1
Gratuitous
Transfers
Starring: Professor Kenneth “Kenny” Joyce
by Rob Edelstein
Fall 2007
Table of Statutes
Estates, Powers and Trusts Law (EPTL)
§ 1-2.5………………………………………………………………………….Distributee Defined
§ 1-2.19 …………………………………………………………………….….Definition of a Will
§ 2-1.3…………………….….Adopted Children and posthumous children as members of a class
§ 2-1.5………………………………………………………...Advancements and their adjustment
§ 2-1.6……………………………………………………………..…. “Common Disaster” Statute
§ 2-1.11…………………………………………………...……Renunciation of Property Interests
§ 3-2.1………….....……….……………..Execution and attestation of wills; formal requirements
§ 3-2.2 ……………………………………………….………..Nuncupative and holographic wills
§ 3-3.2……………………….…………….....Competence of attesting witness who is beneficiary
§ 3-3.3…………………………………….….Anti-lapse statute (application to class dispositions)
§ 3-3.4 ……………………………………Anti-lapse statue (two or more residuary beneficiaries)
§ 3-3.5 ………………………..… Conditions qualifying dispositions; against contest; limitations
§ 3-4.1 ……………………………………….………….. Revocation of Wills; effect on Codicils
§ 3-4………………………………….....Revocatory effect affecting property disposed of by will
§ 3-4.6....…Revocation or alteration of later will not to revive prior will or any provisions thereof
§ 3-5.1…………………………………………………….................... “Conflict of Laws” Statute
§ 4-1.1……………….……………………………………………………….Intestate Succession
§ 4-1.2 ………………………………………………………. Inheritance by non-marital children
§ 4-1.6 ……………………………………….Disqualification of Joint Tenant in certain instances
§ 5-1.1A………………………...……………………………………………..Right of Election
§ 5-1.3…………………………………...… Revocatory effect of marriage after execution of will
§ 5-3.1………………………………….…………………………Exemption for benefit of family
§ 5-3.2…………………………………………………………………. “After-born” Child Statute
§ 7-5.2 …………………………………………………………………. Terms of a Trust Account
Surrogate Court Procedure Act (SCPA)
§ 2507 …………………………………………………………Reception of Wills for safekeeping
§ 1403 …………………………………………………... Persons to be served; content of process
§ 1410………………………………...….. Who may file objections to probate of an alleged Will
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Part I
Intestacy, Probate,
and Testamentary Substitutes
INTESTATE SUCCESSION UNDER THE EPTL
 What is the Probate Estate?
 Who takes what?
“PER STIRPES” VS. “BY REPRESENTATION”
 Per Stirpes Chart
 by Representation Chart
COLLATERALS
 Chart (Brothers/Sisters, Aunts/Uncles, Cousins, etc).
N.Y. DOMESTIC RELATIONS LAW § 117 AND EPTL § 4-1.2
 Effect of Adoptions, and interfamilial Adoptions
N.Y. DOMESTIC RELATIONS LAW § 73
 (Assisted Reproduction Techniques)
ADVANCEMENTS
 Calculation and Effects on Will Distribution
RENUNCIATIONS
 Requirements and Effects
 Creditor Rights
MURDER, PROFIT AND INHERITANCE
 Effects of Murder
 Defenses
A.
In General.
Wills must be probated (brought before the Court and stamped with their approval). NOTE: Only
certain types of property are governable by Will, therefore only certain types of property are in
the probate estate. Property in the probate estate, and property not in the probate estate is
governed by a probate or intestacy statute.
B.
Ethical Considerations
When a client comes to you and asks for help in challenging a will, realize that the client is
probably worried about things that she should necessarily be worried about. Evaluate the will
and see what the “pot” is. Litigation can require a lot of money and a lot of emotional stress.
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C.
Determine the Value of Everything
First, use the “Harry & Hilda” grid to determine [(a) the value of and (b) what property is] [(1) 53.1 property, (2) Probate Estate property, (3) the non-probate estate, (4) Irrevocable Lifetime
gifts and (5) Spousal Share Testamentary Substitutes.
NOTE: final column labeled “Testamentary Substitutes for Spouse “is a potentially
different class of property from plain old “Testamentary Substitutes.”
NOTE ALSO: Testamentary substitutes pass outside of probate. Wills can only govern
probate property. Therefore, in general, a Will cannot govern probate property. A clause
in a Will which attempts to do so is a nullity.
WARNING: Watch out for property subject to survivor rights or which is contractual in
nature. This is mostly likely not in the probate estate.
1.
Inter vivos Gifts (i.e. Harry’s Painting, Gruen)
To transfer title to personal property inter vivos, there must be (1) intent, (2) delivery, and
(3) acceptance.
a) Intent: The donor must presently intend to relinquish control and dominion
over the property. ASK: Is the gift irrevocable? If it is, then its outside probate. If
it’s revocable, it’s in.
NOTE: A testamentary transfer is one that operates at death and avoids probate.
The essence of a testamentary transfer is that it is irrevocable.
DISTINGUISH: A gratuitous promise to make a gift in the future does not
constitute an enforceable gift because the donor is free to change his or her mind,
and if he or she dies before delivery, the property in question remains the
promisor’s and passes into his or her probate estate.
b) Delivery: The property must be delivered to the donee. Constructive delivery
or symbolic delivery is also permissible if manual delivery is impossible.
EXAMPLE: Father sent a letter to son saying that he was giving a future interest
in a valuable painting while retaining a life estate for himself.
Held: The father had the requisite donative intent to give an inter vivos gift
despite retaining possession of the painting. Because the gift was of a future
interest, actual delivery arguably was impossible and illogical. The letter
constituted symbolic delivery. Acceptance was presumed. Gruen v. Gruen.
Commentary
Ownership in property is ownership in time. Father in Gruen gave away the
“forever” part (which we call a fee simple), what the Court calls “ownership.” –
Professor Joyce.
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c) Acceptance: Acceptance by the donee is presumed as long as the item is of
value.
2.
Life Insurance
Life insurance is a testamentary substitute. It passes outside of probate because it is
contractual in nature. The contract is between decedent and payor (insurance co.) for the
benefit of the beneficiary.
NOTE (cash surrender value): With certain types of life insurance, the company
takes your premium and invests it. The person paying the premium may have the
option to cancel the policy and take the payout.
HYPO: If the life insurance policy named the decedent’s estate as the beneficiary,
would it be in the probate estate?
ANSWER: no and Yes. Still passes outside the probate estate, but since the beneficiary
designation is the probate estate, it comes right back into the probate estate.
NOTE: A general testamentary provision in a will does NOT revoke the policy. In order
to change the beneficiary in a life insurance contract, the insured must follow the method
prescribed by the contract. Even if the insured falls short of making the change, so long
as there is some effort on his part, then the change will be considered made (substantial
compliance doctrine). (McCarthy)
3.
Real property held in J/Tenacy or TBE
NOTE: You can only have a TBE (Tenancy by the Entirety) between Husband and Wife.
NOTE ALSO: New York does recognize tenancy by the entirety.
a. Held as Joint Tenants
If you own house as Joint Tenants, and transfer to your child, then your child can
take as tenants in common with mom/wife. You can’t take back her half, but you
can revoke her rights of survivorship. At death, the whole property vests in the
surviving, and the decedent has no interest left to pass into probate.
b. Held as Tenants by the Entirety
In tenancy by the entirety, the right of survivorship is not unilaterally severable.
Instead, like in joint tenancy, at death the whole property vests in the surviving
spouse, the decedent has no interest left to pass into probate.
NOTE: you can destroy a joint tenancy inter vivos, by deeding, for example, to a straw
man or other third party. If you do that, the grantee takes as tenants in common. That
interest would pass through probate.
NOTE ALSO: This is all true whether it’s personal or real property.
4.
Joint Bank Account
ISSUE/AMBIGUITY: § 675 of the Banking Law. This statute says that if you open a
joint bank account, and use the magic words in this statute: “Payable to the either or the
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survivor,” then § 675(b) says you have created a joint tenancy. But this is only a
presumption.
a. ARGUMENT: If you want this in the probate estate, show that this account was
set up as a convenience account. Why didn’t depositor intent there to be a right of
survivorship? Why did they intent for the other part to only be able to right
checks?
BUT NOTE: The Dead Man statutes prevent an interested party (someone who
would get money) from testifying with respect to the decedent’s intention, if the
end result would be that the interest parts receives something from the decedent.
CASE: (Brezinski): mom creates a joint bank account for her and her son. The
son withdraws all the money and opens a joint bank account with right of
survivorship in him and his wife. Son then dies. Mom wants the money back;
daughter-in-law refused to give up the loot.
Held: There was strong evidence that the Mother intended for this to only be a
convenience account. She only wanted her son to be able to withdraw money on
her behalf.
CASE: (Richichi): Mom opened up a joint bank account with her daughter. When
Mom died, her will stated that the joint bank accounts were to be used for
convenience only, and that the money in them was to be distributed equally to her
children. Daughter claimed the bank accounts were hers (because held as joint
tenants).
HELD: The Will was evidence of testator’s intention, rebutting the presumption
of joint tenancy.
RULE/LAW: Joint tenants own property by the whole and by their moieties. The
depositor, by opening the joint account and naming the other party as a joint tenant is in
fact deeding half of the account to the other joint tenant. Since the depositor cannot
destroy the other tenant’s interest this half grant of the account to the other tenant is
irrevocable.
BOTTOM LINE: If the Decedent took out more than half of the original amount, then the
decedent has taken property of the survivor. The decedent’s estate must therefore pay to
the surviving tenant whatever is necessary to restore that tenant’s half. If the survivor
withdrew more than half prior to decedent’s death, the survivor must do the same for the
estate and for the same reason. If half or less was withdrawn then the surviving tenant
gets it all!!! REMEMBER: With joint tenancy, title vests in the surviving tenant!
HYPO: What if the joint tenant takes out more than half and then puts more than half
back in?
ANSWER: Professor doesn’t know what would happen here and says no one else does
either. ARUGMENT: She has taken out more than half, which was prohibited in Lang,
but by putting 10 back in, she hasn’t deprived the other tenant of anything.
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5.
Totten Trust EPTL § 7-5.2:
a. In General
Totten trust accounts are very similar to payment-on death bank accounts. They are
rationalized as a form of inter vivos trusts (though not subject to general trust rules). The
depositor sets up a totten account by depositing money in an account in the name of the
depositor “for the benefit of” the beneficiary. In New York, totten trusts are governed by
EPTL § 7-5.2.
b. Statute EPTL 7-5.2:
(1) Can only be revoked/modified by withdraws made in writing. Other details
(2) Can be revoked/modified by depositor’s Will only if there’s an express direction
concerning the trust account. Other details
(3) If beneficiary dies before depositor, trust canceled, everything vests in depositor
(4) If the depositor died before the beneficiary (like what’s supposed to happen) then
everything vests in the beneficiary.
(5) But not, this can be affected by an express clause in the depositor’s Will in part or in
total revocation.
NOTE: Express direction in will, qualified writing, or withdrawal of all the funds. These
are the three ways to revoke the totten trust.
NOTE: The Depositor has all the rights that they would have with any other bank account
set up in their own name. The Depositor may, for example, set up the trust for someone
else, then withdraw all the money and buy lottery tickets with it. The beneficiary can’t do
anything.
Case: (Eredics)
Separation agreement wasn’t specific enough to revoke the Totten. (BE SPECIFIC!)
6.
Exempt Property EPTL § 5-3.1
a. In General
§ 5-3.1 “Exemption for Benefit of the Family.” This statute has a counterpart in
many states, aka homestead exemption, aka support allowance. This statute says
that when a person dies, certain assets are not part of the probate estate and
therefore cannot be governed by will.
NOTE: Look at statute for property that is exempt.
b. Signficance
This is a creditor exemption statute. Subsection 4: Car worth $15k. Subsection 5:
cash worth $15k.
HYPO: What happens if the family car is worth more than $25k?
ANSWER: Only $15k is exempt, $10k passes into the probate estate.
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EXAMPLE 1: Clothing, § 5-3.1(a)(1). This is exempt up to $10k.
EXAMPLE 2: Car, § 5-3.1(a)(4). This is exempt up to $15k.
c. Determining Value
In determining the value of items, subtract from their fair market value the
amount of indebtedness. For example, a Car worth $50k which has a $30k lien on
it, has a total value of $20k. Therefore, the surviving spouse/children can keep the
car if they give up $5k.
7.
Securities
This is part of the probate estate, however, if Hilda didn’t get the $15,000 (exemption
money) from the bank account earlier, then you’d take out the $15k from here.
HYPO: What if there’s $30k in a joint bank account and that’s all that there is. Does 53.1 apply? No. Because the only time 5-3.1 will reach to property is if the property is in
the probate estate.
HYPO: If the only account was a convenience account, then 5-3.1 would apply.
8.
Pension Death Benefit:
This is treated like insurance contracts. And like insurance contracts, you cannot change
the beneficiary by will.
NOTE: Because of McCarthy, we don’t consider whether the Bank (payor) has waived
their requirement of strict compliance. As a result, the law requires that you follow the
contract procedure for changing the beneficiary.
RATIONALE: To allow a Will to alter the beneficiary would undermine the benefits of
testamentary substitutes (i.e.: fast, easy transfer).
9.
Remainder Interests
a. In General
To X for life, remainder to Y. This means X is still alive, if not, all we’d want to know is
(a) how much is in the trust because (b) it’s all going to Y.
NOTE: Since X is still alive, we can deduce that the trust is worth much more than the
remainder. This is because the value of the remainder is only part of the whole trust.
b. Valuing the Estate
In order to determine the value of the remainder you would have to look at actuarial
tables. If you know X’s age, then the tables will give you a factor or a percentage. In this
hypothetical, the factor is .65 or 65%. If the whole trust is worth $100k, then X’s portion
is $65k. Therefore the remainder is worth $35k.
BOTTOM LINE: The remainder is in the probate estate, but X’s present possessory
interest in the trust is not.
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HYPO: Suppose trust said, to X for life, then to Y, but only if Y survives X. X
predeceases Y.
ANSWER: Remainder reverts to grantor, nothing in the probate estate.
HYPO: What if it trust said, to X for life, remainder to Y IF, in the year Y dies, before Y
dies, the Bills win a football game? If he dies in January, we have the rest of the year to
see whether the Bills win a football game. It’d be in the estate, if they won, whatever the
value of the remainder is would vest in the estate.
BUT NOTE: You’re not going to get this value from the actuarial tables.
D.
Will Invalidation
a. In General
The Court will only alter a Will if the Will is contrary to public policy.
EXAMPLE: Will gives money to X if X kills 6 people in a year. This is obviously against
public policy.
NOTE: Look to see if a statute prohibits the grant. This is not controlling, but it might
indicate that the grant is against public policy.
ARGUMENT (Against the Will):
a. We should not all a Will to be probated if it contains a provision which is against
public policy.
b. Argue that you can’t allow the Will to survive the stricken provision, because the
stricken provision undermines the testator whole scheme.
ARGUMENT (For the Will):
a. Even if there is a provision in a Will which is against public policy, we can still probate
the rest of Will, and only strike the offending provision.
NOTE: You cannot use economic coercion to force people to violate their fundamental rights.
Case (Pace)
Testator requested by Will that his house be torn down, that nothing be permitted to grow
but grass, and that a restrictive convent be put on the land preventing the building of a
garage.
Held: The restrictive covenant is an economic waste and is therefore against public
policy. IMPORTANT: Because the restrictive covenant was integral to the testator’s
large scheme, the whole will, the whole scheme failed. The rest of the will had no
meaning, this is the principle of infectious invalidity.
HYPO: What if it was grant was just for minorities or just for women?
ANSWER: Argue affirmative action vs. discrimination.
b.
Cy Pres and Equitable Distribution
A. Where a trust with a general charitable purpose express no longer can perform its purpose
because it has become impossible, impractical, or illegal, then rather then ending the trust, the
court will attempt to modify the trust purpose to another which is similar to the original.
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Commentary
Cy pres is all a matter of intent. If you can show that the Testator would not have wanted
anything else to apply, then nothing else should apply.
NOTE: If the Court cannot discern an alternative, the grant does not go into probate! It is
governed by the rules of intestate succession under EPTL § 4-1.1.
E.
Spousal Intestate Share, EPTL § 4-1.1
a. Spousal Intestate Share
The amount the surviving spouse takes under § 4-1.1 varies depending on the number of children
are alive. See statute for details.
b. Calculation of Spousal Intestate Share
Subtract the liquidated amount first, then add ½ of the remainder of the estate.
NOTE: For purposes of the statute it is irrelevant that the surviving spouse may or may not be
receiving testamentary substitutes.
Commentary
4-1.1 is a default statute. Default statutes are written by the legislature with the belief that this
scheme is what most people would want to do.
F.
Disclaimer and Guardianship
Some people might not want the money for tax reasons. Everyone would be able to disclaim
except for Tina who is 16. She’ll have a guardian, and the guardian still will not be able to
disclaim! A minor child can receive $10k. Anything more than that requires a guardian.
G.
Who gets what under intestacy?
See Assignment One for Answers and other Pertinent Notes
H.
