Grats Trans
Spring 2003
Gaetanos
Tues and Thurs 8-9:30
1-28-03 Tuesday Class:
see NY Wills bar br outline
Christ Gaetanos
cgaetanos@att.net
I. Intro
A. You don’t probate an estate, you probate a will. When you die, it is assumed you
don’t have a will. You have to prove there is a will
B. Process
1. takes between 1 mo. and 2 mo.; involves waiting around
C. Focus
1. NYS law, Surrogate’s Court
2. NYS requires 2 signatures
D. Uniform Probate Code
1. the law in quite a # of states; not all that different from NY law
E. Definition
1. transfers w/o consideration; usually to friends and family.
F. EPTL 4-1.1
1. dissent and distribution
2. intestate – someone who dies w/o a will, in part or in whole.
a. a fair # of people do not have wills.
G. Problem #1: Harry
1. Wants to convert his estate into as many $1,000 diamonds as he can. You can’t
always do whatever you want to do with it.
2. EPTL – need to determine what his property is.
a. every state has a spousal rt of election: you cannot disinherit your spouse. You can
disinherit your children. Even though it is his property, she has a claim.
b. insurance policy – it is a contract that if an event occurs, someone gets some $.
c. IRS wants to know what cash value you have in a policy. With insurance policy, he
has the right to change his beneficiary
3. another asset – bank account, in his own name.
H. McCarthy case
1. there wasn’t enough in the will to change the insurance policy contract. It is a hardluck case. 5 minutes after he gets married, he gets MS. Gets severe tremors, becomes
legally blind.
2. wife leaves him, and father takes care of him. Husband dies, and then wife comes
back and wants the $16,000. But he never changed the life insurance beneficiary.
a. lower court tried to do the so-called right thing.
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3. H had left behind a holographic will (3-3.2), which is a will entirely in the
handwriting of the decedent. Only acceptable if someone is in armed services, or a
mariner at sea.
a. this was an attempt to write a will, but it was invalid. Ct says intent is most
important, but it is not enough.
I. Note
1. if client asks you to change beneficiary of insurance policy in their will; tell them
they need to fill out the proper insurance form.
2. ins. co. doesn’t care who it pays $ to, so long as they don’t have to pay it twice, which
happens sometimes.
II. Problem #1: Harry
A. Insurance policy:
1. Wants to convert his estate into as many $1,000 diamonds as he can. You can’t
always do whatever you want to do with it.
2. EPTL – need to determine what his property is.
a. every state has a spousal rt of election: you cannot disinherit your spouse. You can
disinherit your children. Even though it is his property, she has a claim.
b. insurance policy – it is a contract that if an event occurs, someone gets some $.
c. IRS wants to know what cash value you have in a policy. With insurance policy, he
has the right to change his beneficiary
3. another asset – bank account, in his own name.
B. Painting
1. Gruen v. Gruen – H buys painting; wife is D and step-son is P. H sent letter to son,
saying he wanted to give painting to him, after he died. Lawyer said that’s not proper, so
H wrote another letter – stating he’d give the painting to his son.
2. $2.5 million – income tax and estate tax free. H kept the painting for the time being –
he wanted to have his cake and eat it too.
3. property is nothing more than a bundle of rights.
a. to have a painting, he has a right to will it, to loan it out, destroy it. This thing
happens all the time. The son won in this case.
4. son acted inconsistently with the gift. The letter was sent. What is in a probate estate?
There is a present interest and a future interest. The painting is still going to the son John.
Another artificial distinction. It may be that Gruden had some artificial control, this is not
a probate asset. Not an asset that would be governed by will.
HW cont’d:
II. EPTL
A. 4-1.1 - Descent and distribution of a decedent’s estate
1. lays out who to give the $ to based on who are the surviving relatives
B. 5-3.1 – Exemption for benefit of family
1. exemptions for cars, etc.
Ch. 1: Introduction
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III. Shapira v. Union Nat’l Bank (p. 1 cb)
A. Facts: Father gives his estate to his 3 kids. Son Daniel only gets $ if he marries a
Jewish girl with 2 jewish parents w/i 7 yrs. If not, $ goes to Israel.
B. Issue: Whether P can collect $ even if he doesn’t comply?
C. Holding: No.
D. Reasoning: The rt to marry is constitutionally protected. The rt to receive property by
will is a creature of the law and is not a natural right or one guaranteed or protected. Son
is not being blackmailed into a marriage.
E. Policy: A partial restraint on marriage is valid.
F. Book notes: Should the ct care what father’s motives were, when he wrote the will?
1. 1540 – English parliament passes Statute of Wills, giving property owners more
options when devising their wills.
G. Class:
1. The restriction did not violate public policy. What about if father said, I’ll pay you
$50,000 to divorce your wife? It stretches Shapira notion.
2. P had a lot of $. Son has a 7-yr grace period. D can disinherit his children. The rt to
receive property is not a const’l rt.
a. judge is upholding the testator’s intentions; not worrying about the effect it has on
other people.
3. What if son was already married? I’ll give you half of my estate if you divorce your
wife. See Hackett. You don’t want to destroy relationships. If father made such a promise
during lifetime, and reniged, on it, would that K rt be enforced? It is unclear.
4. Maddox – American case. Ct: it is unreasonable to force niece to marry Society of
Friends person, bc there there weren’t many eligible bachelors.
Ch. 7: Trusts
Section VI: Charitable Trusts
Cy pres doctrine – The equitable doctrine that written instruments should be construed
as closely to the parties’ intention as possible. Cts use this doctrine in construing
charitable gifts when the donor’s original charitable purpose cannot be fulfilled.
IV. Estate of Crawshaw (p. 589 cb)
A. Facts: C bequeathed $ to Salvation Army (SA) and Marymount College. His will said
$ was to go to both. He had 2 residual trusts. College nursing students were to benefit.
They cy pres doctrine permits a ct to implement a testator’s intent and save a gift to
charity by substituting beneficiaries when the named charitable beneficiary is unable to
take the gift. College said legis. intended to broaden its application.
B. Issue: Whether to apply the cy pres doctrine to a testamentary trust?
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C. Holding: Yes.
D. Reasoning: We need to look at the entire will. College urges the language of will
meant C wanted to give trustee maximum flexibility to change the way the fund is
administered. A testator’s intentions must be ascertained from the four corners of the
will, not from any single provision.
E. Policy: Charitable trusts are favorites in the law and should receive a liberal
construction. College gets the $, not SA.
F. Book notes: many cy pres disputes involve 2 charitable entities.
G. Class:
V. Estate of Wilson (p. 602 cb)
A. Facts: W dies, and bequeaths residuary of his estate to help 5 boys who are going to
college, and have done well in HS. Bank claimed this violated EPC.
B. Issue: Whether the equal protection clause (EPC) of the 14th amendment is violated
when a ct permits the administration of private charitable trusts according to the testators’
intent to finance the education of male students and not female students?
C. Holding: No.
D. Reasoning: The eradication in this state of gender-based discrimination is an
important public policy. A charitable trust though should not be invalidated on public
policy grounds. If a trustee is unwilling to perform his or her job, then he or she can be
replaced with someone who will. State is not under an affirmative obligation to ensure
discrimination does not take place.
E. Policy: Charitable trusts: do what you like.
F. Book notes: If you can discriminate based on gender in a charitable trust, what is to
prevent you from discriminating based on age, race, religion, etc?
1. charitable trusts are exempt from the Rule against Perpetuities.
G. Class:
1. Filed a complaint with EEOC. Did it violate education amendments of 1972. Cy pres
was not used. School bd decided to fix the problem by getting out of the mix. In private
context, you can discriminate all you want. We get to the margins, we start to see erosion.
VI. Pace (p. 27 supp.)
A. Facts: P died and left will. Wanted house razed; give some $ to nephew. Doesn’t want
new garage constructed on his property. Lower ct refused to raze house, since it is
violative of public policy.
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B. Issue: Whether the ct should grant P’s request, which albeit legal, is against public
policy?
C. Holding: No.
D. Reasoning: P’s will doesn’t benefit anyone. Destruction of houses is against public
policy. This is not something P would’ve done when he was alive. Trusts are to be used
for beneficial, not destructive, purposes. Cited Everman case.
E. Policy: Don’t waste.
F. Class: D could have destroyed it when he was alive, but he did not. In most of these
cases, it is very clear what the D want. Judge assumed that D would not have destroyed it
while he was alive.
1. theme: would D have done in life what he wished to do at death? Pace had lived in
this house for quite a long time. Doesn’t appear to be any other evidence in this case.
Have to look at 4 corners of the will first. If it is not clear enough, you look outside the
will.
VII. Anna Beck (p. 32 supp.)
A. Facts: B wished for her family home to be torn down. City of Buffalo objected, citing
this was against public policy. B’s church was to get the proceeds. B had previously
agreed to give Buffalo a purchase option to buy it after she died.
B. Issue: Whether the ct should allow trustee to comply with B’s wish to tear down
home, even if it is against public policy?
C. Holding: Yes.
D. Reasoning: Even Buffalo acknowledges AB can do what she wants with the house.
Can’t just breach agreements like that. AB can dispose of her property how she wants.
E. Policy: Tear down the house.
F. Class: RPAPL
1. and Surrogate Ct procedure act – prevent fiduciary from engaging in waste. BURA is
doing an about face. This house has had great meaning for her for her personal heritage.
She had lived there for a long time.
2. can’t underestimate the intent of the testator. Judges try to sustain that intent until
when testator seeks to destroy property.
VIII. Walker (p. 36 supp.)
A. Facts: Former NYC mayor Walker dies, and adopted children want their adoption
decrees. They contend that upon reaching their majority, they were entitled to possession
of the adoption decrees.
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B. Issue: Whether the testator intended to bequeath the adoption decrees to petitioners by
his will? If he did, whether enforcement of such a bequest is consistent with the public
policy of this state?
C. Holding: Yes. No.
D. Reasoning: Testator can leave property as he sees fit. Ct culls intent from will, and
prevents property transfer that is against public policy. Adoption decrees fall under the
definition of personal property. Adoption records are confidential, according to the state
legis.
E. Dissent: Majority states that adoption decrees are personal property that can be
bequeathed. Public policy considerations should not be extended here. These decrees
could have lawfully been transferred during W’s lifetime.
F. Policy: Giving the adoption decrees is against public policy, and thus, unenforceable.
G. Class: Ct. didn’t let them access the adoptions documents. Judges look to statute to
determine public policy. Ct. seeks to protect privacy right of natural parents, who had
given these girls up for adoption long ago.
1. a lot of cases are decided on how a judge feels.
1-30-03 Thurs Class:
I. Problem 1 continued
A. McCarthy
1. if you don’t follow the terms of the policy, the will won’t work. Testator can override
that requirement, if he/she is in contact with the insurance co.
2. we’re judges here, we can’t have these cases coming to us every 5 minutes.
B. 4 – bank account - $25,000
1. a classic probate asset. It is owned in his name, and not subject to any survivorship
device. Who gets it?
2. it is probate bc it is in his name.
3. EPTL 5-3.1 exemption for benefit of family. The family bible rule. It is supposed to
set aside some assets for the benefits of certain families. A fourth example of
survivorship rights. Have to leave a spouse or a child under 21.
a. have 3 kids, but only 1 is under 21. So, spouse and Tina have some rts. The spouse
takes priority.
b. certain items listed 1 through 5 are not items in the estate; and thus not governed by
the will. Can take up to $15,000 (EPTL 5-3.1(a)(5)).
4. Here, wife has choice: cash or personal property. Almost always people take cash.
Need to first use that $ to pay for the decedent’s funeral.
C. #5: Joint bank account with daughter ($18,000)
1. The problem doesn’t say who put the $ in. Banking Law Sec. 675, 678.
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a. person who opened it, is deemed to make a gift for half of it. Just before he died,
Harry took out $8,000.
2. Lang (p. 15) – ct said you opened joint bank account, you’re giving half of it away,
and created a survivorship. Can’t take out second half: you’re breaking the joint tenancy
a. this isn’t a tenancy at common. If you take out more than your fair share, you have to
put it back.
3. Brezinski – develop joint tenacy. Usually a younger person and an older person.
CPLR 4519 says after someone has died, you cannot introduce evidence of what they
said in order to prove a case that involves their property. If B had died, she was able to
testify on her own behalf of her intentions when she set this up.
a. Rule: You take out more than your half, you have to put it back.
b. what happens if you take less than half? No C of A case has addressed this issue.
Lower NY cts held if this happens, you still have a joint tenancy. When Harry took out
$8,000, he could take out only $1,000. That’s it
4. You can override this with a convenience account. Good luck if you can find a bank
that will allow you to set up that account. Banks view is to explain this to most layman, it
will confuse them. Joint tenant should be someone you really trust.
D. #6: Totten Trust Bank account
1. question is who owned the $ in the bank. Cardozo said that kind of a bank account, in
effect creates a revocable trust. Even though, the decedent could have revoked the trust in
all sorts of ways, if he didn’t before the death, the beneficiary of the trust takes the $.
a. it is not created by the will. This is a survivorship device. People disputed if a trust
was created, and what the terms were. So NYS passed:
2. EPTL 7-5.1 (definitions) and 7-5.2 (terms of a trust account). The latter states
decedent can revoke a trust. Can do it only by means of express direction. One you can
just take the $ out. It is a peculiar interest. It is a probate asset, which is governed by the
will. At this rate, we are going pretty good.
a. down to less than half of the estate at this point. If you have more than one trust
account, you have to address each one ind’lly.
E. #7: securities
1. it becomes part of the estate.
F. Death benefits – also see McCarthy
1. Trigoboff (p. 18) – testators will rather than the default designation of an IRA
beneficiary is controlling. Will trumps IRA designation. D didn’t change the beneficiary
on the form.
2. Freedman – (p. 23) – if it is not specified in the will, then the IRA designation is
controlling
3. Harry wrote a will that says he wants to leave his pension for her. Question is whether
wife was named or not. If you’re not specific enough, the ct will not enforce a
testamentary attempt to dispose of your property.
a. under ERISA, you have 2 issues: does it preempt state law? Answer is that it does. If
you become subject to pension plan, and are married, your wife is designated
automatically as your beneficiary, unless the spouse elects not to be covered. Most
retirement plans are federal?
b. Prof’s hunch: given how unspecific H is in this case, this becomes an asset that
passes outside of the probate. Harry, who did OK for himself, is having trouble?
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G. Remainder interest
1. it goes into the estate
H. Clothing, etc.
1. is not part of the probate estate.
I. Car
1. if it is more than $15,000, then she can buy the rest of it. An appraisal is a cost to the
estate
ESTATE:
1. 10 bank
2. 50 stock
3. 35 remainder
2-2-03 Sunday HW:
GIFTS:
I. Gruen v. Gruen (p. 45 cb)
A. Facts: Son and mother fight over who gets to keep father’s painting. Father had
recently passed away. H sent letter to son, saying he wanted to give painting to him, after
he died. Lawyer said that’s not proper, so H wrote another letter – stating he’d give the
painting to his son but H will keep a life estate on it.
B. Issue: Whether to grant the painting to the son, who never actually had possession of
it during father’s lifetime?
C. Holding: Yes.
D. Reasoning: For in to be a valid transfer, it must take place presently, not sometime in
the future. Here, H can hold on to the painting for awhile, and bequeath it later, at death.
Yet we only have letters which serve as instruments of gift.
E. Policy: The law presumes an acceptance on son’s part, even though he can’t get the
painting till after his father’s death.
F. Class:
1. A good way not to act. He writes letter to his son, I want to give you a gift but wants
a life estate in it. I didn’t really mean that first letter. The lawyer took an active role in
disguising a gift here.
II. McCarthy v. Aetna Life Ins. (p. 6 supp.)
A. Facts: P gets married to K, who then gets sick and gets MS. P leaves, and K’s dad
looks after him. He never changes the name of the beneficiary on his insurance policy.
He does do a holographic will, naming dad as beneficiary. After death, P is back and
wants the $.
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B. Issue: Whether a decedent’s insured may effect a change of the designation of
beneficiary on a life insurance policy by means of a testamentary disposition when the
policy set out another procedure for changing beneficiaries?
C. Holding: No.
D. Reasoning: You have to follow the methods prescribed by the insurance company to
change the beneficiary of a policy. Look at the intent of the insured. But there must also
be some affirmative act on the part of the insured.
E. Policy: You cannot just speculate as to the intent of the parties, you have to follow the
guidelines.
III. Brezinski v. Brezinski (p. 13)
A. Facts: Family members had joint bank accounts set up. At one point, father withdrew
more than half of it. Wife sues others to get the $ back, after husband had died and
bequeathed $ to them, and not wife.
B. Issue: Whether one can withdraw more than half of a joint bank account and give it to
a third party?
C. Holding: No.
D. Reasoning: Burden initially is with older woman, and then shifts to the defendant.
E. Policy: A joint bank account is a joint tenancy, and thus you cannot remove more than
you fair share (i.e. half).
IV. Banking Law
A. 675 – Joint deposits and shares
1. by making deposit, that is prima facie evidence that parties wish to have a joint
tenany in the account, with a rt of survivorship.
B. 678 –
1. if a third party makes a deposit, it will be considered as made by the original
depositor.
V. Matter of Lang (p. 15)
A. Facts: D died. But before she lived in same complex as niece. The two had opened up
a joint bank account. At some point, she withdrew more than her share of the $ and put it
into an account with her husband.
B. Issue: Whether the niece, part holder of a joint bank account with decedent, must
return $ to decedent, since she took out more than her fair share?
C. Holding: Yes.
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D. Reasoning: Niece has failed to establish that either withdrawl was in any way w/ the
consent of decedent or for the benefit of decedent. $ has to go back to the estate. The rt of
survivorship was destroyed by the unilateral act of the respondent prior to its coming into
operation by the death of the decedent.
E. Policy: Excess of money (more than 50%) withdrawn from joint bank account w/o
consent of decedent must be returned to estate by respondent.
VI. EPTL
A. 7-5.1
1. definitions of beneficiary, etc.
B. 7-5.2
1. terms of a trust account.
VII. Trigoboff (p. 18)
A. Facts: Family tries to see if spouse will get the D’s IRA or not. D had put kids on as
beneficiaries in his will. He then re-married but D didn’t name a beneficiary on the form.
IRA presumes spouse is the beneficiary if no beneficiary is named.
B. Issue: Whether a testamentary disposition of an IRA in a will pre-dating decedent’s
marriage supercedes the IRA’s generic default designation in favor of the surviving
spouse?
