademption

Answer 29

1. Interpret the disposition as general instead of specific | 2. Treat extinction as change in form not substance

Question 30

Protections for a SS

Answer 30

1. Homestead exception 2. Personal property set-aside 3. Elective share

Question 31

Elective share

Answer 31

50K or 1/3 of the net estate, whichever is higher

Question 32

Lifetime gifts to children

Answer 32

Treated as advance against inheritance if donor-decedent demo'd intent in contemporaneous writing

Question 33

Elective share net estate

Answer 33

- probate property - Gifts made in contemplation of death - Joint accounts - Joint tenancies - Revocable trusts - Power of appointment - Money in a deferred comp plan, pension, profit-sharing plan, stock bonus plan, death benefit plan - Any transfer of property made w/n 1 year to extend he didn't get adequate compensation *SUBTRACT DEBTS/EXPENSES

Question 34

Pretermitted Children Rule

Answer 34

No kids --> intestate share | Kids --> share of gift left to earlier kids

Question 35

Bars to succession

Answer 35

1. Homicide 2. Disclaimer 3. Disqualification

Question 36

5 attacks of testator's mental state

Answer 36

1. Capacity 2. Insane delusion 3. Undue influence 4. Fraud 5. Duress

Question 37

Capacity

Answer 37

Capacity (not actual knowledge) of: 1. Nature of act 2. Nature, character, and value of property 3. Natural objects of his bounty 4. Fact that he is executing a will 5. Plan of attempted disposition

Question 38

Result of lack of capacity?

Answer 38

Entire will is void

Question 39

Insane delusion

Answer 39

belief re: world w/o factual/reasonable basis that testator has despite reason/evidence to contrary

Question 40

Presumption Undue influence

Answer 40

Special rel + suspicious circumstances

Question 41

Suspicious circumstances

Answer 41

unnatural disposition, will made in haste/secrecy, weakened condition of T

Question 42

Fraud

Answer 42

1. Misrepresentation 2. Intending and causing 3. Disposition T wouldn't otherwise have made

Question 43

Remedy of Fraud & Undue Influence

Answer 43

Prop held in constructive trust for proper beneficiaries

Question 44

Exceptions to no-contest provision

Answer 44

1. Forgery claim 2. Claim on behalf of child/incompetent 3. Jx objection

Question 45

Durable power of attorney

Answer 45

power to make legal decisions in the event of incapacity

Question 47

Power of atty terminates upon . . .

Answer 47

1. Death of P 2. Revocation by P 3. Incapacity of P (if not durable) 4. Agent resigns, dies 5. Court revocation 6. Purpose is completed

Question 48

Elective share non-probate assets (key inquiry)

Answer 48

Whether the testator operated sufficient control during life

Question 49

Notable exclusions from net estate in elective share calculations

Answer 49

Life insurance & irrevocable transfers - Pre-nuptial agmts too

Question 50

Anti-Lapse Class Gift Rule

Answer 50

If a disposition is to a class of people, instead of individuals, and 1 dies, gift goes to remaining class members --> Testator must have been group-minded

Question 51

Extrinsic evidence

Answer 51

NY allows extrinsic evidence to resolve ambiguity or mistake

Question 52

Partial Revocation by physical act

Answer 52

NY does NOT recognize

Question 53

Republication by codicil

Answer 53

Executing a codicil will republish a will as of the date of the codicil - a strong presumption (but a strong one)

Question 54

Dependent Relative Revocation

Answer 54

If a T revokes a will based on some material mistake about the will or about the effect of revocation - then revocation may be deemed ineffective --> intent to revoke is critical here

Question 55

Adopted kids and anti-lapse

Answer 55

adopted-out child will not take in a class gift from a birth relative unless that child is specifically named in a biological ancestor’s will or the gift is expressly made to issue including those adopted out of the family