Domestic Relations Law § 177
(1)(a) An order of adoption terminates all rights and duties of the natural parents, while granting
all rights and duties to the adopting parents.
NOTE: Natural Parents also are prevented from adopting through their Child.
(1)(b) In general, adopted children cannot inherit through his or her natural parents.
NOTE: The exception to this is “close family” adoptions.
(1)(c) Adopted parents and family can inherit from an adopted child and the adopted child can
inherit from his adopted family.
(1)(d) Stepparents. Normally, an adopting parent cuts off the adopted child from his natural
family. This subsection says that in the situation where one parent is still the natural
parent, and a stepparent comes along and adopts, then the stepparents adoption does not
cut off the Natural Parent.
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(1)(e) Adoption within the Close Family.
BOTTOM LINE: If the adopted child was adopted within his grandparent’s family, then he
inherits as the natural child of his natural parent. In all other situations the child inherits as the
adopted child.
NOTE: Use the table of consanguinity, casebook p. 70.
Commentary
Read Domestic Relations law § 117 in conjunction with § 4-1.1 and § 4-1.2.
NOTE: Half-bloods are considered the same as whole bloods. Anything left than a half-blood is
cut off.
NOTE ALSO: Make sure to check § 4-1.2, inheritance by nonmarital children.
BOTTOM LINE: Child of Mom is legitimate child of Mom, you need more to be a legitimate
child of your father: (a) a court filiation order or have other agreement, (b) not used often, (c)
[(father’s open and notorious declaration) and (indication by the father that he wanted the kid to
inherit) (d) DNA test, BUT NOTE: this is only ok if administered during father’s lifetime.
Problems:
D, the Decedent is survived by the following persons only:
(i) Dan – Dan is the son of D’s second wife. Dan was not D’s natural or adopted son, but
was treated by D as his own son.
(ii) Joan – Joan is the non-marital daughter of D’s decease half-uncle Jeremiah. Jeremiah
never acknowledged paternity of Joan, nor was there a filiation order entered during
Jeremiah’s lifetime.
(iii) Sally – Sally is D’s natural daughter who was adopted by half-uncle Jeremiah
First, Diagram the Family:
Second, answer questions:
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(1) Who is entitled to what share of D’s estate?
ANSWER: (REMEMBER only survivors have the potential to take)
 Dan is out because he is not a blood relative (only related by marriage, and was never
adopted by D).
 Joan is out because as a nonmarital daughter of her father, she needs to have been
confirmed as his legitimate child. See § 4-1.1
 Sally therefore takes all, as D’s adopted first cousin (not as D’s natural child).
(2) Same as (1) but Joan is the non-marital daughter of D’s half-Aunt, Jerry.
ANSWER: Since the non-marital parent is now Mom, then she is automatically
considered Mom’s legitimate Child. Therefore Joan can inherit, and she does inherit
along with her adopted sister, Sally, 50/50.
(3) Same as (2), but Jeremiah is D’s half brother rather than half Uncle.
ANSWER: This is one of the two times when § 117(e) will kick in!
BOTTOM LINE: Sally takes everything, but as natural child of D!!!!
RATIONALE: casebook p. 70. Jeremiah shifts closer to D (from “Grandparents” column
to “Parents” column. Whenever deceased’s parent and adopted child’s grandparent are
the same, you have family relationships within the statute’s “close family.” Therefore
Sally is, in relation to D, D’s adopted niece. In this situation, Sally is so close that §
117(e) says she shall inherit through the natural relationship.
BUT NOTE: If the deceased is the Child’s natural grandparent, or in any other situation,
the Child inherits as adopted child.
(A) Suppose in this case that Sally had predeceased D and was survived by
her son Sam?
Statute doesn’t apply!
(4)
D has adopted her grandson a1. what is a1’s share of D’s estate?
ANSWER: Again, this is the “close family” relationship of § 117. a1 would
inherit as natural child of A unless the deceased is, as in this situation, the child’s
natural grandparent.
BOTTOM LINE: a1 inherits as D’s adopted child.
(5) Suppose in (1) that Sally (D’s natural daughter) had been adopted by D’s
“domestic partner” Gina?
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ANSWER: Sally is cut off!!!!! She is a stranger to her natural parent and natural family
for inheritance purposes!!!
RATIONALE: Gina and Sally’s Mother cannot marry. Therefore Gina cannot be a
stepparent, and therefore if Gina adopts Sally, § 117(d) does not apply! Thus Sally will be
cut off from her natural parent and family for inheritance purposes.
(6) Suppose in (1) that Sally D had no estate to speak of, but was killed through the
negligence of X. Who is entitled to the proceeds of the wrongful death action?
TRICK QUESTION! Your estate is not entitled to proceeds in the first place! Your estate
can sue for personal injury or personal cause of action. However, a wrongful death action
can only be brought by your relatives, and even then they must show (a) they would take
as intestate distributees and (b) that they have suffered pecuniary loss.
NOTE: What is pecuniary loss? How do you show this? Can be a difficult question,
Courts may answer/determine it broadly See e.g., Gonzalez.
(7) Suppose in (1) that D died with a will which left “$10,000 to each of my issue and
the rest of my estate to my heirs.”
ANSWER: FIRST STEP: EPTL § 4-1.1., issue are descendants of any degree.
Relationship must be by consanguinity (relationship must be by blood). This is why Dan
is out. Dan’s only related to D through Dan’s Moms marriage to D. Joan is out as well
again, since as a non-marital child of a father, there needs to be “legitimatized.”
NEXT STEP: What happens to the $10k? It becomes residuary. A will should always
have a residuary clause, and where it doesn’t, it may be grounds for malpractice.
Residuary clauses tell you were residuary property is to go. This Will says “rest of my
estate to my heirs.”
NEXT STEP: WARNING Realize that heirs are different from issue!!! Definition of
issue was in EPTL § 4-1.1, definition of distributees is in EPTL § 1-2.5, definition of the
class known as “heirs” when “heirs” is named in a Will is in EPTL § 2-1.3.
Commentary
§ 2-1.3 is codification of the Best decision. Best says that we’re not going to let the
adopted child be a member of the class of “of my heirs” in a will instrument absent a
specific mentioning.
I.
Assisted Reproduction Techniques EPTL § 73
1. In General
The situation is thus: two people are married. Wife bears a child.
a. ISSUE/AMBIGUITY:
Is the child the husband’s child? At common law, child born to married couple was a
child of the married couple. This was the “strongest presumption known to common
law.” But now you can rebut the presumption easily with a DNA test.
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RULE/LAW: If a woman gives birth after her husband’s death through in vitro
fertilization of his frozen sperm, then we assume the child is the legitimate child
of her husband as long as there was consent. See Martin B.
NOTE: This is why Professor Joyce said that the law in this area is developing
along contractual lines.
b. Assumption is by Operation of Law
Where § 73 is satisfied, it is not a rebuttable presumption. It is a rule of law based on
consent. It would not cover the situation in Martin B.§ 73 is not a rebuttable presumption.
It’s a rule of law based basically on consent. If the proposal of the Surrogates court is
passed it would be a modest change in this area. It’s pretty clear in New York and in most
jurisdictions that this person can’t inherit through intestacy because for children born
after dad’s death it requires conception during his life and birth after. But if you freeze
the guy’s sperm wife can conceive years after the guy dies.
c. Marriage Required
§ 73 only applies if a woman is married at the time of insemination. See Woodward.
J.
Advancments EPTL § 2-1.5.
NOTE: Never do an advancement for a client in real life. Just do a will instead.
1. Contemporaneous Writing Requirement
In order for an advancement to be valid, § 2-1.5 requires that it accompanied by a
contemporaneous writing which evidences the donors intention that the gift be treated as
an advancement.
RATIONALE: This requirement is to prevent children of decedents to argue that
inter vivos transfers were gifts vs. advancements. Children would argue over this
because the end result would be to enlarge or reduce their share.
2. Calculation
Calculate the total estate including the present value of the advancement!
NOTE: If the advancement were cash, it would be easy, cash is worth its face value.
BUT NOTE: If the advancement was real property, like Blackacre, it may have
appreciated or depreciated since transfer!!! In this case, when calculating the value of the
net estate use the present value of Blackacre (either its appreciated or depreciated current
value).
NOTE ALSO: Yes, this does mean that if the property declined in value, the donee child
had somewhat of a windfall.
3. Where an Advancement might be unavoidable:
This would be a rare situation, indeed. However, if the decedent cannot make a will
(perhaps due to incompetence), then the guardian might be able to do an advancement
for the child.
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NOTE: A guardian is not qualified to make a will. With an advancement, however, the
Child will “pay back,” so to speak, whatever he got from the estate after the decedent’s
death.
4. Where Husband and Wife die as result of a “Common Disaster”
a. Rules
EPTL § 2-1.6 contain rules for how the property is to pass when spouses die
together in a “common disaster.”
Subsection (a) When you can’t tell who died first, title to property will pass
according to this statute.
Subsection (b) Everything gets divided equally and distributed respectively to
hose who would have otherwise taken the whole.
Subsection (c) Jointly held property is severed and becomes tenancy in common.
Each share passes through intestacy.
Subsection (d) Where an insured and beneficiary die simultaneously, then the
payout is split between them. NOTE: This is because normally when a beneficiary
dies before the insured, the policy is cancelled.
Subsection (e) If a Will provides for this situation (for the common disaster
situation), then the Will governs.
b. What the Statute Doesn’t include
Many states and UPC have a 120 hour rule. New York does not. Therefore spouse
who lives a split second longer gets everything. This is a question of proof which
sometimes turns on minute details such as which side of the car got hit.
c. Calculation: EPTL § 2-1.6 is our “common disaster” statute. Professor Joyce
says also everything will come out the same; conceptually make two estates
(Hodge pots).
K.
Disclaimers and renunciations
1. In General
Disclaimers and renunciations are governed by EPTL 2-1.11 (Renunciation of Property
Interests). If you do things correctly, then you’re treated as though you never got the property.
The result from an economic perspective is indistinguishable from the situation where you take
property and give it to someone else.
2. Disclaimer must be absolute
You must not accept the property at all! If you receive consideration for the property, it will be
interpreted as though you accepted the property! This is because in order to receive consideration
there must have been a bargained for exchange. You can only bargain for an exchange of
property you already own, and thus you have accepted the property in the first place.
3. Disclaimer ineffective with respect to some creditors
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The government and certain social welfare creditors will be able to collect on property devised to
you in a will even if you properly and perfectly disclaim. However ordinary creditors, like
consumer creditors get screwed.
EXAMPLE 1: You owe taxes. You get money under a will. You disclaim, IRS still gets
its money! You can’t fuck with Uncle Sam.
EXAMPLE 2: Same facts as above only you owe money to Medicaid or through some
other public assistance program. Disclaimer doesn’t work even if you try, and these
creditors get their money.
EXAMPLE 3: Same facts as number 1 except the creditor is Sears. You disclaim, Sears is
screwed.
4. Creditor’s Argument
ARGUMENT: Creditor will point to CPLR § 5203(a) and say that distributee, in simply
performing the act of disclaiming his inheritance, has in effect made a “transfer.” CPRL §
5203(a) voids any transfer by X after the Creditor has filing of their judgment. Therefore, X
cannot disclaim.
RESULT: Creditor will lose! Only when the creditor is the government or some kind of support
creditor, tax creditor or public assistance creditor with the disclaimer be ineffective.
RATIONALE: As noted below, when an individual disclaims their inheritance, its as though the
disclaiming individual predeceased the decedent. Therefore, he never did make a transfer,
because he never got the property to begin with.
5 Effect of Successful Disclaimer
The renunciation has the same effect as though the disclaiming individual had predeceased the
decedent. e never did make a transfer, because he never got the stuff to begin with.
NOTE: This “predeceasing” only effects the flow of property, i.e.: who it goes to. (The
disclaiming individual’s children or parents, et cetera). The “predeceasing” does not affect
anyone’s share of property, or the percentage that they get.
6. Disclaimed Property cannot pass to spouse.
The statute only kicks in when there’s a representation issue. For example, if bob didn’t have any
children, then the second sentence would not apply and bob would be treated as predeceased,
wife wouldn’t get anything, James gets all.
NOTE: Keep in mind that it’s only the per stirpital or representation share that’s affected.
ISSUE/AMBIGUITY: What interest would this be to the commissioner of the IRS?
ANSWER: The IRS enacted provisions years ago that say they will follow state law purposes of
estate taxes.
a. Marital Taxes
The amount of money that you can transfer to your spouse is exempt up to a certain
figure. Beyond that, any excess will be taxes. Therefore many people use their disclaimer
to pass property to their children if receiving it means that they would exceed the exempt
amount.
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NOTE: The max exemption today is 2 million under Federal Law, 1 million under New
York law.
7. Renunciation/Disclaimer by Guardian
EPTL § 2-1.11 says that a guardian can make a renunciation but only if authorized by the Court!
If the guardian proposes to the court renunciation to save on taxes, the Court will say no. The
Court also cannot allow giving away a child’s half.
HYPO: What if Guardian proposes a contract, whereby disclaimed property goes to the
surviving spouse AND which would guarantee that the surviving spouse would take care of their
children?
ANSWER: Court still says that you can’t it because it wouldn’t be a good renunciation. You
cannot accept and then renounce.
L.
Effect of Murder
1. DISTINGUISH
Your estate can pursue a personal injury action against someone for your death, but your estate
cannot pursue a wrongful death action on your behalf. Only your family can do this. Since
neither you nor your estate has the right to bring a wrongful death action, you cannot say in your
will how you wish proceeds from a wrongful action to be distributed.
a. Necessary Elements
In order to bring a wrongful death action you must . . .
i. Be an Intestate Distributees
In order to bring a wrongful death action, you need to show that you would take
under intestacy.
ii. Suffer Pecuniary Loss
If you’re an intestate distributee with no pecuniary loss, then you’re out.
2. Step One
Isolate the probate property! Any property of the Murderer which would pass outside of probate
does pass outside of probate. Any property of the victim which would (pass outside of probate)
AND (not go to the murderer) passes outside of probate.
ARGUMENT: Argue that the survivors of the victim might have a way to at least get their hands
on some or all of the murder’s estate by suing for wrongful death! Be sure to show that survivors
of the victim were (a) the intestate distributees of the victim and (b) suffered pecuniary loss)
2. Murder Rule
You cannot profit by your own wrong. See Riggs v. Palmer
a. Rule is Judicial in Nature, not By Statute
In New York, this is not statutory!!! It is a judicial rule, but the case law is all very solid
that the rule is a sound and secure one. See, e.g., Riggs, Covert.
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ARGUMENT: Since EPTL § 4-1.1 are the legislatures rules of intestacy, and no statute
disinherits you when you commit murder, then when you murder someone from whom
you’d inherit through intestacy, the Court cannot prevent you from doing so.
COURTER ARGUMENT: EPTL § 4-1.1 is a default rule. The legislative purpose was so
that property would pass, in the absence of a Will, to those who most people would want
their property to go to. Since H murdered W, W would not have wanted H to inherit, and
therefore by disallowing H to do so, we effectuate the legislature’s intent under EPTL §
4-1.1.
NOTE ALSO: In New York, there is a statute saying that you cannot assist in suicide.
Therefore survivors of the decedent can argue that you are still profiting by your wrong.
b. RESULT: probate property cannot pass to the murder. (Money, life insurance,
convenience bank accounts, cash, et cetera).
3. Bank Account held as Joint Tenants
This is governed outright by EPTL § 4-1.6. Where a murderer and his victim hold title to bank
accounts as joint tenants, the murderer is entitled to his share, but forfeits his right of
survivorship in his victims share. EPTL § 4-1.16; See, also Matter of Kiejliches.
BUT NOTE: EPTL § 4-1.6 only applies to bank accounts, not to realty.
4. Real Property held as Joint Tenants
The effect of murder on the interests of a murderer and his victim in real property is determined
by caselaw. Civil Rights Law § 79-b provides that conviction of a crime “does not work a
forfeiture of any property, real or personal, or any right or interest therein.” To get around this
the Court in Riggs v. Palmer held that (a) the murderer is entitled to keep his own property, that
(b) the murderer deprived his victim of the right of survivorship, and that (c) the murderer had
only a “commuted life-estate.” (d) Since the murderer committed suicide himself shortly
thereafter, the value of the life-estate was valued at zero, and the property was distriuted to the
wife’s beneficiaries. Riggs v. Palmer.
a. Where Will gives Residuary to Surviving Spouse
This is governed by Covert. The murderer’s family was innocent and could take their
share of the residuary gift made by the victim.
ARUGUMENT: It is against the murderer’s civil rights to prevent make him forfeit his surviving
interest in the victim’s property.
COUNTER ARUGMENT: We don’t make the Murderer forfeit anything, we simply prevent
him from gaining at the expense of his victim.
5. Where murderer cannot be, or has not been, convicted.
EXAMPLE: H kills his wife, then immediately afterward kills himself. You cannot convict a
dead person. What result? Does H inherit all of W’s property, thus enriching his family
exclusively and at the expense of his victims?
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ANSWER: NO! Although EPTL § 4-1.6 does not apply because there is no conviction, Covert
does apply!