C. Holding: Yes.
D. Reasoning: IRAs set forth a procedure for naming a beneficiary. If payor waives
compliance, ct must seek to do what the decedent wanted to be done. Will stands as
evidence of clear intent. The will is a better gauge than a blank IRA form, of decedent’s
intent.
E. Policy: Testators’ will rather than the default designation of an IRA beneficiary is
controlling. Will trumps IRA designation.
VIII. Freedman (p. 23)
A. Facts: D was married to E. He named her beneficiary of most of his estate in his will.
He also rolled over an IRA account to her. In 97, they got divorced. Implemented a new
will cutting her off but forgot to change the IRA beneficiary. D died in 98.
B. Issue: Whether to give $ to E, who is named as IRA beneficiary, even though D
subsequently divorced her and removed her from his will?
C. Holding: Yes.
D. Reasoning: Any change in beneficiary must be done in writing. General testamentary
statements in a will will not suffice.
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E. Policy: If it is not specified in the will, then the IRA designation is controlling.
IX. EPTL
A. 1-2.19
1. defines will, which can include a decedent’s desire how not to dispose of his estate!
2-4-03 Tues Class:
I. Hypo
A. U.S. Law
1. there is a limit to how much you can disinherit your spouse.
2. He had asked her to waive her share.
II. Continuation of Problem
A. Construction of family tree
1. let’s assume someone challenges the will and is successful. So, that moves us into
intestate (EPTL 4.1-1)
2. if you don’t tell us what you want, we’ll tell you what we think you’d want based
on policy considerations, etc.
3. so, we’ll assume tax is zero. Only talking about $80,000 of the $545,000. This
statute exists for people who don’t have wills or have invalid will.
4. need residuary clause. Otherwise, you’re scratching your head.
B. Parts – if no spouse
1. Hilda gets $50,000 plus half of residual, so, $65,000. (EPTL 4-1.1(a)(1))
a. rest goes to his issue, his kids. If you have immediate ancestor, then you cannot
represent. Harry only has 3 issue that doesn’t need representation bc they are still
alive. That is the first generation of children.
b. Parent can take $ from child if less than $10,000. If it is above $10,000, you need to
go to ct. Want to encourage your client to write a will.
2. Hilda gets the whole $80,000. A fundamental policy that favors spouse or current
generation over preceding generation. Need to look at these rules considering policy.
3. The family residence: half goes to spouse, plus one half of residual, so $60,000 and
then the rest, $20,000, goes to the children: John, Doris and Tina.
4. joint bank account in his name: no matter about the in-laws, Ed and Eve split the
$5,000.
5. don’t want to send $ up the ladder.
6. Joe is second generation, nephew Lenny survived. It would go to Joe. Look at p. 66.
Lenny is representing Lucy, and that is why he takes the money
7. EPTL 4-1.1a6, it goes to Dave. But say Dave died, and leaves a son, Dan. If you
can’t find an heir after Dave, then it goes into the estate.
8. Dave is grandchild. And Sarah is the aunt. She gets half bc she is issue of paternal
grandparents ad Dave gets hald bc he is the issue of the grandparents. Even though
they are at different levels, Sarah happens to live long enough so she takes the
paternal grandparents hald and Dave takes the maternal grandparents’ half.
a. under old English law, Sarah would have gotten everything. NYS changed law, bc
when you die, you are presumed to die w/o a will. Procedure is important and it can
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be a burden. Imagine everyone else is dead. At some point, you have to put
together a family tree. The administrative burden to go to ct, becomes overbearing.
You need some final legit reason to distribute this property.
b. At some point you have to cut off the heirs. So, serve both remaining heirs.
Somehow you just have to cut it off
9. This is a little bit weird. NY likes to do things differently. EPTL 1-2.19 defines the
word “will.” Will tells you how to dispose of assets, or not dispose of his estate. But,
what is a relative? This cuts out everyone. So, go to the intestate statute EPTL 4-1.1.
You can disinherit someone but that doesn’t necessarily mean their issue is
disinherited.
C. Testator’s Rights
1. leads us to Shapira
2-6-03 Thurs HW:
Read p. 78-90 cb;
Problems p.82;
Martineau; Shumavon;
Problems p. 89-90
Ch. 2: Intestate Succession
Sec. 3: The Share of Lineal Descendants
I. Intro
A. Principle
1. Any living descendant of the decedent cuts off the right of the descendant’s own
children to inherit.
B. Strict “Per Stirpes” Distribution – don’t have to be living.
1. Divide X’s estate at the generation of children – the generation closest to the
decedent – whether or not any children were actually living at X’s death.
2. advantage: it gives decendant’s the same shares they would have received if the
order of deaths in the family has been normal.
C. Modern “Per Stirpes” Distribution or representation
1. Most states do this, in which the states divide decedent’s property at the closest
generation to the decedent in which there is at least one descendant living.
2. surveys suggest most people prefer this distribution over strict.
D. Uniform Probate Code’s Representation Provision
1. Wagner: all grandchildren who are entitled to share in X’s estate (those whose
parents died before X) should take the same share.
2. Sec. 2-106 Representation – basically surviving descendents in the generation
closest to decedent receive equal shares.
3. This is a significant break with tradition.
4. By representation means a disposition or distribution of property made in the
following manner to persons who take as issue of a deceased ancestor.
a. NY follows this. (EPTL 1-2.16)
E. Problems (p. 82) by representation is NY law
1. note: if all 4 are alive, then each get ¼ either under per stirpes or representation
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a. me: There are 8 shares (the grandchildren, whether alive or dead). So E, F, H, I, J
and K each get $15,000 each. There is $30,000 left for the remaining great-grand
children. Then, each of them would each get $7,500 each
b. class: C gets ¼. Then go down one generation, to see who is alive and who is dead
but left issue. Then you have five shares (E,F,G, H and L). So they slit ¾ of the
remaining estate ¾ X 1/5 is 3/20s. Now have some deceased. At each generation level,
we share equally. Take 3/20ths and divide by three 3/20 X 3 is 1/10.
2.
a. me: B, C and D each get $30,000 each. M, N and O get $10,000 each.
b. class: back to representation. Back to 4 shares. B, C and D each get ¼. Go to A’s
side, who is dead. M, N and O share, divide by three. E, F,G are dead. H, I, J, K and L
each get zero bc they have ancestors who get their share. ¼ X 1/3 = 1/12. You like to
get people closest to the decedent first.
3.
a. me: D would get ¼ of $120,000 or $30,000. The remaining $90,000 would be split
8 ways. So, E, F, I, J, and K would get $11,250 each. The remaining $22,500 would be
split 3 ways as N, O, and P get $7,500 each.
b. class: D gets ¼. Then go to next level, E,F, G, H I,J, and K split the ¾ by 1/7
which is 3/28. Then go down to next level. With 6/28 to work with, split that three
ways between N, O and P, and each get 2/28
4.
a. me: E, G, I, J, K and L get $20,000 each, which represents 6 shares. F’s and H’s
share doesn’t count bc he is dead and didn’t leave behind any decedents.
b. class: A,B,C, and D are all dead so go down to next level. F and H get zero
because they have no surviving heirs.
F. The share of ancestors and collateral heirs
1. most intestate succession statutes give preference to decedent’s parents over
collateral relatives.
G. Problems on p. 83-84
1. class: D would get a third. Then F,G,I,J and K get 2/15 each.
H. Problems on p. 89-90 cb
1.
a. me: P and J would get first shot since they are uncle/aunt and nephew/niece
respectively. The first cousins once removed would get nada.
b. class:
2.
a. me: all to P
b. class:
3.
a. me: it would then all go to N, O and L. Even though they are first cousins once
removed, there are no closer relatives so they get the loot.
b. class: each takes a third. EPTL 4-1.1(a)(7)
4.
a. me: all go to K.
b. class: all goes to K
5.
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a. me: only if L didn’t have any closer relatives.
b. class: X is not the great-grandparent of L? Nobody takes here, even though X is
alive even though it is a third cousin.
i. in NY, it will go to the estate in some instances, even though there are some
relatives still out there.
ii. In NY, first cousins once removed can inherit from decedent under EPTL 41.1(a)(6) but not (a)(7)
II. Martineau (p. 84 cb, p. 48 supp chart)
A. Facts: M died, survived only by an uncle and first cousins. Her nearest survivors
are collaterals. Ct decided estate should be divided into halves since she has both
maternal and paternal cousins.
B. Issue: Whether first cousins of the intestate decedent may share in her estate by
right of representation?
C. Holding: Yes.
D. Reasoning: There is a limitation on the right of any collateral reqlation to take by
right of representation. Uncle feels he should get it all, in that he feels paternal first
cousins have no right to take by representation in the place of their predeceased
parents. But the legislature creates such a right.
E. Policy: First cousins are entitled to share in the paternal moiety by right of
representation.
F. Class:
1. See chart on p. 48 supp. Going to ancestors, and over, to go to collateral heirs.
Statute said you couldn’t go any lower than grandchildren of paternal grandparent. So,
T gets the whole ½ allocated to the maternal side. The rest of the maternal side gets
nothing. U gets screwed.
a. U says I am the upper generation here. I should get my fair share. T gets ½ and the
other 7 cousins getting 1/8 a piece. Most of these statutes are drafted here at guessing
at the testator’s intent. That seems to be the logic behind all of these statutes.
2. Go with lineal descendents, then collateral
a. first, go with issue
b. if no descendents, goes to parents
c. if no parents, goes to parents descendents (siblings)
d. if no siblings, then goes to decendents of grandparents, and then on to descendents
of great-grandparents.
III. Shumavon (p. 49 supp) New York version of Martineau
A. Facts: S died, survived only by first cousins and first cousins once removed.
B. Issue: Whether decedent’s first cousins, once removed, are distributees of the
decedent’s estate?
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C. Holding: No.
D. Reasoning: EPTL 4-1.1(a)(6) is clear and unambiguous. First cousins once
removed have no standing. We can justify this even with the statute’s language about
representation. That representation language is relevant when the issue of the
decedent’s grandparents includes members of two generations.
E. Dissent: Distribution by representation necessarily contemplates distribution to at
least two generations. So, that includes first cousins once removed.
F. Policy: First cousins once removed can not be considered distributees unless there
are no closer relatives.
G. Class:
1. no spouse, no issue, no parents. No issue of parents and no issue of grandparents.
Have 20 paternal 1st cousins once removed and have 3 first cousins.
a. paternal side gets the whole of it. It is cut off where it is bc that is what the statute
says
2. Dissent is like uncle’s argument in Martineau
2-6-03 Thurs Class:
I. Recap
A. NY law
1. if you don’t have a will, the intestate statute only allows passing on property to first
cousins once removed.
2. that is not the same as p. 66.
B. Purposes
1. if testator had drafted a complete will, this is what he would have done.
a. for administrative purposes, we cut it off at some level. We don’t want
administrator checking for years, looking for heirs.
2. Official Forms: SF-1
II. Misc./Overview
A. History
1. decedents used to like to be buried with certain possessions. Gradually, we grew to
a point in U.S., where we give most value on what the decedent’s intent is.
a. that doesn’t mean the decedent has to be smart. D can be mean, selfish, etc.
B. Destruction of property – problem area
1. ct has a problem with this. See Beck.
2. Minn. Case: ct says this just isn’t right; we can’t just destroy this property
3. Valley of the Dolls by Jacqueline Suzanne
a. had clause in her will that she wanted her diaries destroyed to protect her privacy.
Executor destroyed it. Didn’t make sense to IRS. When she died, the diaries existed.
15
b. why did she want to do that? IRS says you deprived us of lots of $ bc they
could’ve sold the diaries for lots of $. Heirs got screwed too. $ does have effect on
other people.
4. Eyreman – wanted her house destroyed. The house and land is worth $20,000. She
wanted house destroyed. That left $5,000. It would cost $4,000 to raze the house.
Leaving $600 remaining.
a. there was no evidence that the heirs really needed the $ but the judge did it
anyway. He said the character of the neighborhood would be affected. He was worried
about the city’s need for housing.
C. Decedent’s intent
1. when D writes a will, he is trying to help himself, or his heirs?
2. focusing on heirs is irrelevant. It is not being written for their benefit. Ds write
them to satisfy their own desires.
a. you can put an animal down if it is dangerous, but you just can’t do it for no reason
at all.
III. Cy pres doctrine
A. Buffalo lawyer
1. Baldy, successful lawyer, wants a new law school in Buffalo. But the time he died,
there already was a law school being built here in Amherst.
2. Can’t have 2 law schools in the same place. Can we have the $ and use it for some
purpose here in the law school? Judge Reagan used the cy pres doctrine.
B. Analysis
1. there must be intent, and it must be impractical to fulfill it. Also, there must be
some charitable intent. Charitable is interpreted in a very loose way.
2. this is a pretty obscure doctrine, but it has been increased dramatically recently due
to some clever lawyering.
2-10-03 Mon HW:
NY Dom Rel Sec. 73 and 117
EPTL 4-1.2
p. 120-125 cb
Problem #3
Rights of Adopted Children
I. NY Dom Rel
A. Sec. 73 – Legitimacy of children born by artificial insemination
1. is deemed to be legit if born by married woman if you get her and the husband’s
consent
B. Sec. 117 – Effect on adoption
1. can’t inherit from his natural parents but can from adoptive parents.
2. adopted children are now strangers to their natural relatives.
II. EPTL 4-1.2
A. Inheritance by non-marital children
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1. still are legit in mom’s family and dad’s family separately
2. must show that father is really the father. Paternity must be shown by clear and
convincing evidence.
III. The Impact of Modern Reproductive Technology (p. 120-125 cb)
A. Brashier
1. when legal and genetic parentage are different, inheritance rights today typically
follow law, not blood
2. UPC Sec. 2-114(a)
a. every person is a child of his or her natural parents regardless of their marital
status.
B. Sperm donors and egg donors
1. sperm donor – doesn’t have the rights of natural father. However, husband of
mother must sign consent form.
C. Deceased donors
1. common law had always assumed that no add’l children could be born to a person
after the person’s death.
2. Now that is out the window, as frozen sperm is now viable
D. Kane v. Superior Ct. (p. 123)
1. case: K died, leaving much to his girlfriend H including control over his frozen
sperm. He had 2 children from former marriage, who are the petitioners here. Judge
was going to destroy it, but H didn’t want it destroyed.
2. holding: H was into her 40s, and her chances of getting pregnant became slimmer
and slimmer so ct gave her some of the vials of sperm.
IV. Problem #3 (p. 3)
A. Who is entitled to what share of D’s estate?
Grandparents
|
Jeremiah
|
Joan
Sally
|
Mom + Dad
|
D + Second Wife
|
|
Sally
Dan
1. me: well Dan would get first dibs since he is the son of D’s second wife. All the
rest are pretty distant. However, Joan would follow as law beats blood. Sally would get
last dibs bc D gave up all rights when Sally was legally adopted by half-uncle.
1. class: no provision in NY law to account for stepchildren. Under these conditions,
Joan takes 100%, assuming Sally is out of the loop IF she can meet EPTL 4-1.2. In
order for Joan to taken on these facts:
a. need court order
b. D has to acknowledge it
17
c. there has to be clear and convincing evidence, a genetic blood marker plus more
- so under these facts, it looks like Joan is out of luck
- different rules if you are a man than if you are a woman. 4-1.1(b)
- Sally is D’s natural daughter. Her adoption by Jeremiah does have some impact.
Adoption statutes do 2 things: (1) adopt them out of family they’re being adopted from
and (2) total adoption into new adopting family. Legis. didn’t want intestate statute
interfering with bond between adopted child and adopted parents. BC she is adopted
and Joan is out, Sally takes everything – she is the only one left here. Jeremiah is not
even close.
- keep the mother in the loop. 3 pronged test under Dom Rel. 117 e2: married to
child’s natural parent, nat grandparent or is descendant from child’s natural
grandparent
2. me: same as above
2. class: Jeremiah is now a woman. In this case, they split. Jenny is a natural first
cousin bc she is a woman. That’s why she is in the loop and Sally is an adopted first
cousin.
3. me: so Sally becomes D’s half-niece instead of D’s half-cousin. This still should
not matter, bc Sally gave up all rights as D’s daughter when adopted by Jeremiah.
However, Joan too is now a half-niece as well.
3. class: Sally takes everything if Jeremiah is the half-brother. Jeremiah is D’s
brother. Joan, still a non-marital daughter, all of those exceptions kick in. Sally is
adopted daughter. Consider “however” clause which says since S is D’s natural
daughter, she takes as a natural daughter. Joan is out, bc of preference for lineal
descendents over collateral descendents.
2-11-03 Tues Class:
I. Harry’s Will continued
A. Policy
1. Shapira used Constitution
a. First Amendment: can make a statement
2. Waste
a. Pace – if you’re close enough to your property, you still can’t destroy it. Waste
for waste’s sake
3. Statute
a. Walker – intestate statute
B. George
1. Harry didn’t want to give $ to family. He was making a statement against war. He
was making a statement re: his family too. George’s best argument: try to effectuate the
intent of Harry
2. argue Cy Pres. At least let me carry out his intent. 8-1.1 of EPTL.
a. in order to do these problems, we will assume that George failed.
|
D
|
|
|
18
D
B
|
E
C
F
II. Distribution
A. Trad’l
B. Modern
1. if there is at least one person living, divide into equal shares.
C. UPC
1. look to the generation nearest to the decedent, where there is a survivor. Then split it.
C gets one third, and D, E and F split the remaining 2/3 by getting .
2. divide estate into as many shares. If A and B are gone, and C is still alive. It doesn’t
matter if C has heirs or not, so long as C is alive. Then divide the remaining 2/3 per
capita.
III. Examples
A. Tradl per stripe – doesn’t exist much anymore.
1. each get third
2. if the ancestors are alive,
B. Representaton
1. each get third
2.
C. ABC are dead
1. by representation – keep going down until there is a generation where at least one
person is alive. Follow the same rule. Count the # of people by that level and divide by
that #.
(Finally see a difference ↓)
C. A dies, B dies
1. under tradl per stirpres, C takes a third, D takes a third, and E and F take a sixth each
a. up until recently, this is how it was mostly done.
2. by representation (UPC), have different rule. C takes a third, and what’s remaining
(two thirds) go to the rest: D, E and F getting 1/3 of that 2/3 or 2/9.
2-13-03 Thurs HW:
I. Seaman (p. 69 supp.)
A. Facts: L, grandfather is married twice. To first wife, he had a son, D. And from
second wife, he had a daughter, R. D and Rare half-siblings. D dies. R then dies, leaving
her half-niece C. However, D was adopted by mother’s second husband.
B. Issue: Whether rt of an adopted-out child to inherit from his natural family extends to
his daughter, P in this proceeding, who is otherwise qualified to inherit under EPTL
4-1.1?