Problems
H kills W (his wife) and thereafter kills himself. H is survived only by his borther John. W
is survived only by her sister, Sarah. Both H & W died intestate.
H’s net estate is $5,000.
W’s net estate is $10,000.
There was a “true” joint bank account, balance of $50,000 at death of H & W. There was
also Blackacre, owned by H & W as tenants by the entirety (value - $100,000).
Who is entitled to what?
ANSWER: Step One, Isolate the probate property.
H is the murderer and died last. His net estate of $5,000 therefore passes through intestacy
(because they both died intestate) to his brother John.
W’s Net Estate:
W’s net estate goes to her distributee’s because of Riggs and Covert.
NOTE: If there was a Totten trust in the name of W for H it would also go to Sarah.
Convenience joint account, same thing. Life insurance proceeds on W to H, same thing
still. If will, W gives everything to H, H kills W, everything goes to Sarah. In fact, it will
go to New York State before it goes to H.
True Joint Bank Account
This is governed by EPTL § 4-1.6. The account is not rendered a tenancy in common, but
is treated as one. RESULT: H’s half goes to John, W’s half goes to Sarah.
HYPO: Suppose that the murderer puts all the money in the joint account and then he kills the
joint tenant.
PROPOSED ANSWER: He’s the one that put it in therefore literally it looks like he gets
everything. But that’s crazy because when he set up the joint account he’s given half the property
away. He even has to pay tax on it. – Prof. Joyce.
ISSUE/AMBIGUITY: Civil Rights Law § 79-b prevents the government from making you
forfeit your interest in property.
PROPOSED ANSWER: Argue that the statute means that you don’t get anything more than you
contributed. – Prof. Joyce.
Blackacre, owned as tenants by the entirety.
This is governed by Cardozo. In a tenancy by the entirety you have the right to
possession, as in joint tenancy. Unlike joint tenancy, however, the right of survivorship is
not unilaterally severable.
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BOTTOM LINE: All the murderer can get is a life estate in ½ and he cannot survive to
the whole.
Part II
Protection of the Family
A. SPOUSAL’S ELECTIVE SHARE
 CALCULATION
 WAIVER OF RIGHT OF ELECTION
 DISINHERITANCE OF CHILDREN
B. AFTERBORN CHILDREN
A.
Spousal’s Elective Share
1. In General
EPTL § 5-1.1A provides for the surviving spouse to chose an “elective share.”
The surviving spouse has a right to an Elective Share against the Will. The value of her elective
share is calculated against a net estate which consists of both the probate estate, and testamentary
substitutes.
BUT NOTE: The testamentary substitutes for calculating the Wife’s elective share are
potentially a subsection of the lager class of general testamentary substitutes.
2. How Funded
If the surviving spouse decides to take her elective share, then it is funded ratably (in proportion)
by all parties who received under either the Will or through testamentary substitutes. Individuals
funding the surviving spouse’s elective share can chose to do so through (a) cash, (b) interest in
property, or (c) a combination of the two.
3. Value of Elective Share
The right of election is the greater of $50k or 1/3 of a pot consisting of both probate and
testamentary substitutes. First arrive at this figure. However, once you do, subtract the value of
of property which is already going to the surviving spouse (1) absolutely (i.e., everything which
passes through intestacy is absolute), (2) through testamentary substitute, and (3) under the will.
NOTE: Life-estates are not things which pass absolutely. Therefore do not include them
in reducing the value of the surviving spouses elective share. WARNING: Also be on the
lookout for non-absolute testamentary substitutes.
a. Distinguish
In intestacy, the surviving spouse is entitled to $50 plus ½ of the residue.
BOTTOM LINE: Refer to chart for net value of all nets, as well as
formula for calculating totals.
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NOTE: Whether the will is ultimately thrown out or stays, the first three columns will
always remain the same because you’re going to have the same probate estate, the same
testamentary substitutes and the same elective share. The only time the numbers get
different is when you ask: “What is her elective share reduced by?”
NOTE: After filling out the chart, address whether surviving spouse would be better off
contesting the will, and if so, if she would have standing to do so!
4. Which testamentary substitutes court for purposes of the elective share?
The key is revocability. Before EPTL § 5-1.1A, the law said that any testamentary transfer in
which the Transferor retained control was illusory. Therefore the transferor’s intent was
potentially to disinherit his spouse which we cannot allow. Therefore, any transfer of a
testamentary substitute in which the transferor retained control is counted for purpose of
calculating the surviving spouse’s net elective share. However, any transfer in which the
transferor did not retain control (i.e., which was irrevocable) is not counted in calculating the
wife’s net elective share.
a. Inter vivos gifts (Painting to G. Washington)
Irrevocable transfers made before the decedent’s marriage are not testamentary
substitutes, but revocable transfers might be.
i) EPTL § 5-1.1A(b)(1)(B): any outright gift made within a year of death will be
considered a testamentary substitute in calculating the surviving spouses net
elective share, unless it qualifies for an exclusion under the gift tax.
BUT NOTE: Where you give a remainder in fee simple away, and retain only a
life-estate for yourself, technically you have given the whole thing away.
(Because the “forever” part is ownership.” However, for purposes of calculating
the wife’s net elective share, the statute says that we do calculate it as a
testamentary substitute. This is the exception!
IMPACT/SIGNIFICANCE: If people are hell-bent on screwing their wife
at death, fine, just give EVERYTHING away AND STAY ALIVE for at
least one year. If you keep a life estate for yourself, however, your wife is
entitled to a portion of its value.
NOTE ALSO: If you retain a life estate for yourself, then the total value of
the property (life estate + remainder) is counted as a testamentary
substitute for purposes of the surviving spouses net elective share.
COMPARE: If you give a remainder to your son, and a life estate to your
daughter, then only the value of the remainder is counted as a testamentary
substitute.
b. Gifts Causa Mortis
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These are lifetime gifts that become revocable if the donor surives the event that spurred
the gift. This includes gifts causa mortis made before and after the marriage (because
gifts causa mortis are revocable).
c. Totten Trusts
EPTL 7-5.1(d) defines a Totten Trust as a bank account in the name of the decedent
payable on his death to a named beneficiary. These are fully revocable and as such are
included as testamentary substitutes.
d. Joint Bank Accounts
EPTL § 5-1.1A(D). Where a bank account is payable to either survivor, § 675 of the
Banking Laws provides that the account is conclusively presumed to be a true joint
tenancy.
NOTE: If you get this in the exam, first thing to ask is, is this a convenience account? If
so don’t worry about this because it’s in the probate estate. Only if it is a true joint
account is it covered by capital D. And if so, again you have to worry about who supplied
the consideration. The spouse can prove what the depositor put in by deposit slips and
stuff, if so, that amount will not be considered to be a testamentary substitute. But if the
evidence shows that Doris put in the money, then it will also not be a testamentary
substitute?
This should only be a test. Sub. To the extent of ½ no matter who put the consideration
in. Why? What if Harry put it all in, 10k. We know he gave $5k to doris. If instead he
said I’m going to put 5 in a bank account for me and 5 in an account for Doris, then
Doris’ account is out. Same thing in a joint bank account because Harry gave her half.
BOTTOM LINE: Where property is jointly held and the decedent supplied all the
consideration, it comes back in 100%. Unless the spouse is on the other side in which
case it comes back to a half. But if Doris (third party) supplied all the consideration then
it’s not in at all.
These are counted to the extent of the decedent’s contribution, which will conclusively be
considered one-half if the wife is the other joint owner.
NOTE: The surviving spouse has the burden of proof on the decedent’s contribution, and
the court can hear evidence on that point that would otherwise violate the Dead Man’s
Statute.
e. Life Insurance
This is an exception. It used to be specifically categorized not as a testamentary substitute
for purposes of calculating the surviving spouses net elective share. When the statute was
amended, it was specifically categorized as being a testamentary substitute for purposes
of calculating the surviving spouse’s share. When the insurance industry got wind of this,
the forced this change out of the statute.
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ARGMENT: It has been argued that since life insurance was specifically NOT a
testamentary substitute, and now is not mentioned at all, then the Court should
conclude it IS a testamentary substitute, especially in light of EPTL § 5-1.1A
subsection (f)(ii).
HELD: In light of legislative history, life insurance cannot be considered a
testamentary substitute. Boyd.
NOTE: The decision in this case carries great sway because the Judge who
decided it was also of the committee that drafted the amendment.
f. Real Property held as Tenancy by the Entirety or as Joint Tenants
A tenancy by the entirety can by definition only benefit the spouse. BUT NOTE: This is
still a testamentary substitute, because the question we are considering is: “how rich is
the decedent?” Jointly held property is covered by E(i).
BUT NOTE: 5-1.1A(I)(2) Transactions described in clause (D) or (E)(i) (j/t or TBE)
Shall be treated as testamentary substitutes in the proportion that the funds on deposit
were the property of the decedent immediately before the deposit or the consideration for
the property described in clause (E)(i) was furnished by the decedent.
ENGLISH TRANSLATION: The statute is saying that they are testamentary
substitutes to the extent that the decedent supplied the consideration AND it’s up
to the Spouse to say how much the decedent supplied, unless the spouse will
benefit from the transaction in which case it is a conclusive presumption that the
decedent supplied half.
BOTTOM LINE: In a TBE, it’s a substitute to the extent of one half, no mater
who supplied the consideration.
EXAMPLE: W inherits mom’s property, puts it into a house TBE with her husband.
Husband dies. What about the House as TBE, it’s a testamentary substitute to the tune of
½. True for real property held in Joint Tenancy as well. If the equity is 150, then half is
75. The notion is that the other half is already hers. The ½ is the decedent spouse’s half.
g. Pension Death Benefits
EPTL § 5-1.1A(b)(1)(G). 50% of the pension will be a testamentary substitute unless the
beneficiary designation was made before Sept. 1 1992. This is to cover the ERISA
payment.
h. Property with a power of appointment
BOTTOM LINE: If you retain any strings, then it will be considered a testamentary
substitute.
Our statute says that it is subject to the right of election.
BUT NOTE: The power has to be presently exercisable. If you set up a trust and
give yourself a life estate, and give your son the power to appoint anyone he
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wants at his death, his spouse cannot get it because it is not presently exercisable.
When is it exercisable? At death!
BUT NOTE: If on the other hand, it’s your money to begin with, and you transfer
it retaining the power to revoke or a life estate, or the power to appoint a
remainder then it’s in. But that’s retain. While the above is receive.
i. Any irrevocable transfer made within a year of decedent’s death.
NOTE: If you give away something irrevocably before you get married, then by
definition it is not property acquired by marriage.
Any property that you give away irrevocably during marriage, within a year of your death
is a testamentary substitute for purposes of calculating the wifes net elective share?
i. Trusts
If you retain the power to control the trust remainder person in anyway, even if you given
away the right to name yourself, then it is a testamentary substitute. See, e.g., Reynolds.
Decide whether the decedent retained any “meaningful control.”
j. Securities
These are part of the probate estate under EPTL § 5-3.1
k. P.O.D. Accounts
There are the same as totten trusts. It’s given the same treatment under (E)(2).
5. Waiver or Release of the Right of Election
a. In General
EPTL § 5-1.1A(e). A wavier of the right of election is effective whether executed before
or after marriage. It can be unilateral (doesn’t have to be for consideration). Can be
absolute or conditional, can be complete or partial. Can be done before or after marriage.
It does have to be in writing, however, and it does have to be notarized.
b. Practical consideration
i) Ethical considerations
If your client comes to you immediately before his marriage and wants you draw
up a wavier for the fiancée to sign, you can do so, but make sure you advice her to
get her own attorney because you cannot keep anything she’s telling you
confidential, et cetera.
ii) You can never be certain that they will be enforceable when you die. They’re
always attackable. The person could say, they didn’t understand, there was fraud,
there was duress, and there was Greiff most of the time is works. Most of the
time, it sticks. But sometimes the challenge succeeds.
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HYPO: Hilda wants to know how much Harry is worth. Harry says 6 million to you. You do due
diligence and confirm, tell Hilda’s attorney. It turns out Harry is worth 60 million. Is the
agreement good?
ANSWER: No, fraud.
HYPO: I am worth sixty million, if you don’t sign anyway, you’re DEAD!
RESULT: Duress, agreement is no good.
HYPO: Same facts as first hypo, only Harry says, “It’s none of her business. Tell her to sign or
we’re not going to get married.”
ANSWER: Engage in analysis of Davis, Kazubo, Greiff, Simeon.
 “It is not necessary to the validity of the agreement that the decedent disclose the
extent of his wealth.” This is a complete minority rule. Davis
 Validity requires disclosure. This is the majority rule. Simeon
 The burden is on the “stronger” part to prove that there was no unfair advantage.
Greiff.
 (a) Factors to consider in determining whether an inequality existed which created
an unfair advantage. (b) The issue is a burden of persuasion which itself turns on
factual determinations.
BOTTOM LINE: Unfair advantage will result where inequality existed in negotiating and
signing the waiver. To determine whether inequality existed, cases such as Kazubo and Grieff
require that we look at the whole picture. Particularized inequality is a factual question.
REAL BOTTOM LINE: Don’t want to disclose? That’s fine. But you have to understand that the
risk will be an invalidation of the waiver.
HYPO: Can she waiver her right to election and to disclosure? You can’t be as straight forward
with this answer, but you can say the same thing as the waiver to election. The court might say
that it’s against public policy.
HYPO: You fulfill all the necessary requirements. Full disclosure, no inequality, equal
knowledge, etc. At time of agreement both Harry and Hilda are worth 6 million. BUT: when
Harry dies, Harry is worth 600 million. What if she argues that it’s unconscionable? That’s the
Simeon issue.
ANALYSIS:
i) There is a proposed statute would permit you to attack the wavier as unconscionable.
ii) The controlling law is in the divorce area and has to do with divorce agreements. It is
based on the issue is raised of whether a separation agreements can be attacked as
unconscionable.
BOTTOM LINE: Unconscionable is out there as an argument. There is a statute in the
domestic relations law which says that an agreement can be attacked as not being fair at
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the time of its execution or unconscionable at time of judgment. But the case law is pretty
solid that it only applies to maintenance and alimony, not to divorce or anything.
6. Disinheritance of Children
HYPO: Victim dies from Mesothelioma and leaves five children. Our victim lived long enough
to settle the case for several million dollars. If he had died, then the action would have been
brought on behalf of the children. Instead, victim leaves his entire estate to the American Cancer
Society? If the children are too young to bring their own action, a guardian will be appointed and
he’ll come to you and say, what can you do for us? There’s several million dollars in the estate
going to the American Cancer Society, and all the kids are going to have to go on welfare.
ANALYSIS:
We have no statute against this. One of the things you can do is try to get the will thrown out.
Then the kids share in several million dollars and you got a decent sized fee coming. Or you
argue that the testator in his last throes was unduly influenced by the no-good, manipulative,
coercive cancer society. But this all comes later in the course. What do we have at this point to
stop this from happening?
Case: L.W.K. v. E.R.C.
The law in every state in the union except Louisiana is that if you fall behind in support,
or if you never support (when you are required to) then your kids can inherit (as
creditors), but if you’re been supporting them all along, and then you die, they get
nothing from the estate. Your obligation ends at death.
ARGUMENTS (for Children):
a. Policy: Creditors can get money from your estate because of policy. If you run up a
debt, we want creditors get paid.
b. Statutory: The right of election protects the family, therefore legislative policy is meant
to protect the family.
ARGUMENTS (for American Cancer Society)
a. It was the will of the testator to give this money to our Charitable Mission.
b. The Surviving Spouse’s Right of Election will take care of the Children.
c. If the Legislature wanted to make a right of election for the children, they could have.
PROFESSOR SAYS:
 Arguments for the American Cancer society will probably win.
 You have to take the case. Because if you don’t, the next person won’t either. You
might lose, but maybe the next person won’t, especially as the courts see what an
injustice this is, and how many people are turning to the judiciary for equitable
relief.
NOTE: Why hasn’t the law changed? Because the typical situation is that W will get
everything. And most of the time W is going to take care of the kids. HYPO: What if W
is gone? Then everything goes to the kids.
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B.
Afterborn Children
1. In General
EPTL § 5-3.2. Revocatory effect of birth of child after execution of will.
HYPO: How do you mention a child not born?
ANSWER: “If I ever have a child, then . . .”
HYPO: T executes will leaving everything to the American Cancer Society, then dies survived
by W, his wife, and one child. This child was born after the execution of the decedent’s will.
There are no other children.
What are the rights of W and C?
ANSWER: Step one, go through analysis of W’s rights.
Step two: discuss EPTL § 5-3.2
Go through the statute and make sure each provision is met.
(1) These are the thresholds:
Child has to be born after (born before, no good, not provided for by 5-3.2)
Child cannot have been provided for by any settlement
This is a very old statute. We’d use different terms today, like testamentary
substitutes. This is so regardless of whether the Child is a vested or contingent
beneficiary, he’d still be provided for even though its contingent.
Cannot be mentioned in the Will.
“No child may inherit under this will . . .” Is sufficient.
NOTE: If T makes a Will, and says everything to Wife, and executes an affidavit
saying that he doesn’t want any kids to take and explains why, the kid will still
take if not mentioned in the will.
(2) Once thresholds are met, then determine what share the kid gets.
a. If no other children, child gets an intestate share.
BOTTOM LINE TO THIS HYPO:
Wife cannot take her elective share because she gets an equal amount through testamentary
substitutes.
Child gets $25k. Why? Read the Statute Closely
EPTL § 5-3.1(a)(2): The child gets what he would get under intestacy. Under intestacy $200k
testamentary substitutes pass outside of everything, leaving $100k. Of this, surviving spouse
get’s $50k + 1/2 for a total of $75k! This leaves Child with $25k!!!!!!
Problems
1. In Year 1 A is born to T. T executes a wil in Year 2. In year 23, a1 is born to A. A dies in
year 25. T dies in year 26.
(a) is a1 entitled to protection under § 5-3.2?
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ANSWER: a1 cannot inherit because his parent, A did not inherit. In order to get
protection under EPTL § 5-3.2, the child must be afterborn in relation to T’s will
execution. NOTE: The language of § 5-3.2 says “child,” not “issue.”
(b) Suppose A was born in year 3?
ANSWER: A cannot take anything because A predeceased T. However, the a1 has a
derivative right, which lets the grandchild can take by representation. This is a judicial
construction. *NOTE, A could not take because he predeceased T, you need to be born
after, and T needs to die before.
Problem 2
Joyce, Joyce, Joyce . . . this wasn’t really a problem.
Problem 3
T made a will in 1997. At that time he had a wife (W) and two children, X and Y. Later,
child Z was born. T dies in 2007, survived by W, X & Y & Z. X & Y are adults. Z is 14
years old. T’s net estate is valued at $100,000.
Who is entitled to what in the following situations?
(a)
T’s will provides: “I leave my entire estate to W. She will take care of
everything.”
ANSWER: Child Cannot inherit.
ANALYSIS: “She will take care of everything . . .” is not a mention. “She will take care
of the children” would be a mention. Since there is no mention, then under 5-3.2, then the
after-born is not entitled to a share. That’s the basic policy change when NY went the
UPC route.
If you have kids when you execute your will, and you don’t leave them anything because
you’re giving everything to your wife, the UPC and NY Legislature say that you’re
thinking that W will take care of your living children. The after-born child in this
situation does not take an intestate share because otherwise the kids who were alive when
you made the will would get nothing and the after-born kid would get an intestate share.
CRITICISM: Maybe there was a reason why T omitted x and y. Maybe he really
expected W to take care of everything. Maybe x and y are adults and don’t need the
money. But maybe he already provided for them in other ways? Remember! It’s a default
statute, it does what the legislature says most people will do most of the time. The real
question is, what’s the alternative?
(b)
T’s will provides: “I leave $1 each to X and Y; the residue to W.”
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ANSWER: You might be tempted to say that x, y, and z each get 1/3 of $2. That’s the
result of a close reading of the statute. WRONG! Always hit (iii). What is the intention of
the testator? ARGUE: It’s clear that when T left $1 each to x and y, that’s all he wanted
to give them. He wasn’t thinking about Z. All (iii) says, is that if it looks like T’s intent
was to screw x and y, and ONLY x and y, then z will get his entire intestate share.
HYPO: You have a testator who says I don’t want x and y to get anything. Not even a
dollar. I can’t even bring myself to writing their name in my will, so I’m leaving
everything to the American Cancer Society. Then z get’s nothing. It only applies if (he
gives x and y a limited provision). Otherwise they get nothing.
(c)
T’s will provides: “I leave a life estate in all my property to W, and the
remainder in all my property to X and Y equally.”
ANSWER: You have to keep your eye on the ball. Remember that W is around. In order
to determine what Z’s rights are, you’re going to have to look at what W can do? W can
exercise her right of election and take greater of $50k or a 1/3. Here, the estate is $100k,
so she’d take $50. Then what? It accelerates unless the will says otherwise! The
remaining $50k goes to x and y, and z.
Part III
~ and ~
Most of Part IV
All things Will related
A.
In General
EPTL § 1-2.19. The Definition of a Will.
“A will is an oral declaration or written instrument that complies with will formalities
(found in 3-2.1 or 3-2.2) to take effect upon death, whereby a person does this or does
that . . . and which is revocable during his lifetime.”
Commentary
Defining a will like that is saying that if you want to make a transfer that is not a
will, then it has to be irrevocable. The essence of property that is subject to a will
is that it is property that has not been transferred irrevocably during lifetime.
1. Will Execution
EPTL § 3-2.1. Execution of Wills
a. Ideally
Who should sign for the Testator? A: The Testator.
What should the Testator sign? A: His full name.
What less than the full name could the Testator sign and still leave the signature valid?
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NOTE: There are exceptions to these requirements for nuncupative (oral) and
holographic (handwritten) wills. See EPTL § 3-2.2.
b. Location of Signature
Wills shall be signed at the end thereof by the testator, or in the name of the testator, by
another person in his presence and direction. So, if someone else signs, IT MUST HAVE
BEEN in the testator’s presence.
c. The “presence” requirement
ISSUE/AMBIGUITY: How strict must the requirement of presence be complied with?
EXAMPLE: Testator signed his will in the presence of two witnesses. The
witnesses then went into another room to sign it themselves. The doors between
the two rooms remained open. Doctor’s wife signed in testator’s vision, Doctor
signed out of.
Held: “We are convinced that any of the senses that a testator possesses, which
enable him to know whether another is near at hand and what he is doing, may be
employed by him in determining whether the attesters are in his presence as they
sign his will.” Demaris.
Commentary
There’s been a move over the last few years towards substantial compliance. Some
jurisdictions say Courts have leeway in reviewing statutory strictures. If you have one
witness to a will, the court is not going to say substantial compliance. But, with a word
like “presence?” There’s some leeway in that. The chance for fraud here was very minor,
and so the purpose of the statute was satisfied.
i) Practical Considerations
The problem with a Demaris case is that you never know how the case is going to
come out. You’re going to file an objection, you have a right to and you will ask
for a jury, and you’re going to tell the jury what the will says, which is that
everything goes to the American Cancer Society, and I took care of my father
while he suffered in his last days, and you know what the jury’s going to do?
Invalidate the will because it wasn’t signed, strictly speaking, in the testator’s
presence.
BUT NOTE: The other side will say to you, “You’re not going to get to a
jury!” They’re going to be a motion for summary judgment by the
executor who’s going to argue substantial compliance!
IMPACT/SIGNIFICANCE: Judges are now granting these summary
judgment motions just because they don’t trust the jury. Also to prevent
courts from being clogged up with these contests.
ii) Legal issue on summary judgment:
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The legal issue on summary judgment is whether there is an issue of material fact.
Here the question of fact is “presence.” Judge are really supposed to let an issue
go to the jury only if they don’t know what happened, that’s what’s supposed to
go on.
COMPARE: One of the hardest issue to get summary judgment on is the question
of “undue influence.” HYPO: Woman tells testator (who hesitates to sign) “be a
man.” Is that undue influence?
ANSWER: “Who the hell knows?” – Professor Joyce
d. Proxy Signors
EPTL § 3-2.1(a)(1)(C). Proxy signing provision. If you sign for the testator, then you also
have to sign, and put your address and you can no longer be a witness to the will.
BOTTOM LINE: Statute says that not only can this person not be a witness, but they also
have to sign. It also says that “failure of person to affix his address shall not affect the
validity of the will.” What kind of rule is that? Says put down your address, but if you
don’t, Will will still be valid.
e. Signature assisted vs. controlled by third party.
HYPO: What happens where a witness helps a testator to sign? Are they just steadying
the testator’s hand for him? Or are they controlling the testator?
ANALYSIS: The Bernatowicz case really suggests one of the solutions because in this
case, one of the issues was whether or not the signature was assisted or controlled. If it’s
assisted, then it’s the testator’s signature. Even if the witness helped, it’s still the
testator’s signature and the witness can still sign. If a witness controlled the testator’s
signature, then the testator really didn’t sign, the witness did.
f. Acknowledgment
The testator can acknowledge the signature of someone else as his own, and thus satisfy
the requirement that the signature be his own. If this happens, and the signor is also to be
a witness to the will, then after and only after the testator acknowledges the signature as
his own will the witness be permitted to sign as a witness. Without
RATIONALE: The EPTL equates the act of signing with the act of acknowledging. Now,
put this together with another aspect of the signature. If it was the testator that was
supposed to sign then the testator has to sign with their full name. If the testator can’t sign
their full name then it’s ok if they sign only part of their name. You can put an X on it.
Similarly, if someone else puts an X on, the testator can say “That’s my signature.” The
testator can acknowledge anything coming from any place as his signature.
g. Where do you sign?
Sign at the end. End of what? Below the writing. This is where the witnesses will sign as
well, below the testator’s signature.
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NOTE: End means the end, spatially.
i) Two-page will
Put your signature at the end of the second page.
HYPO: One page will reads, “I leave all my estate to X.” Testator signs and witnesses
sign. Below all this it says, $5k to Y.
ANSWER: Will formalities in New York require that the testator’s signature comes at the
end, spatially, of the document. Because T’s signature here comes before a provision in
the will, the will is invalid.
HYPO: Same facts and result as above. What happens to the $5k?
ANSWER: EPTL § 3-2.1(a)(1)(A): “The presence of any matter following the signature
(that’s the $5k to y), appearing on the will at the time of its execution (put on before the
signature), shall not invalidate such matter (spacially) preceding the signature as appeared
on the will at the time of its execution, except that such matter preceding the signature
shall not be given effect, in the discretion of the surrogate, if it is so incomplete as not to
be readily comprehensible w/o the aid of matter which follows the signature, or if to give
effect to such matter preceding the signature would subvert the testator’s general plan for
the disposition and administration of the estate.”
BOTTOM LINE: If you can show that the provision $5k to y was there at the time of
signing, then the whole will might be invalid. It all depends on whether you can
comprehend what went before the provision without looking at what came after.
BUT NOTE: If the provision, “$5k to Y was added after, chronologically, then it must
still have been done with the requisite Will formalities.
CONTRARY HYPO:
In Testator’s will clause one and two read, respectively:
Blackacre to x & y.
Testator’s Signature.
I mean x for life, remainder to y.
ANALYSIS: If you can show that “I mean x for life, remainder to y.” came after the
signing, then the provision (after the signing) is no good. You’re left with only what
came before the provision. Now you have to figure out what did the testator mean in
saying, “I give Blackacre to x & y.”
If you can show that “I mean x for life, remainder to y.” came before the signature, then
3-2.1(a)(1)(A) presents a problem: you still cannot give effect to the provision. In fact,
you might have to throw the whole will out.
HYPO: Testator says “I leave Blackacre to X and Y.” Signs, and then realizes he wants
to add Z, so he goes ahead and adds, Z won’t take anything. You can’t do that.
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NOTE: Most other jurisdictions will presume valid or invalid, one way or the other. NY
doesn’t. To us, it’s just a question of proof.
HYPO: What if you add something below your signature, then sign all over again, with
witnesses again? Is that ok? Practical answer is that if you got the testator and two
witness to sign all over again, rip up the old one and sign a new Will.
ii) Where Lawyer is involved in drafting will.
If a lawyer isn’t involved in the execution of a will you can have these types of
mess-ups. But if a lawyer is involved, he’s going to say, “Let’s start all over
again.” And in addition, the will is going to read: “This Will was executed under
the supervision of Robert C. Edelstein, admitted to practice in the State of New
York. “
IMPACT/SIGNIFICANCE: A Will is presumed to have been duly executed if
executed under the supervision of an attorney. This presumption might be the
only thing that carries the day, especially in a summary judgment situation.
h. When does the testator sign?
i) In General
It doesn’t matter whether the testator signs before or after in (4)(B). It says the
execution need not be in the precise order. This is because of a case that went to
the Court of Appeals in which the witnesses signed before the testator and the will
was thrown out.
ii) Practical Considerations
But now, who’s really going to sign first? Under perfect circumstances, it’s going
to be the testator. You don’t want to have to rely on that (4)(B). It requires a
“continuing ceremony.” You don’t want to give anyone any chance to challenge
the will at all.
iii) Effect on Witnesses
When the testator signs first, it means the witness have not signed before the
testator. But it also means that the witness have the opportunity to do what they’re
supposed to do before they sign. And in fact, if the witnesses do sign before the
testator they’re lying! Why?
This is because a witness really has two jobs. To attest and subscribe. When they
sign, they tell the world that they’ve accomplished the first job: they have
attested. To attest means that you observed what happened.
Case: Bernatowicz
Held
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(1) The question of whether a signature is assisted or controlled does not turn on
the extent of the aid, but rather whether the act of “signing was in any degree an
act of the testator, acquiesced in and adopted by him.”
(2) The fact that decedent did not request assistance but, rather that his counsel
suggested hat he be assisted does not render the signature invalid.
(3) We reject the contention of respondents that the execution of the will was
invalid because decedent declared the document to be his will before, rather than
after he signed it.
I. Witnesses Requirements
i) How many?
At least two. If you have three, icing on the cake. New York, you only need two.
EPTL § 3-5.1 is the conflict/choice of law statute. Among other things, the statute
says that if a Will is executed in State X and comes here to be probated, if it was
ok in State X, then it will be ok in New York.
ii) What kind of Witnesses do you want?
1/You want a disinterested witness.
At common law, an interested witness meant the will would be no good
because an interested witness was incompetent to testify. In fact,
competency of the witness was testimonial competence, and if the witness
was interested, then they were disqualified.
However, from an evidentiary point of view, this rational is ancient
history. Now we just disclose to the fact finder that the witness is
interested and let the fact finder take that into account. Therefore, for the
same reason, the notion that interested witness will invalidate a will has
fallen by the wayside.
BUT NOTE: Purging statutes fulfill the same role. That’s what § 3-3.2 is.
In general, what these statutes do is say that, if you leave property in your
will to a witness, then the witness can still be a witness and the will can
still be valid, if the witness gives up what’s coming to them under the will.
The major purpose isn’t to take away the witness; interest, the purpose is
to save the will.
WARNING: On exam, if you see two disinterested witnesses don’t
automatically say that the will is void! Save the will! Argue this statute!
2/Age of witness
This is fuzzy. A ten year old who sees an accident can testify, but not a
three year old. Can the ten year old sign? ASK: Can he observe? Can he
communicate? Up until a year ago, Joyce said, “Sure a ten year old
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neighbor could be a witness!” But one state has said you need a witness
who has attained the age of majority. BOTTOM LINE: You’re taking a
chance with a child. They have to be able to comprehend what’s
happening and communicate this to the court. What you’re looking for is
an observing witness.
3/Lawyers staff/secretary
This is fine. But what will witnesses be called on to do? To testify about
the execution ceremony and how the will was prepared and the condition
of the testator, about his competency etc.
Commentary
One of the ironies of this area is that a layperson can give expert testimony
as to mental capacity. “This person appeared to be of sound mind.” If
you’re going to have someone testify to that, you probably want someone
that knows the testator better than your secretary, like your neighbor or
something. It will probably work, but it might be a weak point that
someone can attack.
Problems
T dies with a net estate of $36,000. T is survived by three children (no spouse) X, Y and Z.
Z has two children (Z1 and Z2). T is also survived by unrelated friends, A, B, D & E.
T’s will provides:
“I leave $1,000 to A.
I Leave $5,000 to B.
I Leave $10,000 to X.
I Leave $15,000 to Y.
I Leave the rest to Z.”
Who takes what share?
(a)
if A and B are the only 2 witnesses?
ANSWER: (a) A = 0, B = 0, X = $10, Y = $15, Z = $11
(b)
if A, D, & E are the three witnesses?
ANSWER: EPTL § 3-3.2(a)(2) says that the interested witness has a shot of getting the
money. We cannot determine whether you’re going to get the money until we know if it’s
going to be necessary to call you as a witness at probate. If it does turn out to be
necessary, then you’re going to lose, even though there are two disinterested
witnesses!
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Under 1404 of the SPCA, the statute requires that the surrogate call at least two of the
witnesses. Sometimes what happens is that it depends on the Surrogates feel for the case.
EXAMPLE: Three children of decedent filed for letters of administration.
Another party produced a document they claimed to be a will. Witness testified
that testator never “published” her intention that the document was to serve as her
last will and testament in the presence of the attesting witness.”
Held: Before admitting a will to probate, Surrogate’s Court must be satisfied that
the will was duly executed, even if no interested party files any objections to the
validity of the will. The proponent of the will has the burden of proving due
execution by a preponderance of the evidence. Among the requirements for due
execution is that the testator publish to the attesting witnesses that the document
was his or her will. Pirozzi
Commentary
1408 puts the duty on the court to inquire, even when no one else complains.
Sometimes the court will say, ok, all I have are interested witness. If I call them to
testify then they lose their interest, but I have to call them.
(c)
if X (but none of the other beneficiaries) is one of two witnesses?
ANSWER: Under § 3-3.2(a)(1) X’s interest would be void. BUT NOTE: § 3-3.2(a)(3).
“Any attesting witness whose disposition is void (that’s X) hereunder, who would be a
distributee (in intestacy) if the will were not established, is entitled to receive so much of
his intestate share as doesn’t not exceed the value of the disposition made to him in the
will” (In other words, X gets the lesser of the two).