C. Holding: Yes.
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D. Reasoning: EPTL 4-1.1 says half-blooded relatives are to be treated as if they were
relatives of the whole blood. If he had not been adopted out, he would have qualified
as sole distributee since she is his only living issue. Decedent’s rt to inherit is
contingent on her father’s ability to inherit from the natural family. The adopted-out
person here has remained with the natural family unit.
E. Policy: The right of an adopted-out child to inherit from his natural family extends to
his issue who are otherwise qualified to inherit under EPTL 4-1.1. The issue are not
precluded by Dom Rel. Law Sec. 117 from sharing in a natural family members’
estate. P can inherit through her adopted-out father.
F. Class: If Sam dies, she takes to her.
2-13-03 Thurs Class:
I. Recap
A. Type of inheritance plans
1. old per stipres – look at first gen down whether alive or dead
Divide it down
2. new pir stirpes – look at first generation, and then you decide, still very common
3. representation – look at first gen, see who are alive, and then go from there. Used in
NYS
Expanded Family Issues
II. Overview
A. History
1.presumption that your genetic parents are your real parents
B. Modern questions
1. What about children conceived after the death of a father or mother, with artificial
insemination and in vitro fertilization
2. Another issue: children born out of wedlock
3.children born of surrogate mothers.
a. nontrad’l family becomes even more common. Trouble with figuring it out the family
for inheritance purposes
C. Dom. Relations §117
1. the adopt out provision.
2-17-03 Mon HW:
Complete
Problem Set 3
I. Problem Set 3 continued
A. 3 – Sally and Sam
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1. me: Sam can get $, provided his mother had the ability to inherit from the natural
family.
2. class:
B. 4 – adopted grandson
1. me: a1’s share is half, since he moves up a rung. A1 shares the loot with B. I don’t
know what happens to A2. I guess it’d be like if A1 had a son, that son wouldn’t get any
loot either.
2. class: a1 gets ¼ (A and C aren’t dead yet). Alternative is to go 1/3 but that is not how
the statute works.
a. what about if C was the last to die, and you are dividing up his estate. Then B gets ½
and a1 gets ½. A1 gets 1/4 bc A is dead, and a1 inherits under A who has died. Then A1
and a2 splits the ½ meaning, they each get ¼.
C. 5 – domestic partner
1. me: yes, this works
2. class: Gina is just a partner. Dan’s still out bc he’s not a lineal heir. Does adoption by
Gina have any effect? No. When you are adopted out, you’re adopted out. But when the
adopting parent is involved with the natural mother; then you’re ok. Here, under Jacob,
Sally cannot inherit from D. Jacob hasn’t been applied to this situation but at least in Erie
County, with Judge Mattina, at least you have a sympathetic judge.
a. it seems that Gina is the next logical extension of Jacob but that’s not etched in
stone. Another policy consideration is in-family adoptions should be treated differently
from out of family adoption cases.
D. 6 – D wrongful death
1. me: both Dan and Sally could make a legit and best claim, since they did suffer
pecuniary damages. Dan has better chance than Sally though as he was stepson of D and
S had been adopted out.
2. class: issue here is who adopted Sally is irrelevant. If she was not, she would take as a
natural child. Question was whether one can recover for P&S damages? Or wrongful
death claim, in which you can recover for pecuniary damages. Only the distributees are
entitled to recover for pecuniary damages, even if decedent has a will. Not the case in
every state. Sally can sue and get the $, but not Dan.
E. 7 - $10,000
1. me: can’t go to adopted children, but can go to adult children. See Best
2. class: Go to the word “issue”. See EPTL. The same people we began with as before.
Issue is anyone with a common ancestor.
a. Dan is not an issue; Joan is still out bc she is still a non-marital daughter. Plus she is
also a non-lineal heir. Go back to 117 part 2. She is an adopted child, and a member of
such class. In natural relationship before the adoption, if and only if, At first look, it
seems that Sally can take the $10,000.
b. Sally is out as well as Joyce. Haven’t made the requirements of 117 2b of Dom Rel
Law. Nobody takes it.
c. whenever used in statute or instrument, the heirs means distributees, She is a legal
first cousin. So therefore she takes the whole estate bc the $10,000 was an ineffective
disposition. He used the word “heir” in his will, so we see she is a distributee. If Sally
had died, then Sam would take her place.
21
II. Matter of Jacob (p. 77 supp.)
A. Facts: An unmarried couple, one being the natural mother, wanted to have her bf
adopt son. Also, in sep. case, lesbian couple have one of them become artificially
inseminated. The second partner wanted to adopt. In both cases, the natural mother
consented to their partners adopting and being the second parent to the child. Adoption
petitions were denied for lack of standing.
B. Issue: Whether the unmarried partner of a child’s biological mother, whether
heterosexual or homosexual, who is raising the child together with the biological parent,
can become the child’s second parent by means of adoption?
C. Holding: Yes.
D. Reasoning: The adoption statute must be strictly construed. Must be loyal to the
statute’s legislative purpose – the child’s best interest. Permitting these adoptions gives
children a sense of permanency. NY doesn’t prohibit adoption by homosexuals.
E. Dissent: Unlike single and married parent households, each couple here cohabits only
day-to-day, no matter the depth or length of their voluntary arrangements. Their
relationships lack legal permanency and state has not endowed them with benefits and
protections that married and single parent households have. These Ps don’t have standing.
F. Policy: Unmarried adult parents can adopt, and it shouldn’t matter if the would-be
second parents are heterosexual or homosexual, so long as the tentative adoption meets
the best interests of the child test.
G. Class:
1. Was a 4-3 decision. Dissent: statute doesn’t permit this. Policy arguments for
majority here is: looked at when stepparent adopted child. Concern is for the best
interests of the child.
2. This ct overruled the NYS legislature here. So far, there is a big question mark. Jacob
hasn’t been applied to this situation. This is an adoption case, NOT an inheritance case.
a. the problem here is the statute does not permit what Jacob holds. Adoption statutes
should not be construed so liberally. It is not enough that it is fair or unfair, judges want
to make sure they don’t get overruled.
3. Legis. would never pass a law what this case holds, esp. the NYS Senate, which is
more liberal. Some tried to change the law, so the same problem doesn’t arise in the
inheritance field. Politically, it is a little too touchy. Remember this is an adoption case.
a. all this case says is homosexuality will not disqualify a parent.
III. EPTL Sec. 5
A. 5-4.1 – wrongful death
1. can be brought by descendent, or admininstrator against anyone liable for decedent’s
death. SOL is 2 yrs, from time of death. Have 1 yr from time criminal proceeding is
terminated
B. 5-4.4(a)
22
1. award is to be distributed by administrator based on pecuniary injuries suffered.
C. 5-4.5
1. non-marital children
IV. Gonzalez (p. 102 supp.)
A. Facts: Decedent grandmother is tortured and murdered. She had left two adult
grandchildren behind. Grandkids bring wrongful death and P&S claim and win. D
appeals.
B. Issue: Whether adult grandchildren can recover for pecuniary damages, when in fact
they were off living on their own at the time of the decedent’s murder?
C. Holding: Yes.
D. Reasoning: Pecuniary damages can be measured by $. Possible inheritance can be
recovered. Ps status as adult, independent grandchildren does not preclude a recovery.
E. Policy: Adult grandchildren can recover for loss of monetary damages induced by
wrongful death of decedent.
V. EPTL Sec. 1
A. 1-2.10
1. issue includes adopted children
B. 2-1.1
1. heirs, etc. means distributees
C. 2-1.3
1. adopted children and posthumous children are members of class
D. N.Y. Dom. Rel. L. 117 sub. 2 (p. 59 supp)
1. adopted children and their issue thereafter are strangers to any natural relatives
VI. Best (p. 108 supp.)
A. Facts: JB died, gave $ to his daughter A. A then had only one child, but it turns out
she had one out of wedlock.
B. Issue: Whether a child born out of wedlock who is adopted out of his biological
family at birth, is entitled to a share of a trust estate devised by his biological
grandmother to her daughter’s issue?
C. Holding: No.
D. Reasoning: The term issue now includes children born out of wedlock. However,
what respondent, in effect, seeks here is inheritance rights as the issue of both his
biological and his adoptive parents. The adopted child is to be severed from his biological
family, according to the legis.
23
E. Dissent: The term issue includes out of wedlock children, so this child should be able
to inherit. Statute’s purpose is to put adopted child w/I the bloodlines as much as
possible. Sec. 117 wasn’t intended to sever all ties.
F. Policy: Child cannot inherit from both adoptive and biological families.
G. Class: This decided that if an adoptive child, other provisions keep that child out. C of
A sees a statute and if they don’t like what it says, they see that they are stuck.
2-18-03 Tues Class:
I. Dom. Rel Law
A. Sec. 117
1. D is exception to A and B. Covers when bio parent re-marries.
2. E is a little more complicated
a. natural means birth. Adoptive kids can inherit from their siblings.
b. however clause is the double dip clause. It is there for only one purpose: a child who
qualifies to inherit from both natural and adoptive family can only inherit ONCE. This
prevents double dipping.
B. Sec 1
1. only deals with intestacy
C. Sec 2
1. only applies to will.
II. Problem Set 3
A. #3 – Sally has son named Sam. Sally has predeceased D.
1. Jeremiah is dead. Dan doesn’t take $ bc he is a living descendent, not a lineal heir.
Sally is adopted out, by Jeremiah.
2. Joan is out bc she is not marital. Now Sally dies. Does Sam take? Yes, bc he moves
up into Sally’s spot. As a lineal descendent, she’ll take it all to the exclusion of firstcousins.
2-19-03 Weds HW:
Problem 4 and 5
I. Simultaneous Death
A. Make sure to write a will
1. set up a life estate in trust to H or W, then remainder to sister or brother.
II. Estate of Villwock (p. 127)
A. Facts: Roy and June (H&W) are in head-on car crash. R died a few minutes before J.
His will left everything to her. His daughter by previous marriage appeals. Discrepency
as to when he actually died.
B. Issue: Whether R’s time of death is disputable, to the point that he may have died
after not before J?
24
C. Holding: No.
D. Reasoning: The margin for error is narrow. Simultaneous death act is inapplicable.
They did not die at the same time. The fact of the time of death has been adequately
established in this case.
E. Policy: The Simultaneous Death Act is not applicable in a case where a med expert
offers sufficient proof at the time of death.
F. Book notes:
1. st’s simultaneous death act states that the property of each person should be disposed
of as if he or she survived.
2. by requiring an heir to survive for 120 hours, UPC 2-104 is designed both to
effectuate decedent’s intent and to avoid litigation over the precise moment of a
decedent’s death.
II. Advancements
A. UPC 2-109
1. have to acknowledge it as an advancement to have it count against you
2. at common law, no such writing is necessary.
3. Note, you don’t have to give back any of the advancement, if it turns out the amount
of the advancement is more than the amount you’d stand to inherit.
III. Problem 4
A. Me:
1. Well, he total assets of parents at time of death is $105,000. So, each child gets
$52,500. S already has $40,000 (value of blackacre) so his share is $12,500 and D gets
her $52,500.
B. Class:
1. here, have both an advancement and a simultaneous death. Need to look at value of
property at time of death, not at the time of the advancement. With a simultaneous death,
you take ½ and half. So divide by the tenant half and half.
IV. Estate of Baird (p. 132 cb)
A. Facts: Baird filed for bankruptcy after conviction for assault against his wife and
attempted to disclaim his expectancy interest in his mother’s estate before the death of
his mother. Wife became permanently disfigured, and could not work. Since he lost in
the assault case, he didn’t want his inheritance going to pay for the damages. Baird’s
children petitioned probate ct, claiming disclaimer is invalid.
B. Issue: Whether an anticipatory disclaimer of an expectancy interest in an intestate
estate is valid and effective under RCW 11.86?
C. Holding: No.
25
D. Reasoning: Anticipatory disclaimers are not authorized by any law. Doctrine of
relation back is not allowed. No one can have an interest at law or in equity, contingent
or otherwise, in the property of a living person to which one hopes to succeed as heir at
law.
E. Policy: The plain language of the statute does not authorize an anticipatory disclaimer
of an expectancy interest created by intestacy, and affirm the order of the probate ct
declaring the disclaimer invalid.
F. Class:
1. he didn’t have anything to renounce yet. This is a troubling case – where by party
gives up rights he may have. Exchange general releases. People do it in the family
context all the time – like in divorce agreements.
2. Another problem here, is the 2nd wife will be taking the $ to the exclusion of the
children. 2nd wife is a judgment creditor. In effect, you have disinherited 2 kids.
G. Book notes:
1. Cts almost always hold that disclaimed assets do count toward the eligibility
threshold for public assistance.
2. Heirs apparent have a “mere expectancy” – not a property right – before decedent’s
death.
2-20-03 Thurs Class:
I. 117 of Dom Rel L
A. Sec. f
1. rt of inheritance extends to child
B. Sec g
1. rt of inheritance such as it may be
II. Problem Set 5
A. In this case, he did have something to renounce.
1. by using a renunciation, you can in fact, stiff creditors. In this case, you have a
statute that in effect, he is treated as predeceased. Go down to 1st generation, you have
nobody. Go down to next generation, at which there are living heirs, and you have three.
2. only thing he can renounce is his interest, not anyone elses. It is not 1/3 1/3 1/3 but
rather ½ and ¼ and ¼
3. this is one of the quirks of NYS; whereby Bob can defraud his creditors. Could say
where does the Cs go.
D
|
|
Bob
Bill
|
Jill
Beth
Jim
26
B. 1976 amendment
1. in an effort to ameliorate this kind of effect, it is allowed to renounce. I don’t want
my inheritance.
C. Exceptions
1. Medicaid – doesn’t force you to sell your assets, but you do have to disclose your
assets. Govt will pay for you going to NH, but will take a lien on your property. That lien
is the amount govt has shelled out for your care.
a. so the renunciation here would be ineffective. In our example, then Medicaid could
go after children Bill and Beth.
III. Remarriage/combine estates
A. Things that won’t happen but just might
1. do a life estate in trust
2-25-03 Tues HW:
p. 16-27 cb
Simultaneous death/murder
I. Ford v. Ford (p. 16 cb)
A. Facts: George Ford (P) claimed property under his grandmother’s will as the
alternative beneficiary after his grandmother was murdered by his mother Pearl Ford
(D), his mother. Lower ct for P: citing slayer rule: which is a killer should not be
tangibly enriched by the death of her victim.
B. Issue: Whether D should inherit prop. from grandmother, even though she killed her
but was found not criminally responsible?
C. Holding: Yes.
D. Reasoning: Slayer rule is only invoked when killing is felonious and intentional.
Here, killer is not criminally responsible.
E. Dissent: The fact that the state cannot criminally punish an insane defendant is
irrelevant to the demands of equity that she not profit from her crime.
F. Policy: If you are insane, you can still profit from your crime and inherit property
from the victim.
G. Book notes: UPC requires by preponderance of the evidence whether indl could be
found criminally accountable for felonious and intentional killing of decedent, in the
absence of a conviction.
H. Class:
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1. There are certain policy considerations. This focuses on whether what D did was
wrong. Must consider her mental state. Draws distinction between voluntary
manslaughter and involuntary manslaughter.
II. Covert (handout)
A. Facts: Edward shot and killed his wife Kathleen and then turned the gun on himself.
There was a joint will for them. Ed’s family and Kathleen’s family fight over who gets
the inheritance. Her family is trying to cut out his family.
B. Issue: Whether to allow murderous husband’s family to inherit?
C. Holding: Yes.
D. Reasoning: Considers Riggs v. Palmer, which disallows a wrongdoer from profiting
by his or her crime at the expense of the victim’s estate. We have reaffirmed this case
before, but never applied it to the doctrine to cause a wrongdoer’s forfeiture of a vested
property interest. It is not Ed’s family’s fault that Ed killed Kathleen and thus shouldn’t
prevent them from inheriting under this will. Ed’s family was innocent and not the
wrongdoer.
E. Policy: Murderous husband family wins.
F. Class: Remember, this is a will case. This joint will brings up a lot of complications.
There are no kids around, just siblings and parents.
2-25-03 Tues Class:
I. Problem 6:
A. Who gets the $5,000?
1. John gets it under 4-1.1 (a)(5)? This is clearly the husbands. The real battle is over
W’s $10,000.
2. if there wasn’t a murder, H would get it first. Should H be able to profit from his
wrongdoing?
P1
I
John H
P2
I
W Sarah
II. Estate of Schwartz (p. 117, 123 supp)
A. Facts: Mindy and Samuel were married. While in the process of getting a divorce,
she dies. He wants the proceeds to be equitably distributed. Admininstrator of her estate
claims Samuel had a hand in Mindy’s death.
B. Issue: Whether equitable distribution of marital property can be directed where a
party to a divorce proceeding dies during the pendency of the proceeding?
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C. Holding: No.
D. Reasoning: In NY, marriage is considered an economic partnership. However, the rt
to equitable distribution of marital property accrues only upon dissolution or termination
of marriage. The gen rule is that where one party dies prior to a decree dissolving or
terminating the marriage, the proceeding abates. This is not a community property state.
E. Policy: Husband doesn’t get the $.
F. Class:
III. Bobula’s Estate (p. 126, 131 supp)
A. Facts: Joint bank accounts. One took the $ out. The burden was on whether consent
to withdraw more than her ½. Then one (john) kills the joint tenant (his wife) and then
himself.
B. Issue: Whether his estate keeps the $?
C. Holding: No.
D. Reasoning: This is an exception to Lang, which is joint tenant at 50-50. The property
belongs to the wife’s estate.
E. Dissent: (in subsequent appeal). We’d rather give the $ to wife’s estate. No man shall
profit from his wrong. We can’t go back and determine if H was criminally insane,
and thus not guilty, of this murder-suicide.
F. Policy: Estate of the murderer cannot profit from his felonious act.
G. Class: considers joint bank account. The non-contributing joint tenant owns ½. By
depriving him of his own $, how is it he is profiting from his own wrongdoing? If you
want to deter someone, you should deprive him only of half of it.
1. this case may have gone too far.
IV. Matter of Liebman (p. 134 supp)
A. Facts: W takes out more than her ½ of $ from bank account, she holds jointly with H.
H then kills W. H wants the $.
B. Issue: Whether H forfits his ½ of joint bank account with his victim, W?
C. Holding: No.
D. Reasoning: He gets to keep his ½ but doesn’t retain spouse survivorship interest,
which would have enabled him to inherit all of the joint bank account. H, not W’s estate,
has burden of proof on whether he consented to W’s taking out more than ½ of the $ in
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the joint bank account. W said one should not be able to profit from his own wrongful
act.