ASK: What would X’s share be in intestacy? You have three kids. The estate is worth
$36k, therefore X is entitled to $12k. Done? NO! Now ask what was the share given
under the will! $10k. Which is less? The $10k, so that’s what X gets.
(d)
if Y (but none of the other beneficiaries) is one of two witnesses?
Y would get $15 under the will, his intestate share is $12. What does Y get, the lesser of
the two, Y get’s $12. The other three is void and passes into the residuary.
Commentary
In light of (c) and (d), what’s the purpose of § 3-3.2(a)(3)?
If X and Y are going to lie, it’s going to be so that the Will is declared valid. The solution
it to take away their incentive to lie. See, at this point, they’re on the stand! The court has
called then and they have no choice to testify. It’s only by legislative grace that we’re
allowing these interested witnesses to receive anything anyway. What that will be, it
whatever is less: intestate share, or interest under the will.
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Up to the $10k that X is given, he doesn’t care what’s going to happen. Y, on the other
hand, does have an incentive to have the will probated because he’s going to get more
under the will ($15k) than he would under intestacy!
HYPO: Given what we’ve just done, and given what we know about problems (a) and
(b). Suppose that there were three witnesses:
A, who’s getting $1k under the will
X, who’s getting $10k under the will, and
E, who’s getting nothing under the will.
Q: Is X a person within § 3-3.2(a)(1)?
ISSUE/AMBIGUITY: Is X is a witness to the will who receives no beneficial disposition?
IMPACT/SIGNIFICANCE: If X is a witness who receives no beneficial disposition, then A has
a shot at getting A’s money. If X is a witness who does receive a beneficial disposition, then A
loses A’s share.
Literally, the answer is no, because X is getting something. BUT NOTE: Pascale
Case: in the Matter of the Estate of Pascale
Where the witness who is receiving an interest under a will would receive the same amount if the
will was thrown out, then that witness is not a witness who receives a beneficial disposition.
Therefore A, might not get his money, but he’s got a shot. If we don’t have to call A, then A will
get his money. If, however, we do have to call A, then A loses his money anyway.
HYPO: Suppose that the witnesses are A, B, and E. E is disinterested. We saw earlier that both
A & B are going to lose because they don’t have two uninterested parties. They only have E. B
goes to A and says, hey, why should we both lose? You renounce your share (you’re only getting
one), and then I get to keep my $5k. NOTE: B cannot say, if you renounce I’ll give you money.
That would result in A receiving consideration. This is the Parsons case with out statute.
The focus of the courts decision in Parsons when they said “The renunciation does not cure the
problem.” What they’re focusing on is what’s happening at the moment they’re acting as a
witness, not on what they’re interest is in the will that’s being probated. It reinforces the whole
notion of what a witness is and what a witness is supposed to be doing.
Obviously a witness is going to be called at probate if it’s necessary. But they could all be dead
and the Will could still be probated. What’s crucial is the situation at the time of execution, at the
time the Will is executed.
(e)
if Z (but none of the other beneficiaries) is one of two witnesses?
If you just look at e on its own, it’s an easy one. It’d be the same as (c). Z gets $5k which
is less than his intestate share, so Z would keep $5k.
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HYPO: Testator says, “I want my son to be a witness.” You ask “Will your son receive
anything under the will?” Testator says, “Yes, of course.” What are you going to do?
ANSWER: You can have a third witness, but you still might lose. Your choice boils
down to this: either give him the money or don’t give it. If you give him more than his
intestate share, then he might be in trouble.
The answer to (e) is really the same as (c).
(f)
Suppose Z (but none of the other beneficiaries) was one of two witnesses and
the will provided:
“I leave 2,000 to A.
I leave $4,000 to X.
I leave $4,000 to Y.
I leave the rest to Z.”
ANSWER: According to the facts, Z is getting $26k under the will. This is more than he
would otherwise get in intestacy. Therefore all he gets to keep in $12. Q, what happens to
the other $14? It can’t drop into the residuary because it is the residuary.
RULE/TEST: If the preresiduary gift is void it drops into the residuary. If the residuary
gift is void AND there is only one residuary legatee, then it passes through intestacy. If
there’s more than one residuary legatee, then it would be distributed to the other
residuary legatees.
3-3.2(a)(3)(A) and (B). 3-3.2(a)(3) says that the person who is the distributee gets to keep
the lesser of the two. (A) says, and you know what? If in a situation like Y a voided
disposition becomes part of the residuary, then Y gets his 12k back from the residuary
legatee.
So, it’s this kind of mechanical stuff. With respect to Y, the $15k is void, drops to the
residuary, but since he’s entitled to the lesser of the two ($12k) so he takes it back out of
the residuary, Y keeps $12k and the residuary therefore only gets an additional $3k.
But in situation it’s Z, not Y. That’s where (B) comes in. Z’s residuary is void, the entire
26, but under 3-3.2(a)(3), Z gets to keep $12k. What happens to the other 14? It passes
through intestacy. 3-3.2(a)(3)(B) comes back and says, if it passes in intestacy then the
person who gets what he gets to keep the 12 ratably from the people who get the intestate
share, and the people who get the intestate share, it’s distributeed under 4-1.1 as though
the attesting witness was not a distributee. So the question is, who gets the $14k? we
know that Y will get $12.
Who could it go to through intestacy? Only three people other than Z. If the statute said it
goes as through Z predeceased, you’d say that’s easy it goes to z1 and z2. If the statute
said it goes as though Z survived but didn’t get anything then it couldn’t go to z1 and z2.
Therefore it goes back to Y.
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Joyce doesn’t care what happens in this problem. Joyce doesn’t even know the answer to
this. Be careful about statutes like § 3-3.2. These types of statues are very seductive
because they’re very mechanical. Always keep in the back of you mind the ultimate
purpose of these statutes.
Remember, the ultimate purpose was to take away the incentive to lie. One solution is for
everyone to get together and say, this statute is ambiguous. Why should we all waste our
time and money? Why don’t we just settle, maybe split it between us all.
J. Presence
a. In general
The statute talks about presence in several different ways. Testators signing or
acknowledging in the presence of witnesses. Witnesses signing in the presence of the
testator. Witnesses signing and attesting in the presence of other witnesses.
b. Practical Considerations
Take care of it in one fell swoop, keep everyone in the same room. In Demaris, the
Doctor when behind the chair and you had litigation. How would that case come out in
NY? § 3-2.1(a)(2) says that the testator has to sign in the presence of witnesses. The
requirement that the Witness sign in the Testators presence is not in our statute.
c. Testator can sign in front of one witness, acknowledge in front of another.
EPTL § 3-2.2(a)(2) says that the testator can acknowledge his signature to each witness
separately. So, he could sign in the presence of the first witness, and then bring to another
witness in another room, acknowledge that it was his signature, witness signs, everything
is ok.
§ 3-2.2(a)(4) there shall be at least 2 witnesses who, within a 30 day period, attesting that
the testator’s signature is on the will.
BOTTOM LINE: The testator can sign in front of one, acknowledge in front of the other.
Two different places, two different times. In fact, if the testator goes to a witness and
acknowledges his signature, but the witness forgets to sign. The testator can then mail the
will out to the witness, wherever he is, the witness can sign and mail back. Why?
Because it’s the acknowledgement that must take place in the witnesses presence.
k. Declaration
i. In General
Our statue requires declaration: the testator must orally declare that the document he or
she is signing is a will. This is so that the witnesses know that they’re signing a will.
They don’t have to read the will, and the testator doesn’t have to tell them what’s in the
will. But the testator does have to say to the witness that the document is his will, before
he signed it.
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NOTE: § 3-2.1(a)(3): the way this statute is written, the testator has to say that the
document is his will after he signs the will. In other words, he has to sign it before
declaring that it’s his will.
l. Attestation Clause
i) In General
It’s not necessary to the validity of the will that there be an attestation clause. One of the
benefits of having one and having the witness’ read it aloud is so the witnesses can
remember what happened that day.
m. Notary Requirement
There’s no notary required when executing a will. However, you should have ready
access to a notary because you want to execute a 1406 Affidavit at the same time you
execute the will—that does need to be notarized. (Form P-3, EPTL page 1417). This can
be executed before or after the death of the testator. In NY, this affidavit is a witness
affidavit, not a testator affidavit. This is our version of a self-proving affidavit.
Ours says, as do most, that the real function of this affidavit is to allow the will to be
probated without the witnesses ever showing up in court. A Court can still reject the
affidavit and require that the Witnesses come in and testify themselves.
HYPO: What if the witnesses asked to read the will?
ANSWER: Ask your client. If your client doesn’t have a problem with it, there you go.
But if you’re client doesn’t want to, they don’t have to. If the still witness doesn’t want to
sign, then get a different witness.
HYPO: What if one of the witnesses were made an interested party under the will, but
didn’t read the will and therefore did not know that she was getting anything? Maybe the
will said, “I give my witness Beth $10k, just for being a witness.”
ANSWER: Beth’s disposition is void and passes into the residuary clause, unless Beth
was related to the testator in which case she’d get the lesser of her intestate share or the
money.
HYPO: But what if she’s not related to the testator and therefore cannot inherit through
intestacy. Beth’s interest is taken away? Can Beth go after Stephanie?
ANSWER: You need privity of contract. Since the witness (here, also the contract
beneficiary) was not a part to the contract, then she can’t go after the attorney. Pascale.
NOTE: The contract is not the will! The Will is a gratuitous transfer! Cf. What
about if the attorney messed up the federal income tax return and the estate is now
liable for back taxes and penalties? In that situation the estate can sue the attorney
and the attorney is liable to the estate. The estate is really the successor to the
testator. The attorney, by entering into a contract with the testator also entered
into a contract with the estate.
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COMPARE: Some states do permit people not in privity to sue the attorney. Some of this
is due to statutes, some is due to court decisions, and a lot of it is based on a theory of
third-party beneficiary.
2.
Trust Formalities vs. Will Formalities
a. See Chart
b. In NY you cannot establish an oral trust.
Commentary
What we have in the chart is the dual choice that a person has in deciding how they want
to leave their property. They can do it by a will or by a living trust. (A living trust is
really just an inter vivos revocable trust). In our example, H has this choice: he can
basically do nothing with his assets, or he can put things into trust.
ONE EXAMPLE: With a will, H can leave “Everything to his wife. However if my wife
disclaims, the property will fall into the trust.”
RESULT: Once in trust, the wife can live off the income for life and the remainder will
go to children or grandchildren by representation.
NOTE: One of the things you have to be careful about is that W is willing to
disclaim. This might be a million dollars. As long as she does follow the plan and
disclaim, then you save on the taxes.
This all part of a larger estate plan. Maybe you have pension benefits and life insurance
and all that stuff. The duality of choice that the decedent has is to either put everything
into a will or to take the second approach. The second approach is to, during lifetime,
setup a revocable inter vivos trust. You can put money into it or you can put no money
into it.
EXAMPLE TWO: When Professor Joyce’s mother in law died, Professor’s wife
inherited a lot of stocks. Profess. was nervous because it was going to take time to
probate this will, and he didn’t want his wife to be blamed if the stock came down. Prof.
says that this was a good situation in which to use a revocable trust. Why? Well, the
function of the revocable trust is that if the stock was to go into the trust, then as soon as
the decedent dies, then the trustee can sell that stock and diversify. They don’t need to go
to court and get approval.


Common reasons why you’d want to put property in trust: Property is in another
state (so you can avoid double probate, aka ancillary probate), and also if you
have sensitive assets and you want to be able to take immediate action with
respect to those assets.
Trust might say: I am going to be the only trustee. You can be the sole trustee
during your lifetime. And what it will say is that, during my lifetime, I get
whatever I want: income, principle, I can even revoke the entire thing. But the
function is to say that on my death . . . and then whatever I want to happen. I use it
as a testamentary substitute—that’s what it is.
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


End Result May be the Same: My plan might be the exact same plan that I would
have had under will. In fact, the trust becomes a disclaimer trust instead of a
disclaimer will. AND IN ADDITION, I execute a will that says nothing other
than, “all my property which is not governed by the trust, goes into the trust.” So,
this entire scheme is a combination of a living trust and a pour-over will, but the
workhorse is the lifetime trust.
Cost: In terms of the cost it’s really pay me know or pay me later. If you
WARNING: (Savings Claims): One of the things you have to be careful of is
people who say save on this, that, the other things and taxes. Well, taxes, you
don’t really save on taxes because both the fed and the state treats the two scheme
basically the same from an estate tax point of view. Joyce things it’s really all just
a matter of choice and that the two driving considerations are out of state property
and sensitive securities/investments that you want to secure/diversify.
c. How chart functions
So, what do you have to do if you decide to go one way or the other? The left hand side,
the Will side, we’ve done all the formalities. The testamentary trust that the prof. speaks
of, one example is the disclaimer trust, but sometimes you will have a trust directly set
up. For example, if you don’t trust your wife and you don’t want to give her all the
property outright because she’s not a good manager of money, maybe she’s in a situation
where she’s got medical problems or something, so you set up a trust in your will, you do
it in a way that qualifies for the marital deduction. This way, it’s not a function of her
disclaimer, if you do that, then the requirements are the same for making a will because
that’s where the trust is coming from, the will.
3rd column on the right refers to the situation where you don’t want to be the sole trustee,
but you do want to set up a revocable lifetime trust so that you can use this second
approach. So what happens is that you pick a third part to act as trustee. NOTE: The
formalities for this are mostly the same as for when you are the trustee yourself, until you
come down to the funding.
d. How to set up a lifetime trust
You can set up a lifetime trust in one of two ways. (1) is to declare yourself the trustee
(which is the more popular approach). I am the trustee, I can do whatever I want, and I
can even revoke the whole thing. If this is the approach, then all the formalities in the
second column have to be complied with. Biggest formality is that the trust has to be in
writing. You can have constructive trusts and resulting trusts, but those are really trusts
set up by law.
e. Trusts are asset specific
With a will you can say I leave all my property to whomever you wish, we know what
property the Will will govern, and that is probate property. But with a trust, you have to
specifically say what property is in the trust. A trust is a relationship of people to
property.
f. “Recital of Assignment”
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The trust statute requires a “recital of assignment,” but that alone is not enough. You also
need a recording or registration of registerable assets, which requires that you change the
name of everything and put it all in the trust’s name. NOTE: if there’s no registration for
the property (ie, as with a painting as opposed to stock, for example), then a written
assignment is required. Just write on a piece of paper that you assign this piece of
property to the trust.
g. How Funded?
Funding for the trust where you are not the trustee, you are transferring things to a third
party, so you have to make a transfer. You need delivery if it’s capable of delivery, and
intention, and maybe constructive delivery like writing it out on paper and delivering the
paper. You can’t just write out a document and say, I hereby transfer all my Exxon stock
and all my paintings etc, to Joe Blow to be the trustee and I retain the power to revoke.
You know what? Property is still in the probate estate. Why? Because you didn’t transfer
anything. Funding is, therefore, extremely important.
h. A few other points
i) In General
Typically, no matter which way you go, whether you do it before or after, the full
service lawyer is going to suggest that you execute a health care proxy and a
durable power of a attorney at the same time you execute the trust or the will.
ii) Durable power of attorney
These will not last past death, but it will last past disability. You can use this with
both a will or a living trust, and the one way that a living trust can be funded by
the person who has that limited power of attorney. The grantor may desire not to
fund the revocable trust with certain assets at the time he establishes the trust. A
durable power can be used to make later additions or changes to the revocable
trust.
i. Irrevocable Trusts
If something is a revocable lifetime trust, then it’s really the same as a will. But people
also establish irrevocable trusts. They do that for a variety of reasons, one is to set up a
so-called life insurance trust. Asset-transfer is irrevocable lifetime trust is just another
way to transfer your assets during lifetime. So you with the Gruen example, you want to
get rid of your painting, you can either give the painting to you son outright, or you can
give a life estate to your son with a remainder to your grandchildren. If you go the latter
route, then you’ll probably set up the irrevocable trust. In either case, if you retain the
power to revoke, it’s not going to be considered a transfer at all (because it isn’t) until
you die.
Part IV
The rest of Wills and the probate process
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§ 3-4.1 Revocation of wills; effect on codicils.
HYPO: Harry asks you how to revoke his will. What do you advise?
A: Tell Harry to come down to the office, we’re get rid of the old one and draft a new one. If
Harry protests, then tell him, look, you want to get rid of it, go ahead and tear it up.
If Harry tears up his Will himself, the Will will be revoked. If that’s the case, do we still want
him to come into the office and revoke it by writing? Yes! Why? Because physical acts are
inherently ambiguous. If he tears it up and then dies, all that’s left is a torn piece of paper. That
doesn’t tell you anything. He may have made a mistake. He may have done it on condition.
PRACTICAL IMPACT: Revoking a Will by physical act causes an enormous amount of
litigation. § 341(a)(2) is the major reason why you tell the testator not to take the will home. (1)
He can lose it, (2) he may want to chang it. BUT NOTE: Legally, Harry can’t change it, if he
does, he may end up dying intestate.
NOTE (Living Trusts): If this was a living trust, then Harry cannot revoke by physical act. § 34.1 only applies to the wills. 7-1.17 and 7-1.18 govern Trusts.
HYPO: Harry comes down to your office with the Will that he ripped up. Now he wants to know
what it is that he’s going to execute.
ANSWER: Make Harry execute a document revoking his ripped up Will with all Will
formalities. This let’s the future Court know what Harry’s intention was. The first clause at the
beginning will read, “I hereby revoke all my prior wills.”
Problem #3.
1. T makes a valid will. Thereafter T writes on a piece of paper, “I hereby declare that all
my prior wills are revoked.” Immediately beneath this statement T signs his name. Is T’s
will revoked?
Answer: NO! The revocation of a Will by subsequent writing is governed by § 3-4.1(a)(1). This
requires that the subsequent written revocation be executed with all the same formalities of a
Will. One of the Will formalities is that it be signed in the presence of two witnesses or
acknowledged by the Testator to the Witnesses. Since Harry didn’t do this in executing the
subsequent writing, the original will isn’t revoked.
2. After T’s death two validly executed wills are discovered. In one of them T devises
Blackacre to his daughter. In the other T devises Blackacre to his son. Who takes
Blackacre?
ANSWER: We want to know the date. A subsequent Will revokes the prior Will were it is
inconsistent with the prior will.
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NOTE: A later inconsistent provision prevails over a former.
HYPO: I leave Blackacre to my daughter. I also leave Blackacre to my Son. ANSWER:
They take as Joint Tenants. ARUGE: For the son, inconsistent provision. If this was all in one
provision it would be as tenants in common.
If you have two separate instruments, the Court is going to say INCONSISTENCY, testator
changed his mind. BUT NOTE: whether or not two wills or two provisions in wills are
inconsistent is a question of interpretation.
NOTE: When you probate a Will, you’re not probating a piece of paper, you’re probating a
scheme.
HYPO: I leave all my property to Joe, second instrument; I leave a thousand dollars with Kevin.
ASK: Is the second instrument completely inconsistent? A: NO! Probate the whole scheme
together. Kevin gets $1k, joe gets everything else, the second writing is a codicil.
3. T’s estate consists of Blackacre, worth $15,000, case of $50,000 and stock worth $50,000.
In Year 1 T made a valid will devising Blackacre to his son. In Year 2 T made another
valid will in which he stated, “This is my last will and testament. I am very displeased with
my son and I think he deserves nothing from my estate. I therefore leave all my money to
my daughter.”
(a)
Who takes Blackacre?
ANSWER: Is there an inconsistency? (total, partial, or not inconsistent at all?)
ARGUMENTS: “This is my last will and testament.” Total surplusage, just means most recent.
A testator can be completely negative with respect to giving away property. ARGUMENT: For
son, the second provision isn’t really totally inconsistent or partially inconsistent. For daughter,
come on, common sense says that the Father wanted to cut son off.
NOTE: If instead of saying, “I leave all my money” it read, “I leave all my estate” then
the daughter would take all. Why? Because a judge who read that would have gone to
law school. Laypeople don’t use the term “estate,” they use the term “money.”
Commentary
Lots of cases say determine the testators intention by the four corners. But in reality, can
bring in all sorts of evidence to shed light on what the testator’s intent was.
Revocation by Physical Acts
1. T validly executes a will which reads: “I give $1,000 to X. The residue of my estate I give
to Y.” The will contains an attestation clause which is located beneath T’s signature and
which is subscribed by the attesting witnesses. Thereafter T, intending to revoke the will,
writes the word “Revoked” across the attestation clause.
(a) Is the will revoked?
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ANSWER: His writing “revoked” across the attestation clause is a physical act which is
sufficient to revoke the Will as long as the written physical act touches the ink on paper.
BUT NOTE: You can revoke by tearing a corner with no writing.
2. T made a valid Will. After T’s death it cannot be found. T’s lawyer has an unexecuted
photocopy of the will. Can this photocopy be probated?
ANSWER: NO!
RULE: If (a Will was last in the Testator’s possession) and (no one can find the will) then (the
presumption is that Testator revoked the Will).
Bakhaus p. 163 of caseboook
SCPA 1407: This lays out what happens if the will is lost.
3. T validly executes both the “original” will and a photocopy. T takes both copies home.
After T’s death the original is found in little pieces in a drawer of his desk. The photocopy
is found still intact.
(a) Can the photocopy be probated?
ANSWER: You still have to overcome the presumption that the original Will was
revoked. NOTE: The photocopy might be useful for what was in the original.
4. T validly executes a will. T takes an unexecuted photocopy home with him. After T’s
death the unexecuted photocopy cannot be found.
(a) Can the executed original be probated
ANSWER: You can probate the executed original because you have intention to revoke,
but not the act. You need both to actually revoke.
(b) Would your answer be the same if T had torn or mutilated the photocopy with the
intent to revoke this will?
ANSWER: The photocopy is unexecuted, so revoking it by a physical act is meaningless.
HYPO: If there were two executed wills, you only take one home, and then you can’t
find the one you took home.
ANSWER: When losing one, the presumption kicks in that the will has been revoked. If
you revoke one will, then all its copies have been revoked.
5. In view of your analysis of the above situations
(a) Should you prepare a duplicate copy of your client’s will?
ANSWER: Yes! Just so we know what was in the original. *NOTE SCPA 1407 covers
all of this.
(b) Should the duplicate, as well as the “original” be executed?
ANSWER: No! This will only lead to problems.
(c) Who should retain what copy?
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ANSWER: Ideally, you don’t want the Testator to keep it. He’ll be tempted to change it,
or it might get lost or accidentally destroy. Tell the Testator about SCPA § 2507 this
statute says that at the Surrogate Court they have a vault where they keep Wills. You
have to make sure though, that when you execute a new will that you take out the old
one.
5. Revocation by Operation of Law
EPTL § 5-1.3: Revocatory effect of divorce, annulment or declaration of nullity, or dissolution of
marriage on disposition, appointment or other provision in will to former spouse. This statute
says that principle revocation by operation of law doesn’t apply in this state (generally, unless
there’s another statute in the pamphlet).
1. In Year 1 H executed a will which provided: “I devise Blackacre to my wife. The rest of
my estate I leave to my brother, Ben.” At the time he executed this will, H was married to
Joan, and owned in addition to Blackacre about $5,000 worth of securities. In Year 6 H
successfully sued Joan for divorce (the grounds being adultery with brother Bed), and then
married Barbara who remained his wife until his death in Year 13. About a year before he
died, H sued Ben for alienation of affections and recovered $75,000.
H’s net estate at this death consisted of Blackacre (worth $100,000), $5,000 in securities,
and $75,000 in cash. H never had any children, natural or adopted.
(a) Who is entitled to what portion of H’s estate in New York?
ANSWER: Pick a person and work through it with them first. Start with Joan, the answer is No.
Is Joan included in the disposition of the will? At time of death she was not the wife. What does
the will mean, the will operates only at death, but the will isn’t construed at time of death, it’s
construed at time of execution. At time of execution Joan was wife. However, because of
revocation by operation of law, 5-1.4 which deals with revocatory effects of divorce. Unless
otherwise mentioned, a divorce takes you out of the will.
HYPO: What if Testator had joint bank account, totten trust, and securities, life insurance, et
cetera. (Testamentary Substitutes).
ANSWER: Joan takes if these are still in her name! Barbara was wife at time of death, but was
not the wife at the time the Will was executed. Barbara is going to want to (this is all because the
will says I devise Blackacre to my wife). The brother is going to contest because in the will he
says I devise Blackacre to my wife.
2. In Year 1, T executed a will which provided, “I devise Blackacre to my son, Robert; the
residue of my estate I leave to my wife, Hill.”
In year 2, T sold Blackacre to X for $25,000 and gave $20,000 of proceeds to his son,
Robert. In Year 3, T repurchased Blackacre from X and died, still owning Blackacre, in
Year 4.
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Who is entitled to Blackacre?
ANSWER: EPTL § 3-4.3 says look to § 2-1.5 (Advancements and their Adjustment) Because T
sold Blackacre and gave part of the proceeds to his son, it doesn’t count as an advancement.
First issue: what is the effect of T selling Blackacre in Year 2?
 It would be an ademption by extinction  ask the question if the property is owned by
the decedent at his death?
 Here, T owned Blackacre at death. So it is NOT adeemed by extinction b/c he owned
blackacre at death
 Suppose T did NOT buy it back. It would be adeemed by extinction. If I give you
Blackacre and sell it, then do I want you to get the proceeds? This is the issue the
legislature dealt with. Since it was a pain in the neck to answer this question, the only
question they decided to ask is if the property is there or not. If it is, T gets the proceeds.
If not, T doesn’t get the proceeds.
Second issue: what about 3-4.3? This is about ademption by extinction.
 If after you give someone something in the will and do something inconsistent to alter it,
what you have done does not revoke the provision in the will.
 But if you do something WHOLLY inconsistent, it will revoke!
 If T sells or gives the property away, then this is inconsistent! Is it wholly inconsistent to
sell property that you devise in your will? YES! 3-4.3 says the provision in the will is
REVOKED.
 The statute does not say anything about buying back the property.
 Joyce: 3-4.3 seems to go beyond the ademption and say the provision is revoked if it is
inconsistent.
 But T bought Blackacre back! How does this affect the will? If T sells Blackacre,
despite buying it back, isn’t this wholly inconsistent with the provision?
Third issue: what about ademption by satisfaction?
 Ademption by satisfaction  parents give children Blackacre through an advancement. §
2-1.5 applies to advancements in intestacy and ademptions by satisfaction in testate
situations.
 If someone owns Blackacre and gives it to his son in his will, but before he dies, he sells
Blackacre and gives the proceeds to the son, then the argument is that the son was given
an advancement on what he would have gotten by will (ademption by satisfaction).
 § 2-1.5  you MUST do a writing! There is no writing in this hypo, so ademption by
satisfaction does not work here (it is irrelevant).
 We are left with ademption by extinction and revocation.
Fourth issue: determine what is wholly inconsistent and what is just altered.
 3-4.2  if all you have is a contract and it is not wholly inconsistent, then the person who
benefits under the contract get the proceeds. (Joyce says we don’t need to know this
statute). If all you do is contract to sell, then this statute takes over.
 3-4.5  suppose you give to Robert in your will, and then you become incapable of
handling your affairs, and then an Article 81 guardian sells Blackacre. Then what? Then
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

this is NOT wholly inconsistent, b/c you didn’t make the decision, the guardian did. This
is pursuant to 3-4.5.
3-4.5  if you don’t get proceeds til after you die, then the proceeds go to the person
under the will. If you get the proceeds BEFORE you die, then the person in the will
won’t get the proceeds b/c you had time to decide where the money would go.
Joyce will NOT ask about anything except 3-4.3!
Review the first problem above, about H, Ben, Joan and Barbara, in light of Maruccia.
 Maruccia  Decedent (T) was married first to Laura. They had kids, A and B. Then he
divorces Laura and marries Evelyn. They had kids, C and D. T executes a will and the
basic provisions are: “if Laura has a right of election, she gets the minimum. Otherwise,
all of his estate goes to Evelyn and the four kids.” After the will is made, T and his
second wife split. They enter into a separation agreement. The agreement contains a
mutual waiver, which says that they waive certain marital rights, such as dower, etc. “OR
OTHERWISE…” This “or otherwise” is important!
 Remember – waiver should ring a bell for disclosure!
 Why did the lawyer who drafted this will put the provision in about Laura and her right
of election? If she has a right of election, she gets a third, according to the will. Why
would the lawyer draft the will like this, b/c Laura is no longer the wife! Why say
anything about her at all? The lawyer was either dumb or super cautious. If Laura is
divorced and has no rights under 5-1.1, then why include her? Just in case the divorce is
held to be invalid! The lawyer was very cautious here. Just in case the divorce is found
to be invalid, T wanted to be sure Laura couldn’t get more than her intestate minimum.
 The kids say that Evelyn doesn’t get anything b/c this provision in the will is revoked
under 3-4.3.
o 3-4.3  the waiver is wholly inconsistent!
o Is the waiver wholly inconsistent under 3-4.3? NO – the Judge held that the
waiver was too vague; that under the waiver, Evelyn was giving up rights in
connection with the marriage. The words “or otherwise” are too vague; the court
says this is NOT specific enough. The court says that you have to be more
specific to waive these rights! What would have satisfied the court?
o See page 207 of Supplement  the spouse will have to specifically renounce any
testamentary disposition in her favor made after the separation agreement or
employ language which clearly and unequivocally manifests an intent on the part
of the spouses that they are no longer beneficiaries under each other’s wills.
o Maruccia supports the notion that 5-3.1 is so important, that the spouse MUST
say that she waives her rights under 5-3.1! Or she must say that she waives her
rights to “exempt property.”
o The lesson of Maruccia is NOT that you should be very careful when drafting
waivers (although this is a lesson, it is not THE lesson).
o The lesson of Maruccia  forecast by Judge Jasen in the last paragraph – the
holding shall have LIMITED APPLICATION (see page 208), b/c even though
you think you are a divorce lawyer, you really should be a full service lawyer.
And when the Court of Appeals cites the professor who talks about sound
49
practice, it says that whenever parties are legally separated or divorced, the
client’s will should be amended!
o In addition to doing the waiver, or maybe instead of doing the waiver, the attorney
should change the will! This is the most important lesson to come out of this
case.
o Joyce: the attorney should tell his client to bring his will, his insurance policies,
his pension plan, his IRAs, etc. All of his non-probate stuff! Anything Totten
Trust related, any bank accounts, etc. The testator and the attorney need to decide
what will happen now that there has been a divorce!
In light of Maruccia and § 3-4.3, what would the answers be to the
Barbara/Joan situation?
 Barbara  wants to say she is the wife b/c she is the wife at death.
But this doesn’t work. 5-3.1 is a dated section. And 3-4.1 means that
she can’t take either. Now she wants the will thrown out under 34.3(if there is something wholy inconsistent with former disposition, it
revokes it; only applies to wills)! Barbara says that there is a wholly
inconsistency! She says that it is wholly inconsistent, b/c H sued his
brother Ben! That act, of suing the brother, is wholly inconsistent with
the will. The response would be that this situation is not the type of
situation to which 3-4.3 speaks. However, it includes any “other act”
which is wholly inconsistent! But the response back to that is that you
have to read the statute more carefully. What kind of an act does 3-4.3
speak to? This is the question! “A conveyance, settlement, or other
act of a testator, by which property previously disposed of is
altered…” Barbara is still out, in light of Maruccia! Her only resort is
5-1.1-A and 5-3.1.
 Ben  Ben shouldn’t get the $75,000 back from the residuary. This
would be wholly inconsistent. This is just one argument.
HYPO: Let’s say there was an actual divorce in Maruccia. What about Camille and Maryanne?
Suppose I’m married to X, X has child by former husband. I say in my will, I leave all my
property to X, but if X predeceases me I leave to her child. I don’t adopt the child, but I provide
for her in my will. Then there’s a divorce. RULE: UPC says in this situation X does not take.
UPC says that the divorce acts as a revocable disposition to a foreign spouse or to a relative of
the divorced spouse.
The UPC takes the default notion of 514 one step further. I wouldn’t not only want her to
take, I wouldn’t want any relative of hers to take either. BOTTOM LINE: In NY you say
that the kid can still take. We didn’t go as far as the UPC here.
take an the provision takes effect as though she predeceased.
6. Partial Revocation
1. T makes a valid will which reads: “I leave my estate equally to X and Y.” Thereafter, T
scratches out “X” and inserts “Z.”
(a) Does Z take anything under the will?
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ANSWER: Our rule is that a will can only be altered or revoked with Will formalities. Since T
didn’t have his act Witnesses and didn’t have the Witnesses sign, then Z get’s nothing.
(b) Does x take anything under the will?
ANSWER: X takes! 3-4.1(a)(2) says that a partial revocation by physical act is not allowed in
NY.
BUT NOTE: Under the UPC X cannot take!! See. 3-507 c.b. 163
RATIONALE: 3-4.1(a)(1) contains the word “part.” 3-4.1(a)(2), revocation by physical act does
not contain the word “part.” Therefore if you’re going to revoke by a physical act then you’re
going to revoke the whole thing or nothing.
HYPO: What if he struck out X and proclaimed to everyone that he wanted to revoke his
entire will by striking out X.
ANSWER: If you strike out X and proclaim to everyone that it’s your intention that you revoke
then the whole will is revoked. In light of this do you still maintain that X will take in this case?
ARGUE that striking out X is inconsistent with the prior provision that X and Z take equal
shares. Y is going to want this so he can take everything under the will. Intestate distributee’s
will argue that you don’t have to strike out everything under the will, only a part as long as you
intent to revoke the whole thing. Y will say, yes, absolutely, but he inserted Z, which means his
intent was only to screw X, which he cannot do.
NOTE: Gather the intention from wherever you can.
HYPO: What if T scratched out X’s name so that you could no longer read it. Now the
will reads I leave me estate equally to blank and Y. What do you do? FUZZY: Maybe X
can take, maybe not.
(c) Does Y take anything under the will?
ANSWER: Yes! Y is not revoked entirely. Because T only tried to insert Z and only tried to
cross out X, then his intention was not to do anything against T.