E. Policy: Since H could get ½ of the $ anyway w/o killing her; he would not profit
from killing her; so he should keep ½ the $ regardless.
F. Class: There is an issue as to whether whatever she took out was she authorized to
take it out? In a murder, what you should lose is your survivorship interest.
V. The Stuart Murder Case (p. 139 supp)
A. Case: Boston case, in which H claims mugger shot his expectant W and himself. W
dies as does baby. Then the truth comes out, H actually did it.
VI. EPTL
A. 5-1.2 - disqualification as surviving spouse
1. if divorce was in effect, or an annulment, or abandonment.
B. 2-1.6(a) – disp. Of prop
1. when there is no evidence otherwise, when 2 people die simultaneously, prop of each
person will be distributed as if they had survived.
C. 4-1.6 - disqualification of joint tenant in certain instances
1. if you are convicted of murder in first or second degree, then you can’t profit from
your own wrongdoing, and can’t receive $ created in joint bank account.
2. prof: this provision left open what happens in other cases on homicide, but also what
do you do in other types of joint tenancies.
a. what happens when a murderer murders, but dies before he is convicted.
VII. Slayer Statutes
A. Most states have them
B. Categories
1. UPC
2. some, like NY, say you can’t profit from your bad behavior
3. some say criminal law is different from civil
a. very few states have this one.
VIII. Article by
A. in front of Linda Kelly’s office
2-26-03 Weds HW:
Continue #6;
Begin #1 and #2.
I. Murder she wrote (handout)
A. Article on Matter of Covert
1. Martin says this case was wrongly decided.
B. C of A decision
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1. even though ct said it won’t employ fiction that Ed predeceased Kathleen, that is
exactly what they do.
2. the gift to Edward is the residuary.
Protection of the Family
Trad’l elective share statutes
Inter vivos trusts – A trust that is created and takes effect during the settlor’s lifetime
II. Sullivan v. Burkin (p. 147)
A. Facts: P brought a complaint in probate ct, by which she sought to have included in
her husband’s estate, the assets of a revocable inter vivos trust as to which he was settler,
sole trustee and income beneficiary with the rt to principal on demand.
B. Issue: Whether to abandon the prior rule?
C. Holding: Yes.
D. Reasoning: Until now the Kirwin case applied. The trust was not testamentary in
character and the H effectively created a valid inter vivos trust. So, in this case, W gets
nothing but in the future, inter vivos trusts $ will be counted as in the estate, and Ws can
get their portion.
E. Policy: The interests of a decedent, who can validly set up trusts, trumps the special
interests of a widow.
G. Class: Mass. trusts
1. allows testator to create an inter vivos trust, and have it treated as an asset, that is not
part of the marital estate at the time of death.
2. this is a weird case; where judge decided in the middle of the game to change the
rules. No state anymore that follows the old Kirwin reasoning. This case left open a
bunch of issues: pre-marriage trusts, rts of third parties;
3. this is what people used to try to do; it no longer works.
H. Book notes:
1. NYS and UPC – take a bright-line approach and simply prescribe a list of inter vivos
transfers whose value must be included in the estate for elective share purposes.
2. The UPC does not permit heirs or estate representatives to elect on the surviving
spouse’s behalf.
III. Riefberg (p. 143 supp) W wins
A. Facts: H died, leaving nearly all to first W. Second W objects to the will. H and W2
had marital problems. She abandoned him. But at time of death, she wants her rt to elect,
and have a corp. trust included into the estate, so she can get a 1/3 of a bigger pie.
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B. Issue: Whether W2 still has rt to elect even though she abandoned him while they
were still technically married? If so, whether corp trust account must be put into the
estate, for W’s rt of elect purposes?
C. Holding: Yes. Yes.
D. Reasoning: To challenge a spouse’s rt of election, more must be shown than a mere
departure from the marital home. Since that has been established, we move on to issue
#2. See EPTL 5-1.1. Since NYS legis has eliminated dowry, we now have spousal rt of
election. Need to consider this an illusory transfer. This buy-sell agreement enabled H a
power to revoke assets that would otherwise go into his estate.
E. Policy: A buy-sell provision of a corp SHs’ agreement to which the decedent was a
party can be a testamentary substitute includable in evaluating the estate against which
the surviving spouse may exercise her statutory rt of election.
F. Class:
1. here, H tried to disinherit current wife (W2); and give it to previous spouse/kids.
IV. Reynolds (p. 149 supp) surviving spouse wins
A. Facts: H and W married. Right before she died, W created a trust, in case she had to
qualify for Medicaid benefits to get a NH bed. She died, and left all her $ to her children
from a previous marriage.
B. Issue: Whether an inter vivos trust, in which a deceased spouse retained a limited
power of appointment, constitutes a testamentary substitute in violation of the surviving
spouse’s rt of election?
C. Holding: Yes.
D. Reasoning: See EPTL 5-1.1 (b)(1)(E). Here, W retained power of appointment,
although limited. She could execute testamentary transfers to just about anyone during
her lifetime.
E. Policy: We are upholding the legis’ intent by protecting surviving spouses from
attempted lifetime evasions of the plain import of the statutory scheme and its balanced
policy.
F. Class:
1. has some interesting language in it.
V. Law
A. EPTL 5-1.1-A – rt of election
1. its all about electing against a will that leaves you nothing as a wife. Under 4-1.1,
this statute gives the daughter her rights.
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2. the statute guarantees the surviving spouse one-third of decedent’s spouse’s estate
outright.
VI. Problem #1 (p. 141)
A. H and W in ’87, and died in ’92; survived by W, B (brother) and D (by a former
marriage)
1. under will, her rts under intestacy; nothing if the will is not valid. This is a will who
describes who his heirs will be. So zero. Will cuts her out. 5-1.1. A gives her $50,000. B
takes the other $100,000. You can disinherit your daughter.
a. you can’t disinherit your wife. Family bible rule will kick in here, and she’d get
those rts as a surviving spouse. W gets $15,000 (the family bible rule); which reduces
estate to $135,000; plus a 1/3 of $135,000 or $50,000. See EPTL 5-1.1-A (a) (2) (i) and
(ii).
2. nothing under 4.1. and the will; so W gets $50,000 again and D takes the rest.
a. we have no idea of his intentions, so we don’t know how to distribute it; so you
distribute it under EPTL 4.1-1
3. 4.1-1 shouldn’t apply at all, bc you have a will that disposes of all of decedent’s
property.
a. 5-1.1-A gives W $50,000 or 1/3 of estate. While this sounds great, you need to
consider what you’re causing by exercising your rt of election. The balance accelerates
to whomever else there is.
b. note, giving $ to your spouse is estate tax deductible, but not if you give it to others!
4. nothing there. Nothing under 5-1.1-A. Her share is $50,000.
2-27-03 Thurs Class:
I. Review Session
A. Sunday at 1 p.m.
II. Disclaimer
A. Rt to disclaim
1. gen rule, is if you go down one generation, they do not have the rt to disclaim. They
are minors, and they are not getting anything.
2. purpose is to shove up stuff back up to the estate so you don’t have to pay taxes
B. 2 generations down:
1. his share will go to his children; in some cases like here minors are allowed to
disclaim, by ct order.
III. Slayer Cases
A. Summary
1. Riggs survives. Covert survives.
B. Covert says:
1. Liebman is the rt decision w/ regard to joint property. You only lose what you don’t
have. If you own moiety in a jt bank acct, you have something. Since you have
something, we’re not going to have you forfeit it simply bc you killed your wife.
2. Like Jacob with adoption, in that it reads out from the statute.
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C. Theories under which they have been denied
1. constructor trust – this is $ that the slayer would get anyway.
D. Riggs
1. grandson killed grandfather to get $ and ct wouldn’t allow it
E. Schwartz
1. a little more difficult case. Equitable assets. The minute I file for divorce, either one
of us is allowed to transfer assets all over the place, to take it out of the marital estate.
2. there is a gain vs. loss notion
a. pre-divorce: if you wan to disinherit a spouse, and want to make sure marital estate
is reduced, gen principle is you are allowed to give away your assets.
F. Bobula
1. tenancy by the entirety – kill your wife; you can’t sever this voluntarily. You do have
a life interest. Under Covert, lets say Edward is in jail, gets out of jail, he could go back
to the marital home and live there. He has a life estate.
G. Liebman
1. you lose your survivorship interest
IV. Joint Bank Accounts
A. Liebman
1. get half and half
B. Covert
1. if you are the slayer, and not convicted for murder, you keep your moiety, but lose
survivorship interest.
C. EPTL 4-1.6
1. if you kill your spouse, and even though you only have rt to moiety, you can get all
the $ that you put in, but not necessarily half. Even though you are only supposed to get
out, what you put in.
2. encourages the wrong kind of behavior:
a. kill your wife, get all your $ back. Controls over Covert.
b. this applies if there is murder 1 or 2; but not necessarily manslaughter
3. “notwithstanding …” – put in there
a. at the end, due to civil rts law.
4. contradicts Lang, and contradicts common sense
V. Simultaneous Death (SD)
- you may know who was shot first, but you don’t know who necessarily died first
A. EPTL 2-1.6
1. in essence, if you have SD, then this kicks in with one exception:
a. if effect of 2-1.6; that a wrongdoer will profit from his own wrongdoing; then Covert
is likely to be applied; just like Jacob is to be applied in adoption inheritance cases.
2. jointly held property; etc. these rules are still good
a. we don’t have a case on this yet.
Right of Election
VI. Overview
34
A. Difficult
B. Sullivan – reasons for right of election
1. surviving spouse has come to rely on the support provided
2. whether there is reliance or not, the two are functioning as an economic partnership.
Even prior rt of election statutes, it was common for divorcing husband to have a duty to
support the ex-wife. This is not a new notion
C. NYS Statutes
1. can’t disinherit your spouse, as a gen rule
a. exception is to really give it away.
2. can’t disinherit your children, as a gen rule
a. in some cases, the law presumes you didn’t really mean to disinherit them
D. EPTL 5-1.1-A rt of election
1. not just the stuff you have in your own name, certain kinds of transfers are
tantamount to no transfers at all.
2. old rule: $10,000 outright and life interest in 1/3 of the estate. What you really have
what amounts to a statutory presumption of a life interest in 1/3 of the estate. Its like a
dower rule.
3. new rule: a life interest in anything is worth zero. Get a choice:
a. dower rule; conceptually, was in effect until 1992.
- even if you die with a will, you can be considered intestate bc intestate statutes cover
if the will is invalid or doesn’t cover everything.
E. NB
1. it is a crime in NYS to fail to disclose a will. A named executor has duty to probate a
will, cases say. So, if there is a will out there, and you chose not to produce, you run the
risk.
2. you are assumed to have died w/o a will, someone has to come and produce it.
F. Joe Robbie, former Dolphins owner.
1. built stadium, then died. Wife took 1/3, but she is waiving rts to any other portion of
the estate; and subjects the estate to taxation immediately. Joe Robbie gave rest to
children. Bc of that nothing that passed to children, was estated taxed, they had to come
up with so money, and couldn’t. Somebody did some poor planning there. Kids had to
sell all of their assets, just so they could pay the estate tax.
a. if she had taken all of it, then she would’ve been taxed. You pay estate tax on the net
assets you’ve inherited.
3-3-03 Mon HW:
Boyd; Ch. 3 to end of chapter
problems
I. Boyd (p. 153 supp)
A. Facts: H died, after the effective date of the new rt of election statute. H had, inter
alia, a life insurance policy, in which he retained the rt to change the beneficiary
designation. It was set to go to current wife, W2.
B. Issue: Whether to apply the laws at the time of the will; or at the time of death?
Whether life insurance Ks, are excluded from list of testamentary substitutes?
35
C. Holding: At time of death. Yes.
D. Reasoning: Testators are presumed to know that laws do change. Ct finds the
decedent’s life insurance Ks could fall w/I the ambit of any K. Life insurance Ks were
not to be considered a testamentary substitute.
E. Policy: The legis intent here was clearly not to include life insurance as a
testamentary substitute.
F. Class: W2 doesn’t have a rt of election with respect to life insurance policy.
II. What would Hilda do?
A. Me (see p. 2 supp.)
1. first, under the cy pres doctrine, we would have to try to do what the decedent, in this
case, Harry wanted. Harry had the rt to change the beneficiary of his life insurance
policy but did not. It was set to go to wife Hilda.
2. secondly, we are to ignore EPTL 4-1.1, which gives spouse $50,000 and one half of
the residue to the spouse.
3. We are to assume that Harry provided formal consideration. Thus we are to treat this
like any other K.
4. Finally, we are to consider Boyd, which said life insurance Ks were not to be
considered as a testamentary substitute.
5. conclusion: it is a K, not a testamentary institute, so it goes into the estate, to become
stones. Hilda doesn’t get it.
B. Class:
Waiver of Elective Share Rights
III. Geddings v. Geddings (p. 169 cb)
A. Facts: H and W marry (2nd time for each). Both had wills, leaving most of $ to
children of previous marriage. H dies. W wants to invoke her rt of election. Estate of H
claims she signed a waiver, waiving that rt. Lower ct: for W. H appeals.
B. Issue: Whether W retains rt of election, even though she had signed a waiver,
waiving that rt?
C. Holding: Yes.
D. Reasoning: Parties have affirmative duty to disclose their financial status; and that
transcends what is normally required for a commercial transaction. Each party has duty
to consider such information before signing a waiver. Here, W had no general
knowledge of the worth of H’s assets.
E. Policy: A surviving spouse who does not receive fair disclosure re: waiver, retains
her rt of election, even though she had purportedly waived it by signing said waiver.
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F. Book notes:
1. note, that the agreement Mrs G signed recited that each spouse had made full, fair
and complete disclosure to the other.
G. Class:
1. if you are going to waive it, you have to have complete information. In Davis, there
was no fraud? A marital relationship entails more trust than just a business decision.
2. if this was decided in a UPC state, would it have been decided in the same way?
a. antenuptial agreement is a K, and these waiver issues arise. Davis – no disclosure is
necessary.
3-4-03 Tues Class:
I. Distribution of Harry’s Estate
A. Problems
1. don’t rely on will in order to change beneficiary of life insurance
B. 1930
1. took away dower and curtesy; and replaced it with a statutory right of election; which
is an rt to elect against a decedent’s estate
a. obvious contingency in any rt of election: what is available to you at time of
decedent’s death. Strategy to disinherit spouse: get your property out of your estate.
2. So, how do you define the estate? Like how IRS does it?
a. go from vested interest under dower and courtesy to contingency interest under rt of
election; provided there is an estate.
b. effectively, many decedents could disinherit their spouse.
3. in 1992, NYS overhauled laws, whereby spouse gets $50,000 or 1/3 of the estate.
C. Rt of election
1. it is added up assets prior to or after the marriage, like life insurance
2. it is not like equitable distribution.
D. Life Insurance
1. ct of a: Reynolds says meaningful control is the standard vs Boyd. Boyd was first
case, and there are 4 or 5 others that say life insurance is out; bc that was the deal.
2. deal: NYS legislators said L.I. is out. Follow the plain meaning of the statute. See
Boyd.
3. if you leave it out, wife gets 100%. If it goes in, then spouse will only get a 1/3.
a. problem is this is counterintuitive.
4. Most ins. policies say if ultimate beneficiary is not around, then life ins. benefit goes
to the estate. If that happens, you run the risk of putting something IN to the rt of
election; it becomes a probate asset. Make sure you have someone who will be around at
the time of death.
a. see this in retirement funds too
E. Bank account in own name
1.
F. Joint bank account
1. she can do the rt of election here.
G. Pension death benefit
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1. see (G). Tough to disinherit spouse under pension death benefit. (a)(11) One
retirement plan it does not apply to is IRAs, which is a big one. Same is true for Roth
IRA, which is funded post-tax. Most IRAs are funded pre-tax.
a. virtually all a11 plans are IRA plans. If it was IRA plan instead, you’d only cour.
Retirement plan itself is ? IRA plan is a testamentary substitute.
H. Clothing
1. due to the family bible rule, this rule keeps these assets out of the estate.
3-4-03 HW:
I. Ch. 3 continued
A. UPC sec. 2-213
1. waiver of right to elect
Other protections for the surviving spouse
I. Homestead allowance
A. exempt from creditors
1. the remaining spouse remains entitled to
B.UPC
1. entitled to $15,000 homestead exemption
II. Community property system
A. Definition
1. assumes the property acquired during the marriage is the product of joint efforts of
the H and W. Each therefore is entitled to a half share.
Protection of Children
III. Estate of Glomset (p. 181 cb)
A. Facts: H and W made joint wills giving each other the $, except if it was a joint
disaster, it was to go to their son. Daughter was not named in the will. No intent to
disinherit was found.
B. Issue: Whether decedents intended to leave out daughter, and give everything to son?
C. Holding: No.
D. Reasoning: True, H never mentions the daughter, but also doesn’t mention why he
excluded her. Presumption that children are not intentionally omitted from a will.
E. Dissent: She never visited him, nor allowed her children to see him. There was a
strained relationship here.
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G. Policy: If a will which fails to mention one of the testator’s children is unambiguous
on its face, extrinsic evidence may not be admitted for the purpose of proving that
testator’s omission was deliberate.
H. Book notes: in most jurisdictions that use Mass-type statutes, extrinsic evidence is
admissible to prove that the omission was intentional.
1. most American jurisdictions purport to give testators complete freedom to disinherit
their children, so long as they do so explicitly.
I. Class notes:
1. you can’t bring extrinsic evidence in to determine what a will means. These rules are
out there.
IV. Davis (p. 159 supp) W lost
A. Facts: H and W sign antenuptual agreement. H fails to disclose exactly how much he
is worth. She sues, as she had waived her rt of election.
B. Issue: Whether the wife’s waiver of the rt to take is vacated bc H did not tell his wife
how much he was worth when agreement was signed?
C. Holding: No.
D. Reasoning: This was her idea in the first place, for them to sign waivers. No proof of
fraud or deception here.
E. Policy: No disclosure is necessary, as long as there is no fraud.
F. Class: no disclosure is necessary, as long as there is no fraud.
1. This is a $300,000 estate 35 years ago. Here the W lost bc she is the one who wanted
it. She wanted them to give up their rt of election. Also, she had some skills as a
businesswoman.
V. Greiff (p. 163 supp) W wins
A. Facts: H and W married each other when they were senior citizens. Both signed
waiver of rts agreements. H died, leaving $ to children of previous marriage.