2. In Year 1 T makes a will which reads: “I give $5,000 to X, $5,000 to Y, $5,00 to Z. The
residue of my estate I give to A.” Thereafter, T executes, with the requisite testamentary
formalities, a document which states, “I hereby declare that my gift of $5,000 ot X, in my
will made in 1960, is revoked.”
(a) Does X take $5,000?
ANSWER: No, a part of the will can be revoked by a subsequent instrument under § 34.1(a)(1) if executed with the requisite formalities.
(b) Is A’s residuary gift increased by $5,000?
ANSWER: The $5k goes into the residuary.
Y is the testator’s son, Z is the testator’s daughter, and X is the daughter’s former husband.
Decedent didn’t trust women with money so he gave half his estate to his son and half to his son-
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in-law. Then the decedent said, I still don’t trust women to handle money, but I’m not going to
give half my estate to a guy who’s no longer my son-in-law.
The notion is that, if you look at this from an intention point of view then it’s pretty clear what
his specific intention is. He wants to cut his son-in-law out and put his daughter in. But he can’t
do that. It’s against the law. If this is what he specifically wanted to do, have to say, sorry! Yeah,
things change, but you have to change them the right way.
You could make a more extended effort with respect to intention. Argue that the entire will
should be revoked and that the Daughter should get the intestate share. It’s a little like the
covenant on the garage back in the day. The court basically said that if we knew that we weren’t
going to let you tear your house down then you wouldn’t have put this provision in.
One of the things that all this stuff tells you is that when you give the will to the testator, tell
them what can happen. If you take this home and lose it, there’s a good chance that you will die
intestate. You can’t just cross out names and add other people or provisions. You can rip up the
Will, but there’s going to be an argument afterwards as to what that destruction really meant. 34.1(a)(2)
2A. is an easy question. Answer is no! What’s being tested here is the fact that you can revoke in
whole or in part. Next Q: what happens to X’s $5k then? It goes into the residuary. And the
second instrument is called a codicil: a later instrument which alters the former will but does not
whole revoke it and is not inconsistent.
3. In Year 1, T executed an instrument which read: “I leave $5,000 to X.” In Year 2, T
executed another instrument which read: “I leave $1,000 to Y. The residue of my estate I
leave to Z.” Shortly thereafter T writes the word “Revoked” over the disposition to X in the
Year 1 instrument.
(a) Does X take $,5000?
(b) Would your answer be different if the Year 2 instrument left $1,000 to X instead
of Y (residue still to Z)?
ANSWER: This situation leads to a paradox.
FIRST, look for revocation by subsequent instrument issues. Is there an inconsistency?
Argue it both ways. You can argue here on behalf of Z that what the testator meant was
$1k to Y and the rest to Z. EVIDENCE: The fact that the Testator wrote revoked on the
first will suggests that the second instrument should read $1k to Y and the rest to Z. This
is because the Testator tried to prevent any inconsistent readings.
NEXT: What effect does revoking that first instrument really have? ASK: what is your
intention? If you write the word revoked over part of an instrument, that’s a cancellation.
If you have a sufficient intention to revoke the entire will, then the entire will is revoked.
REMEMBER: You cannot revoke partially by physical act in New York.
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NEXT:
HYPO: I leave a thousand to X a thousand to Y, then I write over the X clause, “revoked.” If he
intended to revoke the entire will, then he can do it, if he intended to revoke only part of it, he
can’t do it. Then look at our hypo and realize that when we decided to read these two instruments
consistently, then we’ve got the hypo situation. In NY it’s a loser argument.
HYPO: I leave all my property to X. But then I execute a codicil and leave a small part to Y.
Then I have a problem with X and I cross out X. You’d say you can’t do that! This is all part of
one scheme, and you can revoke by a physical act partially. But you’d be wrong!! The difference
between the two situations is that they are two different documents.
Given that, in our hypothetical, it means that if someone comes along and says when you wrote
revoked over that first instrument and only intended to get rid of X, what you wound up with a
nullity. Z’s going to say, no, two instruments. You can allow partial revocation by a physical act
if there are two instruments. If you’re revoking partially by physical act by way of revoking the
entire instrument which is more than one instrument which makes up the entire scheme then you
can do it. But if you’re trying to revoke within an instrument by a physical act, then they won’t
let it happen.
That’s the response of Z who says, oh no, that first instrument is revoked. You can do that in
NY. BUT NOTE! If that happens, then look at what else happens!
Since the second instrument is the codicil to the first instrument, then when you when you
revoke the first instrument you automatically revoke the second instrument. That’s in 341(c).
The revocation of a will revokes all codicils thereto. 341c is one of the few provisions in the
EPTL that operate despite the intentions of the testator. All the codicils are revoked no matter
what the testator intended.
HYPO: I leave all to X. First codicil, I leave $1k to Y, second codicil, $2k to Z. Then he revokes
over the first instrument, the will. The cases before 341c were all over the place as to what effect
revocation of the first one (the will) has on the subsequent codicils. So the legislature stepped in
and said if you revoke a will to which you have made subsequent codicils, then they’re all
revoked and you’re going to start all over again or die intestate.
So now, you get the horrendous result that if the testator only wants to revoke the $5k to X, and
is aided in that by Z, he dies intestate. Joyce thinks that the court will find some way to avoid this
outcome.
Potential argument: we apply the presumption against intestacy. Therefore we’re going to
read the second one inconsistent.
Republication by Codicil
a. In General
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You can have a separate signed writing that identifies who gets particular items but
allows the testator to change the writing after the will has been executed. The default rule
in NY is that the doctrine of incorporation by reference does not apply.
EXAMPLE: I leave items of jewelry that I own in accordance with a memorandum that
will be found in the top drawer of my desk after I die. And after the person dies there is a
memorandum naming 10 people who get what item of jewelry. Assume that it’s clear that
memorandum was there before the will was executed and it’s never been changed. THE
PEOPLE CANNOT TAKE!! The jewelry is part of the residuary clause.
BUT NOTE: Most jurisdictions allow if you have a writing be incorporated by reference if:





The writing is in existence at the time the will is executed.
The will describes the writing as in existence at the time the will is executed
The will describes the writing with sufficient detail to identify it
The writing fits the description
The will shows an intent to incorporate the writing into the will.
b. Incorporation by Reference
i) In General, this is not recognized in New York. There are two exceptions however: (a)
acts of independent significance and (b) republication by codicil.
HYPO: I leave you the automobile at my death. Then I change cars. I own a Mercedes
when I execute the will, but I own a piece of junk at my death. You can do this. The
contents of my safe deposit box at the Last national bank.” You can do this. The contents
of my safe deposit box at the last national bank, to the individuals indicated on the
envelopes contained therein.” You can do this. You can say “I leave $10k each to
everyone in my employ.” The court will say that these situations are things that have
independent significance.
ii) Acts of Independent Significance Defined
Under the doctrine of independent significance, a will may dispose of property by
reference to facts outside of the will (the referenced fact can control either who takes or
how much a beneficiary takes) as long as the referenced fact has significance independent
of its effects upon the testator’s probate estate
BOTTOM LINE: It means that, in New York, if I leave my jewelry in accordance with
my memorandum, it’s clear that you did that only to dispose of your property. That’s
what probate is for. BUT! If you republish your will by codicil, then we will allow you to
incorporate by reference. So the republication by codicil is a subset of incorporation by
reference.
Problem 7
In year 1, T executed a will which provided, “I devise to A the real property which I now
own in Buffalo. The residue of my estate I give to B. I nominate C as my executor.” In Year
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1, the only real estate owned by T was her own house lot, Whiteacre. In Year 2 T bought
Blackacre, another piece of land in Buffalo. In Year 3, T gave her house lot to her son, S. In
Year 4 C died and T executed a “codicil to my last will” by which she nominated D as her
executor. T died in Year 5. Does A take Blackacre.
ANSWER: By virtue of saying this is a codicil to my last will, she will be deemed to have
incorporated by reference her prior will. “A” will then argue that this incorporation by reference
requires us to look at what she had at the time she executed the will. T owned Blackacre, and
therefore I, A, should get Blackacre.
BOTTOM LINE: Basically we have two exceptions to incorporation by reference. On is the
notion of independent significance. The second is republication by codicil.
HYPO: Same facts except that the house that T owned when she made her first will is a small
residence. A is a friend of hers, B is her only child. T gives her house to her Son and buys a
10,000,000 apartment, Blackacre.
ANSWER: If her entire estate is only Blackacre, then A will lose. The court will say that it really
is only a presumption. If you have a later instrument which is a codicil and it refers with some
degree of specificity to the other will, then the court will presume that you intended to rewrite the
provisions of the codicil. BUT it’s not a conclusive presumption. It is still subject to the overall
notion that you’re trying to do testamentary intent.
B. Ramifications of Republication by Codicil
HYPO: Assume that the Will leaves everything to Jack. Few years later, there’s a Codicil
which (a) says that it’s a codicil, and (b) reaffirms the will (either by saying it or
mentioning the will by reference) and the codicil leaves a $1k to Y.
a) What if the first will had only one witness and was therefore invalid?
ANSWER: Probably every other state but NY says that the codicil validates the will. NY
decided a long time ago that you can’t republish an invalid will.
b) Suppose Jack was a witness to the will but not a witness to the codicil.
ANSWER: If Jack is a witness to the will, then his interest is voided unless he’s also an
intestate distributee. Then he gets the lesser of the two. But suppose the codicil is
executed and jack isn’t a witness to that. A: Jack’s ok. Because the notion is that the
codicil rewrites the will.
c) Suppose that Jill is born in year 3, so that Jill would be an after-born child under
532.
ANSWER: She’s born after the execution of the will, but not the execution of the codicil.
Therefore she’d be out under 532.
Revival
1. General Rule—No Revival of Revoked Wills
This is all governed by EPTL § 3-4.6. Revocation or alteration of later will not to revive prior
will or any provisions thereof.
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HYPO: T executes a valid will. T then later revokes by codicil. T then destroys the codicil
by physical act.
ANSWER: English rule vs. Ecclesiastical rule.
Under the English/Common Law rule, the first will operates. Therefore everything would
go to X. The notion is that a will operates at death. Until T dies, the second will is
ambulatory and has no effect. As far as its title passing effect goes it did not do anything
to the first will.
Under the Ecclesiastical rule: as soon as the second will is executed, the first will is
revoked. Under this rule, T dies intestate. The ecclesiastical rule is what we have in New
York.
a. Effect on remainder. After revocation, the will remains altered and does not revert to
its original state. If there were no residuary clause then any grant which was separated
therefore passes through intestacy, according to the New York Court of Appeals.
NOTE: If a second will or codicil fails to be executed with the requisite formalities (i.e.,
two Witnesses et cetera) then it is ineffective.
HYPO: Will #1 gives everything to jack, codicil gives $6k to Y. These are both property
executed. Then the testator rips up the codicil intending to revoke.
ANSWER: 346a says if after executing the will, T executes a later will (will can mean codicil),
which alters the will, then the revocation of the codicil doesn’t revive the former will or any
provision thereof.
The 1K doesn’t go back to jack, but where does it go? Only two place it can go, Jack or by
intestacy. The Court of Appeals held that it goes by intestacy under 346. The notion is that when
you execute the codicil you have permanently reconfigured the residuary clause. Therefore the
residuary clause now says, I leave everything but a thousand dollars to jack. After you rip up the
codicil its interpreted to mean, I still leave everything but 1k to x. Therefore the 1k is disposed of
through intestacy.
HYPO: Blackacre to A, everything else to X. Codicil says $1k to Y, Blackacre to B. Codicil is
destroyed. What result? The only cases available say that Blackacre goes to X and not through
intestacy. As soon as the second instrument is executed the first one should be permanently
reconfigured. Blackacre should pass though intestacy. This is all Joyce’s opinion.
On an exam you should say that NY doesn’t apply partial revocation by a physical act!
HYPO: I leave everything to X. Second, I leave everything to Y.
Answer: Everything to Y.
HYPO: What if you can’t find it the second will?
ANSWER: Then you presume it’s revoked. Who takes the estate? It passes through intestacy.
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HYPO: What if you can’t find the first one?
ANSWER: Who cares?
8. Dependent Relative Revocation
Dependent Relative really just means (conditional).
Joyce says that we’re going to assume that Dependent Relative Revocation does operate in NY
although there is no authority for this.
Even if a will is validly revoked (in whole or in part), the courts will ignore the revocation if (1)
the revocation was based upon a mistake, and (2) the testator would not have revoked if testator
had known the truth. In addition, the courts then to apply the doctrine only if (1) there is a failed
alternative testamentary scheme, or (2) if the mistake is set forth in the writing that revoked the
will and the mistake is beyond the testator’s knowledge.
NOTE: Where the revocation is by writing, the mistake must be set forth in the revoking writing,
and it must be beyond the testator’s knowledge.
Problems
Two first, then one
2) T makes a will. Thereafter, T tears up the will, saying at the time, “I intend that this will
be revoked, but only if and when I make another will.” T never makes another will. Is T’s
will revoked?
ANSWER: Remember that Dependent means conditional. EPTL § 341 says you can revoke a
will only by physical act or subsequent writing. Your intention must be an absolute intention, not
conditional. Therefore the will here has not been revoked.
1) Thinking her son John is dead, T executes a will in which she provides: “I leave my
estate to my daughter, Jane.” In fact, john was not dead and survives T.
(a) Can John take under the will?
ANSWER: This hypo really has nothing to do with revocation. There was no revocation.
This is about mistake in inducement. That’s why T executed this will, because she
thought John was dead. John cannot take, because the will does not provide for it.
(b) Can John successfully contest the probate of the Will?
That’s a different question. He can argue that the will was made on the basis of mistake.
Through out the will and let me take as an intestate distributee. I have standing to contest.
Joyce says that the answer will be no though.
T makes a will by which he gives all of his estate to his daughter Jane. Thereafter, T,
thinking that his daughter Jane is dead, tears up the will saying at the time, “Since my
daughter is dead, I desire to revoke this will and let my property pass to my only relative,
my son John.” In fact Jnae was not dead and survives T.
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Can Jane take under the will?
ANSWER: Yes. This is the classic case. Grant to Jill, revocation based on mistake. DRR
= no revocation. In this case the court will not say it was based on mistake, they will say
it’s a dependent relative revocation. If T used the word “if” it would be different.
In Year 1, t makes a will by which she leaves all of her estate to X. In Year 2 T makes
another “will” by which she leaves all of her estate to Y. Immediately after making this
second “will” T teasts up the Year 1 will with the intent to revoke it. As subsequently
appears, however, the Year 2 “will” is invalid, there having been only one attesting witness.
ANSWER: People make lots of different kinds of mistakes. One is thinking that their kid is dead,
the other is thinking that their second will is good.
BUT NOTE: The courts decided that you not only ask if there was a revocation and mistake, you
have to ask, what would the testator have wanted? Would the testator have wanted the first one
to be revoked despite the fact that the second one is no good?
So in number four you have to ask who’s X and who’s Y? If X is T’s old boyfriend with whom T
has had a big falling out. Then there’s no question that X is not going to take. The question then
becomes, what’s the second best thing? Would she rather have X continue to take or die
intestate?
HYPO: Same facts as above only X is a person related to Y. T leaves everything to X, then
determines that X can’t handle the money and therefore decides to leave it to Y. When we say let
the first will stand we’re saying apply DRR. When in the first hypo we don’t want the first will
to be revived, we’re saying don’t apply DRR.
5. T makes a valid will which reads: “I leave $5,000 to X and $5,000 to Y.” There is no
residuary clause. Thereafter, T scratches out “X” and inserts “Z.” In a jurisdiction which
permits partial revocation by physical act,
(a) Will X take $5,000 under the will?
ANSWER: Mistake is inserting Z. We got revocation, mistake, now we ask what would
T want? Ask, “Who is X?”
(b) Suppose, instead of crossing out “X”, T crossed out “$5,000” and inserted
“$6,000”
ANSWER: This is just a hint. In this case, it seems like T wants X to have money, so this
triggers the last step.
In Year 1 T makes a will. Thereafter T executes, with the requisite testamentary
formalities, an instrument which reads, “I hereby declare my Year 1 will revoked, but only
if and when I make another will.” T never makes another will. Is T’s will revoked?
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ANSWER: Sort of a trick question. This is a conditional revocation again.
In Year 1 T makes a will leaving her entire estate to his son John. Thereafter, T executes,
with the requisite testamentary formalities, a document which reads, “I hereby declare by
Year 1 will revoked.” At the time T executed this revocatory instrument T thought John
was dead. John was not dead and survived T. T would not have executed this revocatory
instrument if she had known that John was alive.
(a)
Can John take under the Year 1 will?
ANSWER: Was there a mistake? Yes. Was there a revocation? Yes. What would T want?
WARNING: In this type of problem many Courts will not even get into DDR. This is because
7(a) is like number 1 and not number 3. You’d need to take in extrinsic evidence and few courts
will entertain that. Mistake isn’t clear, therefore no DRR
(b)
Would your answer be different if the revocatory instrument read: “Since
my son John is dead, I hereby declare my Year 1 will revoked?
ANSWER: Here the mistake is apparent. Of course we will apply DRR—we know what T
intended was in revoking the will.