B. Issue: Whether the special relationship between betrothed parties when they execute
a prenuptial agreement can warrant a shift of the burden of persuasion bearing on its
legality and enforceability?
C. Holding: Yes.
D. Reasoning: When parties are in a relationship of trust, a special burden may be
shifted to the party in whom the trust is reposed. That party must show that no undue
influence is used.
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E. Policy: H must show that everything is on the up and up even though H is the nonmoving party.
F. Class:
1. a prenup is a K, so typical K provisions apply. If a K in induced by fraud, and the
fraudulent K is void, and thus has no effect.
2. thought to be a benefit for the spouse. The burden of proof stays with the person who
has the fiduciary duty. It is very easy to forget about the burden of proof – which follows
the idea of who’s got the information.
a. this has some burden of going forward on the challenging spouse.
VI. EPTL
A. 5-1.1-1(e)
1. procedure for the rt of election (p. E-52)
a.
B. 5-3.2
1. revocatory effect of birth of child after execution of will.
VII. Problem #2
B. A-T
1. a me: no, bc he didn’t account for after-born children in his will
a class: We don’t know what the will says, just know that there is one. EPTL 5-3.2
applies only to child. A1 is an issue but not a child. Statute says child, not issue. Is A an
after-born child? No. What are A’s rights? 2 problems: child issue and the after-born
issue. 2 flaws: A himself is NOT an after-born child, bc A was born before the execution
of the will. If A has no rts, how much rts does A1 have?
2. b me: yes, bc if at least one after-born child is named in the will, all other such afterborn children must receive a piece of the pie as well.
b. class: A is an after-born child. Does A1 inherit A’s rights? Horst – at least one
generation down, A1 has rights under A. Strange but true – much like Jacob is a judicial
exception. Normally, since A is an after-born child. There is nothing in EPTL 5-3.2 about
the age of the child. The child could be 92 years old. Age is irrelevant. Applies if child is
marital or non-marital; adopted or otherwise.
- here you’ll be able to argue policy here. Threshold: judge will want to see that the
testator has thought about the child somehow. Like a life insurance policy. If you can
meet that threshold, you have a shot at getting out of 5-3.2.
3-6-03 Thurs Class:
I. Chart for Hilda: Rt. of Election Share
A
B
Pro
Test
Estate Sub.
Cy Pres Doc. 100
1225
C
D
E
Total Elect. Intes
Estate Share for W
(E.S.)
2225 74.2 0
40
F
G
Will Test
for W Sub
0
H
I
Total Net
Reduct E.S.
for W
112.5 112.5 0
Intestacy same 100
1225
2225
74.2
75
112.5 1875
A. Explanation
1. after all this, she’ll get zero under rt of election. She was entitled to 1/3;
B. Intestacy
1. E is 75
2. G: still gets tottenham trust, and tenancy by the entirities
3. in either case, when you go through this case, she’ll end up with the same thing: zero.
II. Another example
A. Probate 100
Totten 200
300
3
100
0 - Will
0 - Intestacy
0 – TS (abs)
Will –
1. Analysis – gets nothing in intestacy bc all of the assets are disposed of. T.S. – she gets
none. There is no offset. She gets rt of election. As long as surviving spouse gets 1/3; it is
up to the beneficiary how that gets done.
a. this is how it works. This is classic way of spouse tries to disinherit, and how it is
stopped. Doesn’t come up in tenancy by the entirety.
B. Probate: 200
100
300
3
100
1. What is her share of intestacy? Same: zero. We have a wrinkle here. If you run the
#s, it doesn’t matter if she challenges the will or not. In this case, it will work a little
differently. EPTL 4-1.1. is the property of the decedent. If she gets this will thrown out,
her rt of election is against 200. So if there is no will, she gets 50 plus half the rest.
a. if there is no will, she gets one and ¼. If you are representing her and see all of this,
have to look at this very carefully, and see whether it is valid. You might try to take
examples you have used, and plug in new #s. There are 4 questions on the final.
III. Notes
A. Rt of election problems
1. like when there is a second marriage. Have people who disinherit a spouse or gives
everything to charity.
2. if you have a client who wants to do that, then you have a rt of election analysis you
have to go through. There is no charity exception.
B. EPTL 4-1.1 b f (p. E-57)
1. give $ away to charity, with power to appoint the income interest:
41
a. (ii) kicks back $ into the estate.
C. Who gets this rt of election?
1. spouse of a NY domiciliary regardless of where the spouse lives.
2. NY: doesn’t recognize common-law marriages, unless recognized in the jurisdiction
where the couple is from, like say Pa.
D. Under 4A (p. E-55)
1. if spouse exercises rt of election, the electing spouse is treated on the same day, she
accelerated the remainder interests who could not take advantage of the marital tax
breaks.
a. if you have a spouse who wants to elect, make sure you are aware of the tax
consequences bc you may be screwing your kids in the process.
IV. EPTL 5-1.1.-A
A. Prenup
1. you better have full disclosure esp. if you want to exercise rt of election.
2. as a matter of good practice, you also want to be concerned about proof that the $ is
all his.
B. Richard Rainwater
1. venture capitalist, who married a first-rate investment banker.
2. second marriage for both of them. She is credited with doubling his worth.
a. she probably knew more than he did.
3. go back to old K issues like:
a. capacity
b. does she have a drinking problem?
C. Boozin?
1. judge came up with a list:
a. detrimental reliance on spouse
b. formality of ceremony
c. full disclosure
d. presence of sep and independent counsel.
e. what provisions there are for the poorer spouse.
D. Bill introduced in last year’s legis.
1. require that spouse is given a fair and reasonable disclosure before signing a waiver
of right of election. This shows that NYS is getting a little closer to UPC.
E. Question #3 from last year’s exam
1.
F. Hypo
1. kid comes in, says I was disinherited, and father-decedent gave $ to his girlfriend,
whom he is living with. 5 kids are young and need to be supportive. Do have family bible
rule which is $15,000. So, you are kind’ve stuck.
a. if the father was alive, what would be duty of support? Does it end at death? Yes, but
there is an intestacy statute that provides for that. So, you have got an idea.
2. Jacob – cts are not unwilling to take a look at underlying statutory principles and
extend them, like in a 4-1.1 case. Things that are important today are different from 100
years ago.
42
3-17-03 Mon HW:
Problem #3 (p. 142 supp)
Read Ch. 4 sec 1 (p. 193 cb)
Except Zhao
I
X
T-W
I
I
Y
I
Z (14)
I. Problem #3 (p. 142)
A. T leaves everything to W
1. me: Even after reading L.W.K., I feel this will is okay. It doesn’t mention the children
by name. However, T and W are presumably still married, at the time of death, so I
presume W will in fact take care of everything, including support their child Z who is
only 14 yrs old. There is certainly enough ($10,000) to go around. Under DEL26: Z
would get $. Under 5-3.2, Z would still get nothing.
2. class: Take care of everything, that is very vague. W/o Glomset, you could bring in
extrinsic evidence. Does everything mean kids? Is Z provided for? There is the dispute.
Whether he’s mentioned or not, he is out. Either everything includes him, or see b, in
which the others are mentioned.
i. under DEL26: even though other kids didn’t take, Z would still get his EPTL 4-1.1
share. 1/3 of $25,000. Surviving spouse takes half? Of $100,000 plus ? then Z would get
1/3 of $25,000 or roughly $8,333. X and Y have to wait until W dies. T may have
intended this result – maybe X and Y are independently wealthy, or they are evil.
B. x and y $1, rest to W:
1. me: this would not work. See L.W.K. which holds that you cannot disinherit a child if
there is a support order. Granted, here there is not one. So maybe this would work. It is
okay to leave x and y with $1, bc they are now adults. I am not sure about this one. Under
DEL26, he’d get a $1? Under 5-3.2, still get $1.
2. class: Looks like a technical after-born child. Could get 1/3 of $2. See EPTL 53.2(a)(1)(B)(i). So, each child gets $0.66. This comes from a real case. As a result, see
para (iii): if you can convince the judge there is something screwy here, maybe you can
get Z his testamentary share. It is discretionary.
C. T leaves life estate in all property to W, remainder to X and Y
1. me: I don’t think he can do it because he left out Z altogether. Under DEL26, he’d get
a third of the remainder of the property to be split equally with siblings X and Y. Under
5-3.2, Z would get same.
2. class: this is a trick question. This might show up on exam. Would want to know if
there is a settlement re: Z? Assume no. He has not been provided for under the will and Z
is an after-born child. W gets life estate in property but can exercise her rt of election,
either gets $50,000 or 1/3 whichever is greater. Under 5-1.1(A); then she uses her rt to
elect, and she is considered pre-deceased. That accelerates the process. X and Y take
everything half and half.
a. (iii) gives after-born rt to testamentary share is the share otherwise would be
“limited.”
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D. Class example:
1. T just wants to disinherit his kids. He had 2 kids, then makes will and then has a third
child. If there had been no will, spouse takes half plus 1/3 of what remains. Then children
could get their share as well.
II. L.W.K. (p. 167)
A. Facts: Father died, leaving two children, one adult and one child. He was required to
pay child support to child. Wrote will to disinherit child. Yet, mother was the sole
supporter of said child.
B. Issue: Whether a father can disinherit a child in a will, when child has support order
against the father? Whether an order to secure postminority educational support may be
made posthumously?
C. Holding: No. No.
D. Reasoning: A parent charged with an obligation to support his child cannot nullify
that legal obligation by disinheriting his child. It makes no difference that the child was
born out of wedlock. Beyond satisfaction of that support order, though, father can
disinherit child. Father’s support obligation can be satisfied from the assets of his inter
vivos trust.
Mom will be almost 60 when child enters college. Posthumous modification of an
alimony award is permitted. Here there has been a substantial change in circumstances.
E. Dissent: Support obligation should survive father’s death ONLY if judge has
specifically provided for it.
F. Policy: Death does not extinguish a duty to support but you can disinherit child after
all support payments are made. If it is desirable to continue support past 18, it is a policy
for the legis and not the courts to make.
III. EPTL 3-2.1 – Execution and attestation of wills, formal requirements
A. every will must be in writing
1. testator has to put his address on it?
2. there shall be at least 2 attesting witnesses. Both must sign will w/i 30 days.
Ch. 4: Wills
Sec. I: Execution of Wills
I. Intro
A. Wills – not as many formalities
1. however, consider Texas
2. Statute of Wills has 4 functions:
a. protective
b. ritual
c. evidentiary
44
d. channeling
3-18-03 Tues Class:
I. A-11 plan
A. Generally
1. a defined benefit plan in an A-11 plan. It is a $ purchase plan. 401(K) plan or profitsharing plans are testamentary substitutes.
2. won’t need to know it for the test.
3. computers can be used for the exam. Can bring in any materials you want.
4. pick up Weinman case in Linda Kelly’s office.
5. pick review session date next time (some time in April).
II. Review
A. Chart formula:
1. A + B = C /3 = D
E+F+G=H
I=D–H
B. Testamentary substitute
1. tenancy by entirety – by operation of law, not only does she get her half, but gets his
half too. However, a bank acct in his name, she doesn’t get under the will. That is
supposed to go into the river.
2. joint bank acct – she is not taking other half of it by law. She might have rt to elect to
get it, but she doesn’t get it automatically.
C. NY law
1. doesn’t require in pre-nup, that the person have full disclosure. There is a whole
bunch of factors.
2. statute is unlikely to pass this year. If you are writing some waiver of rts, For a long
tim until Gripe, it was not clear if an engaged couple has a fiduciary relationship to each
other. What type, depends on their assets, who pointed a gun, etc. In order to trigger what
goes along with a fid relationship, the person raising a defense must show some level of
proof as to whether to consider undue influence should be addressed at all.
a. you just can’t show up and say I didn’t get disclosure, so I should get something.
D. Pre-admitted heir
1. definition: an after-born child. Mr. T has a child and then he writes his will, He
mentions A but doesn’t say a word about B. Is B an after-born child? No, which means
he has no rts under E.P.T.L. 5-3.2
a. the statute says you can be an after-born child, but only if you are unprovided for in
any settlement. Day 1, write will; day 2 have a child and Day 3 buy life ins. policy for
child. Is that a settlement? It doesn’t depend on the will.
b. Settlement – some acknowledgement of this kid, and set aside some $. This is good
enough to take child out of the after-born statute.Legis. has stepped in: “We’re sure if you
thought about this, you would have included your after-born child into your estate
somehow.” Settlement includes totten trust too.
c. what is common in a well-drafted will, I don’t intend to include anyone born after the
date of this will. If you are not mentioned, you have rts under 5-3.2.
45
2. 4 requirements:
a. born after execution of will
b. survive the decedent
c. not mentioned in the will
d. no settlement
3. the law is very unforgiving. Settlement, etc. are given the broadest interpretation
possible. This is for policy reasons. “Any person not named in this will” is good enough.
III. Example:
A. T dies. Leaves children and a girlfriend.
T
I
A
2
B
4
C
6
D
8
E
10
B. Analysis:
1. consider family bible rule, and they get furniture, car. See EPTL 5-3.1. They can take
the car, and turn around and sell it.
2. There is a duty to support. There is a pre-death and post-death duty to support. See
L.W.K. If you are looking for some way to get some $. Have a claim against the estate for
unpaid support obligations. In Mass, get post-death. It is the only state that awards postdeath support. Mass. has always been backward in how they draft their estate laws.
a. so Mass, have a bunch of hit or miss decisions.
b. in NY, your duty to support does end when you die.
3. Glomset – you can’t bring in extrinsic evidence to determine what a will means. Can
only look to the 4 corners of the will.
3-20-03 Thurs HW:
Continue with Ch. 4
- some feel estate and will law is too formal. Give people a little credit.
I. Morris v. West (p. 196 cb)
A. Facts: D had set up a will. D signed the will. Daughter and grandson of D had
contested it, bc a 1/3 had been given to ex-husband.
B. Issue: Whether two witnesses who purported to witness the will, in fact saw it
happen?
C. Holding: No.
D. Reasoning: Burden of proof is by a preponderance of the evidence. Witnesses must
sign their names in the presence of the testator. All T had to do was walk down the hall to
witness the witnesses signing will.
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E. Policy: To be within the testator’s presence, the attestation of a will must occur where
the testator is able to see it from his actual position at the time.
F. Book notes:
G. Class notes:
1. at least procedurally, was this done properly? Yes, it looks okay. What was his intent?
You have to sign in front of the testator, and they didn’t do that. T paid bc his stated
intention wasn’t fulfilled.
a. judge began to wonder whether decedent would have left $ for his ex son-in-law.
2. provision – if there is a lot of $, people will start to read these provisions very
carefully.
II. Questions:
A. Question 1: how would this be decided in NY?
1. me: The will would have gone through, under cy pres doctrine.
2. class: in NY, we would not get the same result.
B. Signature requirement
1. me:
2. class: one wants to leave all of his property to wife, etc. it is very difficult for him to
sign it. It does in fact have to be signed.
a. You could use a different kind of mark, like X. It just has to be his signature.
b. what is another way? You can assist.
c. get a proxy – you sign their name, close to b. If you do it, then you can’t sign as a
witness, but rather sign as a proxy. If you don’t sign your own name, you have not
created your own will.
- given that we have a proxy rule, one might accuse another of not being a witness, but
being a proxy instead.
C. Location of the signature
1.
2. class: NY does not adopt the dreary minority view entirely. What happens with
material that appears AFTER the testator’s signature? It is out except if will is so
incomplete that w/o the add’l info, the will is incomprehensible. Does what follow the
signature have any effect on what preceded the signature.
a. is it safe to say you know who he is giving his assets to? Glomset or not, this will be
tough to ignore: this is right in the statute. It doesn’t make post-signature info effective,
but it might invalidate part of the pre-signature stuff.
b. NY is basically a dreary min. state, with this one exception. UPC provides that you
can put the signature anywhere.
D. Execution ceremony
1. ceremony in which T is asked is this your will, is this your signature
2. the witnesses cannot be the assistant or the proxy. Witnesses must show they’re
disinterested.
3. the witnesses must be requested. Witnesses have to be asked to be witnesses. A1a4 –
there shall be at least 2 attesting witnesses.
47
i.e. Jan 1 – signs will; Feb 15 – goes to witness I want you to be witness and Feb. 28 he
does the same thing to witness #2. It is a valid will. It doesn’t have to be w/I 30 days of T
signing, but rather the witnesses must sign within 30 days of each other.
4. what else is going on during the ceremony? It can take 59 days to go through. You
don’t want to have interested people in there.
a. as lawyer, must make sure there are no other heirs out there that could possibly make
a claim. Want to make sure the will is correct, and want to prevent possible future
litigation. Since you are a lawyer, there is a rebuttable presumption that the will
formalities have been observed.
5. Does the will have to have an attestation clause? An attestation clause is something
witnesses sign, attesting to the fact that this is their signatures, etc.
6. technically, a person could give you a grocery bill and say this is my will, sign it, you
can sign it. Witness doesn’t need to attest to the validity of the will, only that the testator
signed it. You’d have some explaining to do though, it will be harder to probate the will.
7. Is it a good idea to have T initial every page? Some say yes bc it shows that no one
has switched pages on you. On the other hand, someone might argue that the mark at the
end of page 1 is in fact his signature, so everything else after it is invalid.
8. guy signs will and realized a mistake in the will. He changes a 1 to a 2 when you’re
not looking, and then he initials it. Anything added afterwards does not have legal effect.
Since it is matter following, occurring after the fact, you run the risk of jeopardizing the
will. So either you have to re-do the will, or do a codicil.
NY – does not follow a substantial compliance rule.
Next class – go through these cases and problems
3-20-03 Thurs Class:
T
I
A
50
X
100
B
300
C
100
D
50
T
I
Y
Jag
E
83+
F
83+
Z (AB)
Z is after-born. If you can’t reach some resolution, Z will take some interest in the jag.
Pre-admitted heirs, after-born children
Wills
I.Overview
A. Very technical.
1. you can’t screw it up.
B. Definition?
48
1. what does it supposed to do? You want to express where you want your property to
go when you die.
C. Why the formalities?
1. we want a process, some regularity in the system.
2. need to verify intent, and prevent fraud
3. some process by which someone is expressing their intent, and there is no undue
influence.
a. it is quite common, where children might want to exert their influence to get more $.
D. NY:
1. need witness, etc. bc otherwise every scrap of paper, is arguably a will, and begins to
offend our sense of process.
E. Gruen
1. what if instead of writing a letter, D created a trust. It is a revocable trust, so I can
change my mind.
2. see p. 197 supp. A trust would prob work to pass that painting along.