Joyce check list: Find a potential revocation, then find a mistake, then you have to ask if it’s a
physical act revocation, then ask what would the testator have preferred? If you’re in a written
revocation, you have some more questions: is there a potential revocation, is it based on mistake
and is it a mistake on its face. If yes  DRR
8. In Year 1 T make a will leaving all of his estate to X. In Year 2 T makes another rwill
leaving all of his estate to the minister of his church. This Year 2 will contains a clause
expressly revoking all prior wills. The minister is one of the two witnesses to this Year 2
will.
(a) Does X take under the Year 1 Will?
ANSWER: The mistake is thinking that the Minister can both take as beneficiary and be
a competent witness. Is this a mistake on the face? Joyce has no idea. That which is a
mistake on its face is a mistake which is obvious. Is this really an obvious mistake?
(b) Would your answer be different if the Year 2 will did not contain a revocatory
clause?
ANSWER: Is there a potential revocation? Yes, the inconsistent language. Remember the
second instrument has to be a good instrument. Then you go back to the litany of
questions. Revocation? Yes. Mistake? Yes. Written or Physical Act? Written. Mistake on
its face? Maybe (argue both ways).
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Probate and Contest of Wills
a. In General
If I’m worried about my mother in law’s stock and I don’t want to make her go through the
worry of having the stock come down while she’s executrix, then I’d say don’t do a will, do a
revocable trust and a pour-over will, making your daughter as successor trustee. This way, when
you die, all you need is a death certificate. On the other hand, if this stuff is part of the probate
estate, then you have to go through the procedure of probating the will. In this country we
basically have two forms: solemn form probate and common form probate. Common form is the
UPC approach, NY and Massachusetts has solemn form.
b. Difference Between Solemn Form and Common Form
(1) In solid form its more like an adversary proceeding, you have to make other people
parties to the probate. Unless they are, unless you follow the right procedural steps, the
probate process is invalid. This would result in a cloud on title to the property. Some
necessary parties might be in other states, they might be hard to find. It makes the process
more cumbersome.
NOTE: Necessary parties can waiver service of process.
(2) In Common Form, the will is probated and if people want to attack it then they can.
It’s irrelevant that they were never made parties. This is a lot like a revocable trust. It
performs the same speed function.
Standing and Right to Contest
a. Who must sign?
See SCPA 1403. This will tell you who is entitled to notice and therefore who must be served.
Problem
a. T dies, survived by his spouse A, his brother B, and two children, John and Wendy. T’s
will leaves one-half of his estate to John and one-half to A.
(a)
(b)
(c)
Can Wendy contest?
Can John contest?
Can B contest?
First: Determine who must be served.
 § 1403 provides that anyone who would take as an intestate distributee must be service
with notice of probate.
NOTE: § 1403 requires that you be an actual distributee.
Second: Determine if this party would be adversely affected by the probate. This is determined
by SCPA § 1410.
Problem:
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In Year 1 T makes a will leaving her entire estate to X and naming Y as executor. In Year 2
T makes another will expressly revoking all prior wills, leaving all of her estate to A and
naming B as executor.
(a) Can X contest the year 2 will?
ANSWER: First: Determine if X must be served. Here, X is not entitled to be served
because of § 1403(1)(a)(c) which requires that only people “designated in the will.”
That’s will number 2.
Next: Check subsection (d). D is another will, but that will has to have been filed in
Surrogates Court.
NOTE: This is a good reason not to file wills in the surrogates court. Why? Because now
you have to serve them, they might have not otherwise known. Now they have to be
served, they’re going to next ask you if they have standing to contest the will. The answer
is yes. BOTTOM LINE: X is not entitled to notice, but does have standing to contest the
will.
Commentary
In some probate petitions you have to sign documents under pains of perjury that you are
unaware of any other wills out there file with the surrogate or not. Why doesn’t the
legislature require X be given notice? Well, if its on file, they know it’s there. But where
it’s not on file, who the hell knows about X? And who knows how many X’s there really
are out there.
Next: Determine if X has standing
Does X have standing? Really? Suppose that X contests the will and gets the will thrown
out. Does X get the money? Maybe, maybe not. After X get’s T’s will thrown out he has
to go and probate his own will. Now we realize that we gave X standing to contest when
he really didn’t have standing.
SOLUTION: We give him presumptive standing.
HYPO: Let’s say you have an intestate distributee. The second will is offered for probate
and this intestate distributee says I have standing to contest. Surrogate says, no you don’t,
you got cut off by the first will. Intestate distributee will argue that after he can get rid of
the first will, then get rid of the second, he can contest them all.
HYPO: Let’s say that the first one is offered for probate, John contests and he loses.
Looks like X is getting the whole ball of wax. A comes in and says “I want to contest
that.” Now John is cut off.
HYPO: First will is offered for probate. A, who is getting all the money under the second
will comes in and says, “I want you to contest this first will.” You say to A “Don’t waste
your money.” If the first will is probated it doesn’t make any difference. Why? Because
the only way you’re going to get this money is to probate the second will, and when you
do probate the second will then the first one is gone. Besides, you don’t have standing.
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(b)
Can Y contest the Year 2 will?
ANSWER:
First: Is Y entitled to notice?
ANSWER: Y is not entitled to notice for the same reason X isn’t. In the real world, we never
know about Y or X.
Second: Does Y have standing to contest.
ANSWER: As a practical matter Y isn’t going to be very happy about the second will because Y
loses his or her job as executor. However, the legislature has determined that Y is not “adversely
affected.” This is because Y, as executor, would have had to work for the administration fees.
What Y loses in this work, Y gains in opportunity cost (i.e., the right to sleep in). See, e.g., §
1410.
BUT NOTE: There is a slight “good cause” exception here for Y. Good cause is basically
means that if Y can convince the court that Y knows an awful lot about the testator then it
will help the court to know if the will is good.
DISTINGUISH: SCPA § 1403(c): It seems to say that Anyone who is designated in the
will is entitled to notice when a subsequent will produces an adverse affect on them. BUT
NOTE: This provision applies to the situation where a Will says all to B, codicil says $1k
to Y. If that’s all we have, then both these instruments are going to be offered as one
testamentary scheme. Although the Codicil alters the Will, it is not totally inconsistent.
So what 1403(c) says is that B has to be given notice that there is a codicil which cuts his
share down. This statute, therefore, is designed to give B a chance to contest the codicil.
B does have standing. 1410, is he adversely affected by the probate of the codicil.
In year 1, T makes a will leaving her entire estate to X. In Year 2 T has a child, John. In
Year 3, T dies, survived by her husband and son, John.
(a) Can T’s husband contest?
ANSWER:
FIRST QUESTION: Is T’s Husband entitled to standing?
ASK: Is T’s Husband an intestate distributee?
ANSWER: Husband is, so yes.
SECOND QUESTION: Can T’s Husband Contest?
ANSWER: You have to figure out his right of election. If it is greater than the will, than no, he
does not have standing. If it is less, then yes, he doesn.
BUT NOTE: If according to the numbers it makes no difference whether the will is thrown out
or not, technically there should be no standing. However, a court may say they’re always going
to give a surviving spouse a chance to contest.
(b) Can John contest?
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ANSWER:
FIRST QUESTION: Is John entitled to notice?
ASK: Is he an intestate distributee?
ANSWER: Go to § 5-3.2 (after-born children). Look at the facts and see what he gets. Under §
5-3.2, John is entitled to a share equal to what he’d take under intestacy. If he’s able to get the
same rights under § 5-3.2, then he has no standing—he really has no standing—because he can
exercise his “right of election.”
In Terrorem Clauses
EPTL § 3-3.5: Conditions qualifying dispositions; conditions against contest; limitations thereon.
HYPO: Will leaves an intestate distributee (child for example) $50k. And that particular child’s
intestate share would be $100k. They get notice (unless they waive) they have standing (b/c
they’d get more), caveat is the will says “If you contest, you lose your share under the will.”
That’s and in terrorem clause.
Criticism: Suppose that clause was put in because of the undue influence of the person who
would otherwise get the entire estate. Child should be able to say, my parents would never say
that, it’s only X who coerced my parent.
Subsection (b): An interrorem clause is good despite the present of probable cause subject to the
following:
(1) if the claim is one of fraudery, based on probable cause, then the interrorem clause
won’t have effect.
(2) Infant or incompetent can contest. In terrorem clause won’t have effect. Why?
Because the challenege is really brought by the guardian, not the infant/incompetent.
(3)(A) Is the real biggie, we won’t enforce the interrorem clause if you challenge
jurisdiction
(3)(B) Is the real biggie. This is potentially devastating. I can go into the court and give
all sorts of information to the court without it consisting of a contest.
IMPACT/SIGNIFICANCE: Read this in conjunction with 1408. 1408 says that
we put special duty on the Surrogate even where the parties aren’t going to
contest this. So, 1408 puts the duty on the court to discover the genuineness of the
will, and that it was not the result of coercion. The two statutes read together
mean that if someone can come to the court and give them information that would
suggest the Will is not genuine without actually themselves contesting the will
because of the court’s obligation to investigate the matter sua sponte.
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(3)(E) says that if you ask for a construction in the will, and you get one that means the
will has the same effect that it would if you were to get the will thrown out, then that is
not a contest.
Grounds for Contest, really the first thing you’d look for in real life.
a. In General
In the real world there are three common grounds for Will Contests (1) testamentary capacity, (2)
undue influence and (3) due execution. Less significant in the real world are (4) fraud and (5)
mistake.
1) Testamentary Capacity
The testator must have the ability to know (1) the nature and extent of his or her property;
(2) the natural objects of his or her bounty; (3) the nature of the testamentary act he or she
is performing; and (4) how all of these relate to constitute an orderly plan of disposing of
his or her property.
2) Undue Influence
General rule: A Will must be a true expression of the testator’s wishes, if it instead
reflects the desires of some person who controlled the testator’s thoughts or actions we’re
going to deny it on grounds of undue influence. For something to be “undue” it’s got to
be mental coercion.
3) Due Execution
We saw that attestation clauses and the supervision of an attorney will get you over the
finish line on your motion for summary judgment.
4) Insane Delusion
HYPO: I leave half my estate to the united way. The other half I leave to my friend Joe,
aka, Elvis Presley. Someone’s going to come in with standing and say that this was the
result of an insane delusion. “It exists when a person persistently and against all evidence
and probability believe facts which have no existence except in his or her imagination.”
ISSUE/AMBIGUITY: Is something a mistake or is it an insane delusion? If it’s a
mistake, then it’s not going to be grounds for getting rid of the will.
If it is an insane delusion, what should happen? Should the will get thrown out? Should
everything go to the united way? Insane delusion is only effective as a contest to the
extent that it affects the will. It has nothing to do with United Way. But remember,
whenever you get into half or partial stuff, always remember the restrictive covenant, the
garage.
If you can separate the provision that is invalid from the rest of the will, then you can go
ahead and probate the rest of the will. But if it really is inseparable, then you have to
throw out the whole thing.
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HYPO: We have two instruments, one is a draft one is an actual will. This is an estate
worth about $1 million. Drafted will says $500k to X. The actual will which was
executed says I leave $50k to X, the rest I leave to Y.
X wants the will reformed so that X gets $500k, or in the alternative wants the will
thrown out because X is an intestate distributee.
BOTTOM LINE: If draft is clear and convincing evidence that the final draft is wrong,
then you can reform it even though the will is ambiguous.
Mistake and Ambiguity
a. Mistaken Omission—Relief May be Granted
Historically, courts have ruled that extrinsic evidence is not admissible to show that a provision
was mistakenly omitted from a will, or that a provision contained in the will is not what the
testator intended. Absent evidence of fraud, duress, or suspicious circumstances, it was
conclusively presumed that the testator understood and approved the terms of the will when she
signed it.
RATIONALE: The courts are reluctant to have property pas, not pursuant to the terms of a duly
executed will, but on the basis of oral testimony. However, recent decisions have grated relief
where there is clear and convincing evidence that a provision was omitted by mistake
EXAMPLE: T’s will, after making several bequests, provided: “All the rest, residue, and
remainder of my estate, which I may own at my death.” The sentence ended at this point.
T’s earlier will, replaced and only slightly modified by this one, named a residuary
beneficiary. The drafting attorney testified that the modifications were made on a copy of
the will contained in the attorney’s word processing machine, and that some lines had
been dropped due to computer error. The surrogate approved insertion of the omitted
sentence, naming the same residuary beneficiary, based on clear and convincing evidence
of T’s intent. In re Estate of Herceg.
b. Plain Meaning Rule—Evidence Not Admissible to Contradict Plain Language
If the language of a will is unambiguous, evidence is not admissible to show that the testator
made a mistake in describing a beneficiary or the property that was to be the subject of the gift.
RATIONALE: The testator signed the will and is conclusively presumed to have read,
understood, and intended its contents. To allow oral testimony to contradict the will’s plain
meaning would open the door to fraud. Declarations of the testator—even those made to the
attorney who drafted the will—are not admissible to show that the legatee named in the will was
designated by mistake.
4. Extrinsic Evidence Admissible to Cure Ambiguity
a. Latent Ambiguity—Mistake in Application
A latent ambiguity exists when the language of the will, although clear on its face in describing a
beneficiary or property, results in a misdescription when applied to the facts to which it refers.
There are two types of laten ambiguity. One type describes a person or thing, and two or more
person or things fit the description. The other type exists when no person or thing fits the
description in the will, but two or more persons fir the description in part, or imperfectly.
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Extrinsic evidence, including declarations by the testator to her attorney or to third persons, is
admissible to cure the ambiguity.
b. Patent Ambiguity—Mistake on Face of Will
A patent ambiguity exists when the uncertainy appears on the face of the will (e.g., where the
willmentions two cousins, Mary Smith and Mary Jones, and then makes a gift, “to my cousin
Mary”). Extrinsic evidence, including statements made by the testator to her attorney, but not
declarations by the testator to third persons, is admissible to cure the ambiguity.
Restatement Approach
The restatement says that if the draft amounts to clear and convincing evidence, then you reform
the executed will. Professor Joyce believes that the law is moving in this direction.
Extrinsic evidence: The very nature of a latent ambiguity is such that extrinsic evidence is
necessary to establish the ambiguity. At common law, the courts would admit extrinsic evidence
both to establish and to help construe a latent ambiguity.
BUT NOTE: If the ambiguity cannot be resolved, the gift will fail.
Lapse
a. In General
If a beneficiary fails to survive the testator, the gift is said to lapse. A lapsed gift fails. Lapsed
gift falls into the residuary
RATIONALE: It is presumed that the testator intended the beneficiary personally to benefit from
the gift. If the beneficiary predeceases the testator wand there were no lapse doctrine, the gift
would pass too the beneficiary’s estate to be distributed either to the predeceased beneficiary’s
heirs or to a devisee under the predeceased beneficiary’s will—neither of whom the original
testator may have met. The reasonable assumption is that if the named beneficiary predeceases
the testator, the testator would prefer that the gift be revoked.
This is 3-3.3 and 3-3.4. With out the statute, the lapsed gift would go to the residuary. Our antilapse statute says: Unless the will provides otherwise . . . if there’s a disposition made to the
issue, or to a brother or sister of the issue . . . . it goes to the issue by representation. So if you
have a close family person, then your lapsed gift can go to their children.
NOTE: our statute doesn’t apply to grandnephews or grandnieces.
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A, B, C, & D are alive when T executed the will.
Who takes what?
ANSWER:
EPTL § 3-3.4. This is an anti-lapse statute.
The common law said that if you make a gift whereby half your estate goes to A, and then half
goes to B, then it doesn’t go to B at all. Instead, it will pass by intestacy. But § 3-3.4 says that if
you’re making that division, you were group minded. Therefore, if one does not survive, then the
gift goes to the residuary legatees.
BUT NOTE: This first has an ordering provision! (In other words, apply § 3-3.3 before § 3-3.4).
FIRST: Look at D.
ANALYSIS: D is a living child. “The rest of my estate I leave to my issue.” What would D take?
It’d be easy if c was alive. ¼ to C and D, 2/4 get’s split 3 ways between a1, a2, and b1. Here,
however, C is dead. So what happens? Look at § 3-3.3. This says since C’s an issue we can apply
the antilapse statute, BUT that would only kick in if C has issue. C doesn’t have issue, so our end
result is that under § 3-3.3, C’s gift lapses.
Now because the gift has lapsed, and because it passes into the residuary, then we have to
apply § 3-3.4. § 3-3.4 says we spread it among the residuary legatees. That is A, B and D. They
each get 1/3 of C’s ¼. So, what is D’s interest? ¼ + 1/3 of ¼, which comes out to 1/3 for A, B,
and D.
Now, does that 1/3 of ¼ go to the grandkids? Go to 3-3.4 which says go to 3-3.3. In this case the
anti-lapse kicks in. if you were to apply a representation notion, then after D get’s his third, then
the remaining 2/3rds are split among a1, a2, and b1.
But § 3-3.3 is different! (a)(3) says with respect to the gift, it’s as though class dispositions are
named as individuals. Therefore treat each named person as a separate share and apply the antilapse statute. So, A’s 1/3 goes to a1 and a2. B’s 1/3 goes to b1.