3. then you begin to wonder why we have all these screwball wills
F. EPTL 3-2.1
1. has to be signed by the testator at the end (a)(1). Same with the witnesses. Who is
really signing at the end? Which one really signs at the end? Both have to sign at the end.
2. some of these requirements are pretty crazy.
G. What would you do to ensure you’re ok?
1. don’t have T take the will. Hold on to it, or go to Surrogate’s Ct to deposit it. Don’t
put it into a safety deposit box.
2. you can staple it, so then you can see if another page has been added or removed.
You can # it. Although most wills are not contested, some are.
a. exercise some judgment in who your witnesses will be.
3-25-03 Tues Class:
Wills
I. Wills Process
A. Witnesses
1. very important they understand the testator
2. as lawyer, ask questions in front of the witnesses
3. they do not need to read the will. Except in case of close family members, I never let
them read the will.
4. as lawyer, you have to check to make sure they sign their own name.
B. Codicil
1. it is in fact a will. Execute to correct a mistake in the will.
C. 30-day rule
1. 2 witnesses themselves have to sign within 30 days of each other, in order for the
will to be valid.
D. Pre-printed forms say:
1. 2 witnesses are signing in the presence not only of the testator, but each other as
well. So, cross those words out.
49
2. Prof: create your own forms whenever possible. You’ll know what they say, and
what the gaps are.
E. Caution:
1. don’t unstaple and make copies bc then you’re credibility is shot. Have it stapled
before its signed. If there is a mistake, tear it up and start over.
2. Could leave the will with Surrogate’s Ct, or give it to the testator.
II. Interested Witnesses
A. P. 183
a. A and B get zero, zero,
b. AB and E are witnesses. A’s will is valid, and it passes. Don’t know if this will work
until the testator dies. You need 2 witnesses except in those cases when you only need
one. They might need A’s testimony to prove that will. Don’t think you’re safe. You
have to wait till testator dies and see who’s still living.
c. does X take? Any attesting witness’s who is void, and entitled to be distributee, while
it is technically void, it comes back in under 3-3.2(a)(3).
- the whole estate is $36,000. So, his intestate share is 1/3 but he only gets $10,000 bc
that is as much as the will would have given him.
- reason for rule: if witness is interested in will, the witness might not be motivated to
tell the truth. You have to go through that step. You’re more inclined to lie if you’re
going to take. If you carry that out to the extreme, then you’ll get …incentive only works
one way, that you’ll lie in favor of a will that benefits you but not the other way.
d. so how much does Y take? Same rule, a3 will give him 12. the extra 3 will drop
down to Z.
e. Z is the witness. In this case, his bequest is also voided. This rule works to bring back
what he would have gotten otherwise. It is an open question until death, bc that is when
you know how much is in the residuary. Here, it is $36,000.
f. what happens to the $26,000? $12 would go to Z, and remainder would be treated as
if testator died intestate. If T had died w/o a share, Z would get 1/3. Another alternative,
instead of pre-deceasing, he is simply not allowed to take bc of the rule. Then the 1/3
would go to Y. What is the purpose of the rule? To encourage people not to lie about the
will, etc.
i. if you take pre-deceased approach, you are not satisfying the rule. The better answer
is X would lose the bequest altogether. Ct. of A: has not ruled on this.
B. Prof example:
S
$1
T
I
GC
$1
X
$1 million
1. witnesses are X and maybe the lawyer. What happens to X? Here is an example that
could go contrary to interest of testator. X clearly wanted to benefit someone else. The
rule works to contradict the will of the testator. So, S would get it all under intestacy
rules.
50
I. Ranney (p. 207 cb)
A. Facts: P contested the probate of her late H’s will bc will’s 2 witnesses only signed
an attached self-proving affidavit but not the will itself.
B. Issue: If witnesses sign a self-proving affidavit but do not sign the will or an
attestation clause, must clear and convincing evidence of their intent to attest the will be
shown in order to validate the will?
C. Holding: Yes.
D. Reasoning: Signatures of witnesses on a self-proving affidavit do not literally comply
with the attestation requirements of state law. There must be sub compliance though.
E. Policy: Self-proving affidavits will work, if proven by clear and convincing evidence.
F. Class: if you sub compliy with test formalities, you will be ok. It is dangerous to think
NY has adopted a sub. compliance standard. You have the Frank case.
1. See Snide, where lawyer screwed up H and W’s wills and gave them to each other,
which they signed. Judge refused to apply this rule. H and W didn’t sign their wills, they
signed each others. Reason: witnesses said everything else about the will ceremony was
fine.
II. Frank (p. 185 supp.)
A. Facts: Decedent’s daughters object to having will go to probate. Residuary legaltee
wants will to go to probate. Witnesses had not actually signed the will.
B. Issue: Whether decedent’s declaring this was his last will and testament is sufficient
to satisfy requirement of an express declaration?
C. Holding: Yes.
D. Reasoning: Will was duly executed. D did request witnesses sign will.
E. Policy: Witnesses can still be considered witnesses even if they don’t sign the will, so
long as declarant had requested they sign the will.
1. note: 4th dept. reversed this.
F. Class: Deals with sub. compliance in a different way. T declared this to be his will.
There is nothing wrong with this case. Prof: many will executions, and vary often the T
says very little bc he doesn’t know what to say.
1. we have a loose substantial compliance rule in New York.
III. Pirozzi (p. 187 supp.)
A. Facts: One child wanted will to go to probate; other children didn’t. 3 witnesses had
signed what was purported to be D’s will.
51
B. Issue: Whether will is invalid due to D’s lack of due execution, lack of testamentary
capacity, etc. for failing to publish that this was her LW&T?
C. Holding: Yes.
D. Reasoning: The ct. properly considered circumstances surrounding execution of will.
Burden of proving due execution lies with petitioner, who wants will to go to probate.
Publication can be through words or actions, but something must occur to show that
there had been a meeting of the minds.
E. Policy: You need to show publication that this was D’s LW&T before witnesses to
get will to probate.
F. Class: He didn’t publish his intentions.
IV. Bernatowicz (p. 189 supp)
A. Facts: D tried to sign his own name to will, but could not bc he was so ill. Proponent
helped D sign his will.
B. Issue: Whether attorney’s requesting another to help D sign will renders said will
invalid?
C. Holding: No.
D. Reasoning: The act of signing was the act of the decedent. It was assisted rather than
controlled.
E. Dissent: D himself did not ask for assistance, attorney had suggested it.
F. Policy: D can declare it his LW&T before he actually signs the will, and it’ll still be
valid.
G. Class: Difference between helping T sign a will, and signing one in proxy.
V. Pascale (p. 192 supp)
A. Facts: This is a legal malpractice action in which W’s nieces and nephews did not
receive as much as they wanted in their wills. H and W said they were going to revoke
their wills, but their attorneys failed to include such language their will. H and W
subsequently changed their wills, and gave more $ to their children.
B. Issue: Whether attorneys were negligent in failing to include language that the H and
W wanted in their wills?
C. Holding: No.
52
D. Reasoning: The lack of privity between any legaltee under D’s will and the movants
precludes the legaltees from recovering damages based upon movant’s alleged
malpractice in rendering legal services to decedent in the drafting of her will. Absent
fraud, collusion, malicious acts or other special circumstances, attorneys are not liable to
third parties. s
E. Policy: Beneficiary has no standing to sue their lawyer.
F. Class:
1. in K, when you have a 3rd-party beneficiary, they may not know they are the
beneficiary. This is not pure K.
2. What happens if testator writes a will and he discovers there is an error in the will?
Then, you discover the testator is incompetent.
3. might want to impose a liability on lawyers for drafting a will. Policy reasons going
back and forth.
4. See p. 36 – Viscardi v. Lerner. one of them that doesn’t favor rule is NY.
VI. Weyman (handout)
A. Facts: T had “will” consisting of 3 pieces of paper stapled together. Witnesses and T
signed on one page but not the last page.
B. Issue: Whether the will was “signed at the end there of” by T and witnesses as
required by EPTL Sec. 3-2.1?
C. Holding: No.
D. Reasoning: This instrument is not signed at the end by T and witnesses. The separate
dispositive instrument must fail. An unattested paper which is of a testamentary nature
cannot be taken as a part of the will even though referred to by that instrument. Will goes
to probate except for last part, which reads see attached.
E. Policy: If you want to validly change a will, don’t just staple a piece of paper to the
end: rather, complete a codicil.
F. Class: A lot of Ts want to do this. Sign a simple will and attach a piece of paper later.
This will not work.
-do up to 1 and 2 on p. 198-199
Weds 3-26-03 HW:
Read p. 323-327 cb
p. 315-323 cb
p. 330-336 cb
probs 1 and 2 on p. 198-199
Ch. 4: Wills
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Sec. V: Revocation of Wills
I. Wolfe’s Will (p. 323 cb)
A. Facts: W declares will to be his LW&T. Land was to go to Luffman. Probate denied,
yet a later will came into being.
B. Issue: Whether any last will made is to be considered the LS&T, thereby knocking
out the previous will.
C. Holding: No.
D. Reasoning: Mere fact that a second will was made, although it purports to be the last,
does not create a presumption that it revokes or is inconsistent with one of prior date.
Issue is about the words: “all my effects” Effects generally refers just to pers. prop, not
real property.
E. Policy: Even when there are two wills purporting to be the LW&T, so long as they
are not inconsistent with each other, they can both be valid.
F. Book notes:
1. its not always the case that LW happens at the same time as T. It could be a will plus
one or more codicils. Some codicils revoke part of a will.
2. thoughtful lawyers try to avoid codicils unless time is very short or there is some
question about the testator’s capacity.
G. Class notes:
1. a case where you fundamentally have a will and a codicil. You start getting into how
much extrinsic evidence you can bring in to determine what decedent meant by real
property and what she meant by the word “effects.”
2. Here, judge decided it really wasn’t up to trial ct judge to make this decision, it was
more for a jury to decide.
II. Intro
A. Wills are ambulatory
1. they can be revoked.
2. 3 ways:
a. revocation by physical act
b. revocation by subsequent instrument
c. revocation by operation of law
B. UPC 2-507 – Revocation by writing or by act
III. First Interstate Bank of Oregon v. Henson-Hammer (p. 317 cb)
A. Facts: D had taken his own life. Original will was never found. P was to be the
trustee. Daughter was sole heir. They had a safety deposit box together.
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B. Issue: Whether to admit to probate a copy of a will, when the original had been
destroyed, even though there is a presumption when a will is destroyed, the D intended
to do it, and it should be revoked?
C. Holding: Yes.
D. Reasoning: The strength of the presumption of revocation varies with the facts. D
never said he’d revoke his will. Daughter would have benefited by such revocation.
E. Policy: The strength of the presumption of revocation by destruction that is raised by
a missing will depends on the decedent’s control of the will and others’ access to it.
F. Class notes:
1. if you can’t find the original will, but you can find the witnesses, you can have them
testify and bring up the will. When original will is not around, it is presumed to be
destroyed and revoked.
a. another reason why you don’t share safe deposit box. As in Briggs, you are not
going to let someone benefit from their wrongdoing, even if we can’t prove they were
wrong. How do you deal with missing will?
b. make sure client signs 1 and only 1 copy.
G. Book notes:
1. “lost and destroyed will statutes” – some states spell out exactly what extrinsic
evidence they’ll look at in determining the contents of a missing, but not revoked, will.
2. acts done to a copy of a will are irrelevant.
IV. Revival and Dependent Relative Revocation
A. Intro
1. revocation of T’s LW does not reinstate a prior will.
2. revocation if the codicil leaves the will, w/o the revoked codicil, intact.
V. Carter v. First United Methodist Church of Albany (p. 332)
A. Facts: T died, then his W died. Found a will, and then a holographic will. W had
previously said she needed her lawyer’s help to make changes to her will.
B. Issue: Whether to admit the will to probate?
C. Holding: Yes.
D. Reasoning: Where will has been canceled or obliterated, a presumption of revocation
arises. Doctrine of dependent relative revocation, is to give effect to T’s intentions. It is a
doctrine of presumed intention; the principle is the same whether the revocation is by
physical act or by subsequent instrument.
E. Policy: Where a will has been canceled or obliterated in a material part, a
presumption of revocation arises.
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3-27-03 Thurs Class:
I. Recap
A. EPTL 3-3.2 (a)(3)(A)
1. it says: in case voided disposition becomes part of residuary, a disposition that lapses
or void for some reason, falls into the residuary.
a. attorney gets paid out of residuary.
2. have an interested witness who would be distributee, whatever it is, goes into
residuary. Now, wills are written in such a way that residuary is liable for all debts,
including tax debts.
3. life insurance – is not a probate asset, but part of the estate for tax purposes. Be
careful of not sticking residuary with all the bills.
B. Snide case
1. referred to in the book, on p. 315. Case good example where rule is stretched so
much, a judge decides not to use it.
II. Revocation of Will
A. Ways to do it:
1. make another will
2. destroy the will
3. supplement the will (with a codicil)
4. operation by law
a. one example is divorce. Disposition is automatically revoked.
5. act inconsistent with disposition
a. leave house for son in will, then sell the house the next day.
6. elective share (EPTL 5-1.1(A))
7. after-born child rule
Problems on p. 198-199
I. Revocation by subsequent instrument
1. No, T’s will is not revoked. If you want to revoke it by instrument, you need to do it
with one that complies with testamentary formality.
a. simplest way: in new will, say I revoke all my previous wills. See p. 352
b. see EPTL 3-4.1 Revocation of wills, effect on codicils. See part 2, acts that
physically destroy the paper versus acts that don’t physically destroy will but acts which
make words on will meaningless.
2. T executes 2 wills – but which one did he do first? Do we need to have wills dated?
It is not a statutory requirement. Who takes Blackacre? Later of the two works
a. none of this was done under advice of lawyer. See if there were any inconsistent acts
here, and then make a determination.
3. first will gave B to son, then D says he doesn’t like son, and makes another will,
devising B to daughter.
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a. Who takes Blackacre? Daughter, bc of prior inconsistent statement. Primary policy:
what is the intent of the testator? There is also a policy to avoid intestacy, and sustain a
will if we can. Is property considered $?
b. Does Wolfe’s Will govern?
i. some language that suggests consistency (blackacre is not $); yet there is some
inconsistency (I think son deserves nothing from my will).
III. Holographic will
A. See EPTL 3-2.2
1. an exception to the revocation statute. There is nothing stopping someone from using
this statute.
2. can have partial revocation by codicil in NY.
3. applies to servicemen in combat.
IV. Codicil
A. See EPTL 1-2.1
1. a supplement to a will
B. Why do it?
1. if you just want to make one change. Way back when, people had codicils before
word processors. Would you rather type 1 pg or 25 pgs
2. prof: strongly discourage clients to do them. Can get you into trouble. Want to know
what they are. Try to avoid it.
3. one reason might be: have T sign a will, and is perfectly competent, and 3 yrs later,
she suffers a stroke. If you throw old will out, and you don’t know if she is competent.
One you revoke will, it is revoked.
a. in so doing, you may have ruined an entire testamentary scheme. So, in this case,
you may want to do just a codicil – in case someone stands up and says this codicil
should not stand; then you fall back to will and you’ll at least save that much.
V. Revival and revocation
A. Generally – see EPTL 3-4.6
1. once revoked, it is revoked unless …
B. T
1. signs W1, and then W2, not really revoking W1. W1 could possibly be revived.
C. Ways to revive:
1. retype old will, sign it anew, and then W1 is in effect; prob can’t revive it by signing
a codicil to W1 if you had validly revoked W1.
D. Revocation by prior acts
1. this does not necessarily mean revival of prior will.
2. doctrines like revival, etc. are salvage doctrines cts have adopted to clean up messes.
In A2, we have 2 kinds of physical acts:
a. ones that physically destroy will AND
b. revocation by acts.
3. what is a will? By definition, a document executed with certain formalities.
a. what do you do with the changes, and what effect do those changes have on the
document?
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b. if you can make out what was once there, it ought to be given effect. Look at 34.1(a)(2).
4. in NY, cannot revoke part of a will by physical act. That is not the case in some
states. Judges will reject markings bc they’re not in accordance with testamentary
formality.
a. by and large, these rules were fairly simple. In area of revocation, it becomes more
complicated.
E. Destruction of a will
1. it is a revocation.
2. but what about if the original is still around?
F. Doctrine of Dependent relative revocation
1 combines execution of new will with markings of old will and construes both of them
together as being a revocation of W1. Only revoked if new will is executed.
2. don’t have this officially in NY, we do have lower cts in NY (like Erie County) that
have. Will come up in the bar.
3-31-03 Mon HW:
Read, do problems II and III
I. SCPA § 2507
A. Reception of wills for safekeeping
1. the county can hold on to it for you, after you’ve paid a fee.
2. it should be closed in a sealed wrapper
3. spells out the terms for delivery.
II. Revocation by physical acts (p. 198 supp.)
1. T’s will
a. is the will revoked?
i. me: no, you can’t just write revoked like that on a will.
ii. class: yes, it is revoked. Yes, intent is the key.
2. can photocopy be probated?
a. me: no
b. class: possibly, it depends on where the photocopy is located and who has it. You
could offer it as extrinsic evidence that there was a will made. Strong presumption in
NY, and original is lost, and in T’s possession, that will is not valid. See SCPA § 1407.
3. copy of will found in little pieces; can it still be probated?
a. me: it depends on whether jurisdiction follows Henson-Hammer. If he never
intended to revoke it, then yes will can still go to probate. However, if he was planning
on revoking it but never got around to it, then maybe it doesn’t go to probate.
i. class: never want to let cl execute an original and a photocopy. Want one original
and one photocopy. Cts will generally say one is revoked. Always see who has access to
the will. Presumption of revocation is strong here.
4. cant find copy
a. me: yes
i. class: yes, bc copy is not original!. Any acts you do to a copy doesn’t matter. But if
you tear up a duplicate, that has consequences.
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b. me: yes, bc under cy pres, that shows intent and one must do as the T intended.
ii. class:
5. should you…
a. prepare dup copy:
i. me: no, this can only get you into trouble
ii. class: yes, that is perfectly marked copy, to show contents of will
b. should dup as well as copy be duplicated?
i. me: yes, just to be on the safe side
ii. class: no, absolutely not
c. who should retain copy?
i. me: local county ct, or local Surrogates Ct.
ii. class: judgment call
III. Revocation by operation of law
1. H will; H was married to J, but divorced her and married Ba. J was having an affair
with H’s brother, Be. H also sues Be for alienation of affections
a. who is entitled to what portion?
i. me: Ba gets 1/3 unless she decides to elect. She’ll get blackacre, unless she doesn’t
want it. Normally, the rest should go to Be, but he did sue them. If one reads that suit as
being that H no longer wanted him to have $, then using cy pres, Be gets such out.
Former spouse gets zero.
ii. class: depends on how ct construes wife, after a divorce. He remarried. You should
name my wife Sarah, instead of just wife. Will doesn’t become valid until T dies. If will
is valid, she gets $100,000 and brother gets $80,000 but she has a rt of election. Better
off to take Blackacre, bc it worth. 2nd wife probably will take it.
iii. class: See Covert. Someone shouldn’t benefit from their own wrong. Make your
policy arguments. It might not get you that far but it won’t be totally frivolous either.
- consider 5-3.2; an after-expired spouse; but there isn’t anything like that for the
spouse. Spouse’s sole protection is 5-1.1(A)
2. Who is entitled to Blackacre if T was to give it to son, then sells it but gives son 4/5
and later re-purchases it?
a. me: is it considered a gift or an advancement? Is give just 4/5 of $ rather than entire
thing, make act only partially, not wholly, inconsistent. I think son can still get Blackacre
later bc T didn’t provide in his will that 4/5 $ was designed to satisfy devise of that will.
b. class: 2 different redemptions: redemption by extinction, meaning prop is not around
anymore and redemption by satisfaction, in which T demonstrates an intent to satisfy a
bequest prior to death. See McGee.
c. class: is this ademption by extinction. In order to get this, it has to be extinct. Is it an
ademption by satisfaction? No, T did not leave any specific notation. See 2-1.5
(advancement). Need something in writing, don’t need another will to get the
advancement. It looks like we don’t have an ademption by satisfaction.
i. 5-4.1 is a stat exception; another is 3-4.3. What does “wholly inconsistent” mean?
These are the questions to ask. Has he cured the inconsistency? Is selling blackacre
wholly inconsistent? It sure sounds like it. If you can convince a judge it is wholly
inconsistent, you have revoked the disposition, and the son won’t get it.
3. Review Problem 1, now considering Maruccia
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a. me:
b. class: is this wholly inconsistent? We’re talking about disposition of Ben. A sued
Ben for alienation of affection. In a sense, Maruccia is saying a sep agreement
constitutes a disposition of property. This is an odd result.
IV. EPTL
A. 5-1.4 Revocatory effect of marriage after execution of will
(a) before 1930, …
(b) spouse is entitled to what they would’ve gotten as a beneficiary
(c) spouse can waive rt to intestate share…
B. Revocatory effect of divorce
(a) divorce revokes any property the former spouse would’ve gotten under the will
(b) ?
V. EPTL
A. 3-4.3 – revocatory effect of a conveyance
1. just cuz you change a little of your prop to be devised, doesn’t make it null and void.
However it the act is wholly inconsistent with the will, then the act revokes the
disposition of the property.
B. 2-1.5 – advancements and their adjustment
(a) it is an irrevocable gift
- it may be adjusted, but it must have a contemporaneous writing with it too.
Ademption – doctrine provides that the specific devisee is entitled to nothing if the
specifically devised property is not in T’s estate at T’s death.
VI. McGee v. McGee (p. 255 cb)
A. Facts: P, son, who is also a lawyer, is the administrator of his mother’s will. He
wants some clarity as to how to divide up property. She had a lot of $ in the bank, but
some had recently been withdrawn, and put into buying bonds. Her $ was to go to friend
Hurd and to the grandchildren.
B. Issue: Whether to apply doctrine of ademption and freeze out one intended
beneficiary (family) for another (friend), when all friend was to get was just $20,000?
C. Holding: Yes.
D. Reasoning: Principle of ademption is inapplicable to general testamentary gifts. The
grandchildren were a specific legacy. The gift is definite and identifiable. The $ for the
grandchildren was to come from a specific source, Texaco stock. Yet the change affected
by P was substantial.
E. Policy: A testamentary gift of specific real or personal property may be adeemed
when the particular article devised or bequeathed no longer exists as part of the testator’s
estate at the moment of his death.
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F. Notes:
1. adeemed by satisfaction – mom had devised portrait to daughter in will; then gave it
to her during mom’s lifetime, so when it comes time to probate will, daughter is already
set.
G. Class:
1. flower bonds – incentive is we’ll value it at its par value, and can treat it as cash to
offset your estate taxes. Haven’t been around in a long time. What’s a general request vs.
a specific request? This is treated as a specific bequest.
2. ademption by extinction is not an intent-based analysis. If its there, its allowed to
pass. If not, then we will NOT look to the deceased’s intent.
3. What you get here is the woman getting $20,000 and the excess should pass to the
residuary. That gives you a peculiar result. She clearly made bequest for her children.
Ademption by extinction is a very mechanical application.
4. What would you do to make sure children get $? Fedelma still takes. Expenses come
off the top, and the two would split the expenses.
a. make sure to ask the right questions at the time the will is made.
5. default position, in NY, under SCPA: expenses come out of the residue, unless the
will states otherwise.
VII. Maruccia (p. 203 supp.) P loses, 1st W wins
A. Facts: D and second wife, the P here, were separated but never officially divorced. P
was still the beneficiary of the estate. First wife and children objected, citing a release P
had signed. That separation agreement however, was somewhat vague?
B. Issue: Whether the provisions of the separation agreement entered into between the
decedent and his 2nd wife are “wholly inconsistent” with the terms of the decedent’s will
so as to cause a revocation of the testamentary dispositions in her favor, pursuant to
EPTL 3-4.3?
C. Holding: No.
D. Reasoning: Surrogate said language was wholly inconsistent. But appellate div, said
otherwise and we affirm. Any alteration in the T’s interest in a previously devised or
bequeathed asset will not work a revocation, but a conveyance or other act which is
entirely inconsistent with the prior testamentary disposition will cause it to be revoked.
Revocation of a will is to be done with as much formality as required to make a valid
will in the first instance.
E. Policy: A far clearer indication of D’s intent is required to make a revocation.
F. Class:
1. language is inconsistent. Divorce operates as a matter of law to revoke any
disposition. We don’t have a divorce here, we have a separation agreement. As a matter
of practice, most of the time when people get divorced, the sign a sep agreement, some
lapse of time and then they get divorced.
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2. intent doesn’t always matter. Intent generates litigation. Words mean something.
3. lesson #2: if you are divorce lawyer, make sure the client’s will is re-written.
4. neither the statute on divorce nor Maruccia, deals with a non-probate asset. It is
completely not covered.
4-1-03 Tues Class:
Missed it bc it took me
1hr 45 min to get to UB
due to snow
4-1-03 Tues HW:
Read p. 227-245 cb;
Problems IV and V
IV. Partial revocation
1. T makes will
a. me: Z: no
i. class: not be able to take, bc there are no formalities. See 4.1 and 4.2
b. me: yes, gets the $.
i. class: takes whatever he takes what he’d take under the original will. You can’t
revoke by part, by physical act. There have been plenty of cases like this, where T
crosses out somebody’s name and it doesn’t work.
c. me: yes, Y remains unaffected, unless the court says that change was a complete
revocation which they probably won’t.
i. class: as long as will is still valid, Y should still take. We’re presuming X and Y
are alive here. This is pretty straight forward.
2. T makes will, give $5K to a few people
a. me: X will take if, if the later document did not contain language declaring it to be
LW&T and revoked former will
i. class: this is more complicated. No, clearly not. 3-4-1(a)(1)(B). What happens to the
$5,000 that X was supposed to get? It falls into the residuary.
b. me: depends, on answer to A. Yes.
3. me: yes, unless it can be proved that writing revoked was witnessed
i. class: rule: can’t partially revoke by physical act. You have a 2nd will. If it is treated
as a second will, then you have will with instruments. W1 says revoked on it. From black
letter law, if it didn’t say revoked, you’d have 2 instruments. By writing revoked, he has
tried to revoke part of an instrument by physical act in NY. Cts tend to let you revoke a
first will. You have some work to do. 3-4-1(a)(1)(A). Based on facts given, it is not
wholly inconsistent.
a. me: No, presumption is even stronger in this case, bc T had already devised $ to X in
yr 1.
Class: this is not wholly inconsistent.
Consider: intent, inconsistency, writing revoked is a re
Integration and Incorporation by Reference
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VI. Estate of Norton (p. 227 cb)
A. Facts: Son wants his dad’s paper (will) put into probate. 1st 6 pages contain
dispositions, last 2 are the codicil. Witnesses signed codicil but not the will. T had asked
that 2 pages be stapled to original LW&T. Codicil doesn’t refer to the will.
B. Issue: Whether to probate the will, where it appears witnesses signed attached codicil
but not the will?
C. Holding: No.
D. Reasoning: This paper did not meet the formalities of executing a will and codicil.
The lack of signatures on the first 6 pages is what did it in. Need to see if there is reliable
evidence that the 6 pages were in existence at the time of the codicil. Doesn’t say in the
codicil that the will be incorporated into it.
E. Dissent: The codicil is a valid document. A duly executed codicil may incorporate a
paper in the form of a will which was never properly executed as a will.
F. Policy: A properly executed will may refer to another document so as to incorporate
it, provided that the document was in existence at the time the will was executed and the
reference to it is in terms so clear and distinct that full assurance is given that the identity
of the extrinsic paper has been correctly ascertained.
VII. Clark v. Greenhalge (p. 233 cb)
A. Facts: D was named by T as executor and primary beneficiary. She had made
specifix bequests in a notebook. She told others about her her bequests before she died.
Dispute as to who would get the farm scene painting.
B. Issue: Whether specific written bequests of personal property contained in a
notebook maintained by a testatrix can be incorporated by reference into the terms of T’s
will?
C. Holding: Yes.
D. Reasoning: A notebook can be considered a memorandum. D’s arguments are
unpersuasive. The cardinal rule of wills is that the intent of the T shall prevail. The
notebook is a way for the T to express her wishes re: bequests.
E. Policy: A will may incorporate by reference any document in existence at the time of
the will’s execution that can be satisfactorily identified as the document referred to in the
will.
G. Book notes:
1. The incorporation by reference doctrine is explicitly recognized in the vast majority
of states.
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2. UPC 2-51 Incorporation by reference: allows for it, but only tangible personal
property.
VIII. Facts of Independent Significance and Pour-Over Trust
A. 2 instances when applicable
1. when T’s will makes reference to facts of independent significance to determine
beneficiaries (leave prop to oldest living sister)
2. when T’s will makes reference to facts of independent significance to determine prop
a beneficiary will receive: (I leave any car I have to my brother)
B. Pour-over trust
1. a trust that is established pursuant to a testamentary instrument, providing that the
residuary estate is to be left to the trustee of an inter vivos trust.
IX. Clymer v. Mayo (p. 242 cb)
A. Facts: D was married, and H and W had wills giving each other almost everything.
Also had a pour over trust but at the time of creation, the trust was not funded. D’s
parents claim no such pour-over trust could’ve been created then.
B. Issue: Whether a pour-over trust is invalid because there was no valid trust?
C. Holding:
D. Reasoning: We recognize validity of pour-over trusts. The statute is not conditioned
upon the existence of a trust. D’s trust satisfies the necessary conditions. Just need a trust
instrument, not necessarily a trust.
E. Policy: A bequest may be made to the trustee of a trust established or to be
established by T if the trust is identified in the will and the terms of the trust are set forth
in a written instrument executed before or concurrently with the execution of T’s will.
F. Book notes:
1. every state has enacted a provision validating will provisions which “pour” assets
into inter vivos trusts.
4-3-03 Thurs Class:
I. Ademption
A. Gen v. specific bequests
1. gen: $
2. specific: Monet painting
II. Partial Revocation
A. EPTL 3-4.1(a)
1. a will may be revoked. Doesn’t say any part.
2. C of A: In NY, has interpreted in effect you can revoke a whole will by physical
alteration, but you cannot revoke just part of a will by physical revocation.
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4-8-03 Tues Class:
I. Revocation
A. NYS law:
1. if you do multiple instrument will, and revoke at least the second one, you don’t have
to revoke the first one (an axception to the partial revocation rule).
a. What about revoking the first codicil though?
II. Revalidation/Republication
A. Important
1. read the Wyman case. Stapled pages to end of will. Judge: first part is valid, second
part is not. They may be effective in determining T’s intent. Not going to be given effect
of the will.
2. if you have a codicil, you have in fact re-published the will. Incorporating the terms
of the will. Cannot incorporate by reference in NY, unless it is a codicil and what you are
incorporating is a previous will.
B. different ways to interpret:
1. eclesiatic rule: if you revoke will with a valid instrument, like a codicil, you therefore
in fact revoke the first part of the will. In that case, you don’t revise? Follow tradl
principle that a will speaks at death. NY uses this one.
2. common law rule: have W1, and revoke W1 in W2, and then you revoke W2, then
W1 is still alive.
C. Problem
1. you may not know there are two wills. As atty, you have a duty to disclose.
III. Carter v. First United Methodist Church of Albany (p. 332) already read
A. Facts: T died, then his W died. Found a will, and then a holographic will. W had
previously said she needed her lawyer’s help to make changes to her will.
B. Issue: Whether to admit the will to probate?
C. Holding: Yes.
D. Reasoning: Where will has been canceled or obliterated, a presumption of revocation
arises. Doctrine of dependent relative revocation, is to give effect to T’s intentions. It is a
doctrine of presumed intention; the principle is the same whether the revocation is by
physical act or by subsequent instrument.
E. Policy: Where a will has been canceled or obliterated in a material part, a
presumption of revocation arises.
F. Class notes:
1. need revocation plus intention to get to this. You may not win your case, but you
have a logical basis on which to make a distinction. Always looking for intent and it is
not always clear what intent is.
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V. Revalidation of Revoked Wills Problems (p. 200)
A. Republication by codicil
1. Does A take Blackacre? Yes.
a. conflict: at time he wrote it, vs time he died. Also wrote codicil, which republishes
the will. If you were A, as of the Y3 codicil, he owned blackacre.
b. he was alert enough to appoint a new executor, so why wasn’t he alert enough to do
codicil. T is held to some duty to pay attention to what he has and how he plans to
dispose of it.
c. it is important to ask questions not only when you’re writing a will, but also when
you’re probating a will.
d. rt of election rules changed in 1992. The rules apply at time of death, not when the
will was drafted. Will speaks when you die, not at time will was made.
B. Revival of Revoked Wills – can’t revive a will once it is completely revoked.
1. see 3-4.6(a). doesn’t revive previous will. No.
a. you can republish by codicil. And republish by prior will.
2. what else could you do here? See 3-4.6(b).
VI. Dependent Relative Revocation Problems (p. 201)
1. John is not dead even though T thought he was:
a. can J take under the will? No. Clearly T made a mistake. There is nothing in the will
that makes a provision for him. If you make a mistake in your will, you’re held to it.
Judge is very unlikely to say, you had misinformation, so we’re going to re-write your
will for you. However, T isn’t held to mistake if there is some fraud involved and
someone assisted T in making the mistake.
b. can J successfully contest probate of the will? Probably no.
2. Is T’s will revoked? No. There is a rebuttable presumption of revocation. Burden is
on the challenger. Revocation action depends on the act of the T. If there are no copies,
there are no will. Essence is there has been no revocation.
a. this will put in a suspicious light. But statute says “if intended”, and there was never
any other will created.
3. T thinks J is dead. Can Jane take under the will? A little different from #1, in that
here T had a will, but tears it up, saying “since my daughter is dead.” Have T’s intent. In
1, T’s will is pretty clear. Here, you have evidence. At least you have a shot at showing
mistake here, unlike in 1. (classic example of dependent relative revocation).
4. Can X take under the Year 1 will? Probably no
a. inclination is no. That’s the answer you’ll get from most surrogates. Here, it depends
on who X is and who Y is. Important aspect of this answer is it kind’ve depends. Have
an invalid W2 which is wholly inconsistent with W1.
b. have an invalid second will. You can draw some intent out of an invalid will. When
you throw it out, you throw out the whole thing. But it is not very useful. Written
instrument itself appears to be a mistake. Depends somewhat on who is X. The doctrines
intertwine.
5. T scratches out:
a. will X take $5,000 under the will? No. First, was there a revocation? Yes. T
undertook a physical act. In NY, this wouldn’t work. Here, this is exactly what partial
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revocation by physical act means. Does Z take? No, bc there is no formality here.
Suppose there was a mistake? It depends on who is X and who is Z.
b. changed $ from $5,000 to $6,000? $5,000 was given with the necessary formalities.
Here, he wants to do more. This is not simple revocation. X would get $5,000 but not
$6,000. No. This is DRR – enforce it the best way we can.
6. Is T’s will revoked? No. There is no revocation, so end of analysis. Only diff with 2,
is instead of saying it, he wrote it. 6 is a lot like 2. Written statements are given greater
weight than oral statements. This is a cond’l revocation.
7. T
VII. Recap
A. 2-part test for dependent relative revocation:
1. Is there a revocation based on mistake
2. Intent to make a new will
4-9-03 Weds HW:
Probs 7 and 8 (on p. 202);
Start Ch. 5: Contesting the Will
I. Problems 7 and 8
A. Prob 7
a. can John take under the will?
i. me: if there was fraud involved in that T was deceived into thinking J was dead, then
maybe, but most likely not. However, he never did create a new will, which could
complicate things.
ii. class: No. Running into 3-4.1 revocation. Hard to do unless will includes some
indication that T meant
b. different answer?
i. me: yes, if it read, since, it seems to me that T definitely knows that J is dead so
therefore he is less likely to be able to take.
ii. class: Probably yes. this is a much better argument. This is an assumed revocation.
There was a revocation and there was a mistake. This is a cond’l revocation, so you
might not even apply DRR.
B. Prob 8
a. Does X take under Y1W?
i. me: yes, since fraud could be found in that a beneficiary was one of the witnesses,
and not just a disinterested third party. Otherwise, no.
ii. class: is year 1 will valid? No bc Fact that minister is a witness doesn’t invalidate
the will, only that the minister loses his bequest. 3-3.2 interested witness statute. So, no
bc the will is invalid.
b. no revocatory clause?
i. me: if there is no revocatory clause, Y1W takes effect, and X takes. This scenario
will more likely result in X taking than in a.
ii. class: there is a bunch of case law, look to see what the document says. Answer is
likely to be no, answer is not likely to change. W2 is valid, but doesn’t validly dispose of
all of his estate, so there is a 4-1.1. case.
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Contesting a Will
II. SCPA
A. 1402 – who may propound will?
1.
III. In re Hargrove Will (p. 370)
A. Facts: H’s W made no provision for 2 children, born to his wife during their marriage
but who, allegedly bc of an insane delusion, H refused to recognize as his own. H and his
wife were married, but he sought a divorce bc he thought she was cheating on him.
B. Issue: Whether to probate will when T erroneously believed 2 of his children were
not his?
C. Holding: Yes.
D. Reasoning: One’s thoughts may be illogical or the product of prejudice but that does
not mean that they qualify as “insane delusions.” His beliefs were supported by
circumstantial evidence.
E. Policy: A testator will not be deemed to have been lacking in testamentary capacity if
there was any rational basis for the beliefs to which he ascribed.
Fraud
IV. In re Roblin’s Estate (p. 404)
A. Facts: D told her father that her mother had left her entire estate, except for a
diamond ring, to D’s brother, P. Father then made a will leaving all his property to D.
B. Issue: May an innocent misstatement of fact constitute grounds for setting aside a
will on the basis of fraud?
C. Holding: No.
D. Reasoning: A will is not vitiated by fraud unless it was induced by a statement which
the speaker knew was false and which was uttered with the intent of deceiving the T.
She only got $61 after taxes. She didn’t intend to deceive father.
E. Policy: One must show intent, or bad-faith, for misstatements to lead to fraud, and
thus setting aside a will.
4-10-03 Thurs Class:
I. Dependent relative revocation
A. What does it mean?
1. 2-part test:
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a. mistake with equitable intentions?
Contesting a Will
II. Overview
A. History
1. Form 3A, signed at same time. You don’t know where witnesses will be when T
dies. Once affidavit is signed, in and of itself, that T signed properly. T had capacity,
there were 2 witnesses, they saw T sign, etc.
2. judge can reject affidavits if he so chooses.
B. SCPA 1405
1. ct may dispense with the testimony of witnesses.
C. SCPA 1408
1. threshold every probate has to meet. This imposes a duty on the court to make sure
will is valid. NY is a little different.
D. Hypo
1. people might disagree with you about validity of will. Set up who to notify those
who have an interest in the will. Standing in this context deals with these people who
have an interest which is adversely affected by the will offered for probate.
2. if these affidavits are not accepted, then there is a hearing and there might be
testimony received from witnesses.
E. 1403
1. tells you who has to be notified
F. 1408
1. judge has authority to make determinations
G. 1403/1410
1. imagine the problems if you had to inform all people who could contest. Too many
problems. 1403 reflects judgment from legislature that we have to cut this process off at
some time. 1403 just tells the executor who gets formal notice. This cuts out a potential
beneficiary.
III. Who may contest? (p. 210)
1. T dies.
a. Can W contest? She gets notice. Yes.
b. Can J contest? No. bc he is not adversely affected, bc he is getting more under the
will than he would if T died intestate. Make sure to run the #s. He does get notice (bc he
is a distribute) though even though he has no right to contest it.
c. B? Cannot contest. No notice. It is good to prepare a family tree. Is X adopted? Etc.
2. T makes another will
a. Can X contests Y2W? Yes. In order for X to take part of T’s estate, X must prove
Y2W is wrong but also has to prove Y1W is valid. Bc you are presumed to have died
w/o a will. As a practical matter, you only have to prove Y2W is invalid. That’s all 1410
does – it is a standing provision. It is not a finding of anything. Does he get notice of Y2
probate proceeding?
i. 1403 is a very important provision – you can’t screw it up! Has standing to contest,
but has no rt of notice. 1403 and 1410 you’d think would be in sync together, but no.
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b. Y is just an executor who has been cut out as executor of W1. 1410 – these people
can’t generally contest unless court authorizes it for good cause shown. Doesn’t get
notice.
3.
4-15-03 Tues HW:
Read p. 409-429; 283-315 cb,
NY J. Pattern Instructions;
Problems on p. 210; 217
EPTL
I. Problems on p. 210
A. 3 – T makes will, gives estate to X. Also has a child, John, and husband who T leaves
behind.
a. me: yes, he is the spouse of the deceased and is entitled to some support.
a. class: He can contest, and he can get notice. Although he will get more under
intestacy than under rt of election?
b. John: no, bc you can disinherit your children but not your spouse.
b. class: he gets nothing under the after-born statute. There is nothing left, for him. To
be safe, judges require you get notice anyway, so long as you have standing. He does not
get notice technically, but in a real world, a judge would require it bc it is the son of the
T. See EPTL 5-3.2
B. Hypos from class:
1. $100 W and a $200 tottenham trust. Don’t bother contesting this will; file notice of rt
to election.
C. EPTL
1. 1408 says you have to be adversely affected. See what you’d take under intestacy or
a prior will, to see if you have an interest in a will. Sometimes rt of election, will give
you more. It is a simple #s game. The family bible rule does not impact this calculation
at all.
Preparing for the Contest: The Lawyer’s Role
II. Will of Kaufmann (p. 418 cb)
A. Facts: W appeals from lower ct’s decision that the will of K was void, due to W’s
exertion of undue influence over K. The two had lived together and K had give W
control over his assets. W obstructed all communication K had with K’s family.
B. Issue: Did the ct err in submitting the issue of undue influence to the jury due to
insufficient evidence?
C. Holding: No.
D. Reasoning: Gen rule: T can dispose of his estate as he wished provided that it is a
result of his own competent volition. Undue influence can be asserted under 2 theories:
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(1) threat of harm to T or T’s family and (2) manipulation of the will by others. Here, W
purposely deceived K.
E. Dissent: Finding of undue influence here is based on speculation.
F. Policy: Trial ct properly submitted the issue of undue influence to the jury, requiring
the opponents of the will to demonstrate by sufficient evidence that the document was
executed by the testator, subject to dominion by a person with whom he shared a
confidential relationship, who received a substantial bequest as a result.
III. NY Pattern Jury Instructions
Construction Problems: Reading the Will as a Whole
IV. Marine Midland Bank, N.A. (p. 284 cb)
A. Facts: Widow, P, and children of T’s nephew challenged the ct’s construction of the
word “children” under the will instrument, arguing that it should encompass the broader
class of “issue”, thus entitling them to a share in the estate.
B. Issue: Whether to consider cousins as issue, for purposes of taking under the will?
C. Holding: No.
D. Reasoning: Cts have generally held that the term “children” is construed as referring
to immediate descendents absent an overall testamentary plan providing otherwise. Here,
T clearly wanted $ to go to other brother, if first brother died, NOT to first brother’s
children, or T’s nieces and nephews.
E. Dissent: T did want to provide equally to his brothers and descendents.
F. Policy: In construing the terms of a testamentary plan, the ct must give effect to the
plain meaning rule, requiring the cts to interpret language of the testamentary documents
according to its ordinary usage, absent evidence of an overall contrary intent.
V. Estate of Carroll (p. 292 cb)
A. Facts:per
B. Issue:
C. Holding:
D. Reasoning:
E. Policy:
VI. Estate of Gibbs (p. 297 cb)
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A. Facts:
B. Issue:
C. Holding:
D. Reasoning:
E. Policy:
VII. Britt v. Upchurch (p. 303 cb)
A. Facts:
B. Issue:
C. Holding:
D. Reasoning:
E. Policy:
VIII. Gifford v. Dyer (p. 310)
A. Case:
IX. Knupp v. D.C. (p. 312)
A. Facts:
B. Issue:
C. Holding:
D. Reasoning:
E. Policy:
X. Problems on p. 217
4-15-03 Tues Class:
I. Multiple Wills
A. W1 and W2
1. W2 trumps W1 bc it was written later, and presumably revoked earlier-drafted W1.
B. 1401(c)
1. if you already probating W1, have to give notice to various people. That doesn’t mean
you have to give notice to other people named in W2, unless you know there is a W2 and
it will affect the people named in W1.
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II. Antilapse
A. Intro
1. legis. has made a decision that in certain close relationships that if T leaves prop.
close enough, and that person predeceases, that person may be able to pass through his or
her inheritance to that person’s issue.
2. reason: at common law, there is an implied provision that in order to take under a
will, you have to survive, period.
a. if you’ve left something for someone, and they died, wouldn’t you want that
something to go to that someone’s children?
3. normally, X and Y must be alive when T dies.
B. Hypo:
T
I
C
D
I
A
I
D
B
E
1. Will says bea must survive whole to sure of A/B but A/B predecessor? Most
jurisdictions if you specify something simple, like survivorship, in that case, antilapse
statute wouldn’t work, and that is why A and B are cut out. In a few jurisdictions, and
UPC, contains a section, words like ‘if he survives me’, you need to show something
more.
2. most states, including NY, do not follow the modern rule. Majority rule, is if will
conditions bequest on survival, they must survive, in order to take. UPC 2-603(b)(3) say
simple words are not enough. They want antilapse statute to kick in. Want T to come
right out and say it. See p. 12
C. Another hypo:
A
A1 A2
T
B
B1
C
D
D
Y
Jane
Z
Joe
T
John
1. bc of 3-3.4 it does not fall into intestacy. There are a couple of conditions that must
be satisfied as a result. 3-3.4 saves C’s share from intestacy; and will split it up among
other beneficiaries. There has to be at least B and C here.
2. a’s share would’ve been 1/12 + ¼ and B’s share would be the same. All we have done
is take these 4 people, and divide? Although statute says ‘by representation’ the statute
does not apply at the lapse statute. A gets 1/3 and that 1/3 is what lapses through.
3. by representation takes effect at this level:
B
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B1
1/3
B2
B4
2/9
B3
B5
2/9
B6
2/9
3/27
2/27
2/27
2/27
4-17-03 Thurs Class:
I. Antilapse Statute continued
A. See 3-3.3
B. Class gifts
1. you have to be alive when the will is written to have any rights under the antilapse
statute.
2. to sum up, A1, A2, B1 – are issue bc that is what is says (based on historical and
statutory reasons
II. Problem on p. 217:
3-3.3
X (John)
Y (Jane)
10K
Z
A
B
C
D
1/3
A1
1/6
A2
1/6
B1
½
4-1.1
1/3
2/3
2/3
2/3
2-1.2
1/3
2/9
2/9
2/9
B. Tips
1. when writing wills, you’ll want to use terms like “issue” and “per stirpes”, but you
have to work these things out first. May want to consider an alternate approach. Same
something about alternate dispositions, which you do my name.
2. Be specific
3. Say to T: “what you’re proposing to do, may make someone unhappy. I’ll defend
you but I’m not you. There could be a will challenge. That takes $.”
a. there is a rule, 3-3.5 (interrorum clause):
– if T wants to condition bequest or devise on beneficiaries that they do not contest the
will, that is OK, under the will. The penalty for contesting and losing is: even what they
were going to be given under the will, will be taken away.
b. old-common law cases, went both ways.
c. if you win, you win by claiming T was not competent, so you go to either intestacy
or a previous will.
d. exception, is 3-3.5(b)(1). If you have PC, you can challenge a will on forgery
grounds or that it was revoked.
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- In states that apply UPC, so long as you have PC, any contests are permitted. This is
not NY rule.
e. if you’ve been nearly cut out, you have to ask yourself whether it is worth it to
challenge the will. If you win, you’re ok, if you lose, you have to pay your attys fees and
also you lose what you would’ve gotten under the will.
f. exception: lawyers may ask you to waive your rt to notice
g. see (D): you’re upset and your interest in the decedent’s estate has been limited.
Don’t have enough information, so go forward with depos to get the info you need. This
is both a shield and a sword.
h. (E): I have no objection to the will, but I don’t know what this section means.
C. What to do?
1. as an atty for T, you have to prove up this will. Get client to see a psychiatrist, to
make sure that you have a clean bill of mental health.
a. you can’t prove a will except for under-oath statements of witnesses to that will.
b. could have T write a letter explaining his thinking re: the will. Now this is extrinsic
evidence and it may or may come in. sometimes, you can write an own memo to file to
explain what has gone on.
c. videotape the will ceremony. However, that can cut both ways.
d. allow witnesses to engage the T in conversation.
2. in some states, there are pre-mortem probate statutes: if T is absolutely sure about a
will, you can have it probated before he dies. This is not a popular statute, bc every time
you want to change your will, you have to get a court order.
D. Sound body and mind, etc.
1. its in the movies, but not really in real life.
2. what is mistake vs. undue influence?
a. mistake, if there is a general basis for it, then that mistake will not void a will.
However, if you have been led to a mistake, by someone who stands to benefit from that
mistake, then that is fraud, and thus voidable.
3. T can be prejudiced about race, sex, etc. That doesn’t mean will doesn’t go to
probate. If you’ve read something, there is a presumption that you understand it.
Next time: fraud and undue influence
4-22-03 Tues Class:
Review Continued
4 Grounds for challenge
I. Capacity
A. Works both ways
1. if you don’t have it to revoke a will, then you can’t do it.
B. Interview
1. meet with clients to determine practical basis that they had capacity.
2. as an attorney, you can express an opinion about the overall capacity of your client.
Only experts can do that.
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a. you have to have something to say, when opposing counsel asks you what you
talked about.
b. did T have ability to inform intent
II. Undue Influence and Fraud
A. Burden
1. so-called fid. Relationship (atty-cl); if you have one and you are the beneficiary
under the will; you have the burden showing capacity – that there is not any undue
influence involved.
2. what about college trustees saying, if you give us $, we’ll name a building after you.
Its influence but is it undue.
3. look at leverage – does one party have it?
4. undue influence – covers area where T’s intent is impeded in some fashion. Could be
like refusing to take T to lawyer. Or has T’s intent been somehow subverted. A
restriction on exercising your intent.
B. Fraud
1. it is deceit; a knowing misrepresentation of a material fact.
C. Fid Relationship
1. problem w/ lawyers writing wills, it puts them in a position to influence the T’s
intent. See Putnam. Charge roughly 4% of the probated estate in this practice area. Also,
get fee if you’re executor (fee is 5% of first $100,000, and goes up from there).
2. if you’re named in the estate, even better. Now, at least in Erie County; a lawyer who
is both executor and named as a beneficiary; you can get $ but not everything.
a. don’t want greedy lawyers. Now, they have to jump threw a few more hoops to get
there.
C. Difference
1. Fraud is thought to be a single act of deception; whereas undue influence is thought
to involve a greater # of acts added up.
III. Mistake
A. Summary
1. this is a question about error. You can treat fraud as intent brought about by deceit.
2. See Snodd. Lower cts did what they were supposed to do.
3. T may have intended something else. What is likelihood of judge changing a will
based on lawyer’s mistake? Pretty low.
B. Whose mistake are we talking about?
1. in each case, it is pretty unlikely, that judge will take lawyer’s mistake and reform
will. Modern trend: hold the lawyer to his mistake.
2. Harborough’s Will – mistake/capacity case. T travels around Europe and comes back
to U.S. and sees that W is having affair with lawyer. He disinherits his kids – rather the
lawyers.
3. you have to be sane to have a valid will. Lying is OK, being insane is not in terms of
the validity of a will.
4. Roblin - T was happy with W2 and W2 left everything to H, but as it turns out, it
was a bigamous marriage. See p. 68. Case #3, on p. 408. is term “husband” a condition
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or a description of a person? As a gen rule: it is not treated as a condition, but rather a
description.
Next class: a review class!
4-24-03 Thurs Class:
Review continued
I. Noncupative wills
A. Holographic wills
1. only valid when soldiers are in battle, etc. and might die soon. In order to be valid,
you have to die w/i 1 yr.
B. EPTL 3-2.2
1. applies not only to soldiers, but people in armed conflict.
C. Burden of proof
1. generally, falls on the party who is most able to bear it. That is the party who has the
facts. Now, you introduce notion of fiduciary relationship. This is not very public. This
is private. Only one or two people really know what happened.
2. so now the burden shifts.
II. Recap of Problems
A. See Gruen
1. and apply them to Harry. He as claimed a life interest in that painting.
B. Life insurance K
1. distinction between probate and nonprobate assets are artificial. T has all the control
in a L.I. policy. However, for historical and common law reasons, we treat policy as a K,
not a probate asset, despite the extent of T’s control.
2. McCarthy – confusing bc it says general language in a will is not enough to change a
will. It must be specific language.
C. Tenancy by Entirity
1. half and half property. It is not included in probate.
D. Bank account
1. what rights does family have in decedent’s will. 5-3.1 in some cases, certain close
relatives can take property that decedent owns, and essentially remove it from the estate.
E. Totten trusts
1. part of nonprobate assets. EPTL gives you a rt to modify terms of a trust, or revoke it
in a will. Becomes probate asset, to the extent it is modified.
F. Trigoboff
1. if you’re specific enough, you can change beneficiary.
2. personally, wouldn’t count on it to transfer
G. Trust
1. confusing bc it is a future interest. It is clearly a probate asset, valuing the present
value of his vested future interest
H. Car
1. take it up to $15,000, and if it is worth more, than you can buy it for the difference.
I. Relatives
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1. is interpreted to mean distributees. That shouldn’t stop you from arguing something
else on the exam, but you’ll be running into a lot of authority.
J. #9 on p. 3
1. you run a risk that the estate will pass (or escheat) to the state. If you want to make
anti-war statements, there are other ways to do it. There is doctrine of not wanting to
waste the assets of the estate.
K. Per stirpes
1. NY definition is modern per stirpes. Don’t need to know difference between modern
and ancient per stirpes. Ny adopts by representation – go to first generation in which
there is surviving issue, which leaves issue.
L. Jacob
1. Ct decided to ignore statutory language and imposed its view on what the policies of
NY ought to be.
M. Marriage
1. is a creature of statute. It is a legal institution heavily regulated by the state. You
have an opportunity to apply that type of thinking
N. P. 5 problem 5
1. CPLR 5203 – to a large extent, you can renounce an interest in the state. And that is
generally okay.
2. See Covert – simultaneous death cases. The two most important features are: Riggs v.
Palmer still applies and at least in a jt will situation, you have at least an argument that
the heirs of the murderer will be entitled to inherit if in fact that is the T’s intent.
a. cts are generally unwilling to go back and think gee, if she knew he was going to kill
her, I’d wouldn’t have put him in her will. What you forfeit is the part you would benefit
from. However, if you already own ½ of something and you commit murder, you’re still
able to keep it.
O. Murder/Slayer rule
1. See Beck, Walker – gen. principle – we’re not going to let people write wills which
will destroy property. Adoption papers are clearly part of the estate but we have a policy
that adopted children don’t get access to these documents to determine their natural
parents.
2. Beck – seems more like a K case, (move house in Erie County).
P. Exam
1. most will be in Joyce format. Prefer to give people a set of facts from a point of
view, and have them react to it.open-book, open everything. Might be able to bring in
laptops.
2. NY law, and if there isn’t
Q. 5-1.1-A
1. you can’t disinherit your spouse unless you give EVERYTHING away.
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