Statutes and Cases to Know
Statute
4-1.1
Title
Intestate Succession
Page
p. 61 of RB
Table of
Consanguinity
p. 67 of CB
Rule
Cases
4.-1.1(a)  spouse gets $50,000 plus ½ residue.
Gruen  you can make an irrevocable
transfer of a future interest, as long as you
have a present interest in doing so, and you
do not retain power to revoke it. (p. 46 of
CB)
4-1.1(a)(2)  spouse and no issue, spouse gets it
ALL.
4-1.1(a)(3)  no spouse and only issue, the
whole goes to the issue by representation. § 53.1 exempted property will also go to the kids.
4-1.1(a)(4)  if one or both parents survive, and
there is no spouse and no issue, then the
parent(s) takes all.
4-1.1(a)(5)  “Brothers and sisters and their
issue.” This statute gives preference to
decedent’s closest collateral, and then any issue.
Degree doesn’t matter.
4-1.1(a)(6)  says that if there are one or more
grandparents, or issue of grandparents, and no
one else survives, then the estate is split in half.
Half to maternal side, other half to paternal side.
If there aren’t any grandparents, then it goes to
the issue of grandparents (issue of grandparents
= grandchildren of grandparents. Does NOT
include great grandchildren!).
4-1.1(a)(6)  applies to grandparents and issue
of grandparents by representation. First cousins
can take by representation.
4-1.1(a)(7)  if there is only a great grandchild
of grandparents left surviving, and no closer
issue, then that person CAN take. However, that
is as far as it goes. After that point, the property
will escheat to the State of New York. Also,
property will NOT go to a great-grandparent in
NYS.
Page 1 of 32
Statutes and Cases to Know
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Title
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Cases
8-1.1
Disposition of Property
for Charitable Purposes
p. 172 of RB
Cy Pres Doctrine  if you cannot do something
specifically with T;s property, you can
accomplish T’s general intent by using a more
palatable methodology, so long as it is not
illegal or against public policy.
Shapira  partial restraints are not against
public policy (trust condition that trustee
must marry a jew girl or you are out is
against PP and is not statutory)
Pace  waste is against public policy—
can’t order a house torn down in will
against public policy. (p. 27 of Supp)
Beck  meeting T’s wishes promotes
public policy—but only b/c contact signed
earlier. (p. 32 of Supp)
Walker  disclosing contents of adoption
decrees is against public policy (p. 36 of
Supp)
5-3.1
Exemption for Benefit of
Family
p. 97 of RB
Certain property is exempt (by giving it to the
family) to keep it from the decedent’s creditors.
This section also takes away decedent’s ability
to govern it by will. It applies to the spouse OR
children under 21. Jewelry does not apply here!
---
UP to $15,000 from bank accounts and then
personal effects—car fits in here too up to the
$15,000
To Distribute Property
1-2.14
Per Stirpes
p. 8 of RB
Property is passed as follows:
Divide property into shares at the first
generational level where someone is alive.
Each person at the first level takes a share.
If a person at the first level is dead, then their
share passes to their issue.
Page 2 of 32
In New York State, we take by rep:
Shumavon  first cousins once removed do
not take unless everyone else is dead. 41.1(a)(6) excludes great-grandchildren of
decedent’s grandparents. Emily can’t take
from Adele if Barbara dies, unless everyone
Statutes and Cases to Know
Statute
Title
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else is dead too. (p. 49 of Supp)
Martineau  if decedent is ONLY survived
by issue of his/her grandparent (meaning
not survived by issue, parent, issue of a
parent, or her grandparent), then the estate
is split in half and half goes to the maternal
side and half goes to the paternal side to be
divided by rep. (p. 48 of Supp & 87 of CB)
1-2.16
By Representation
p. 9 of RB
Property is passed in equal shares as follows:
Divide property into shares at the first
generational level where someone is alive.
Each living person at that level takes a share.
The shares belonging to any dead people at that
level are combined and split evenly among the
takers at the next generational level.
See Shumavon
See Martineau
Adoption and Non-Marital Children
1-2.10
Issue
p. 6 of RB
Issue are the descendants in any degree from a
common ancestor, including adopted children.
See Best.
2-1.1
Heirs Defined
p. 13 of RB
“Heirs” and “Next of Kin” means distributees.
---
2-1.3
Adopted Children and
Posthumous Children as
Members of a Class
p. 14 of RB
Unless testator expresses otherwise, “issue,” etc.,
includes:
(a)(1)  adopted children and their issue in the
adoptive relationship. Rights of adoptive
children and their issue to take through the
natural relationship are covered in 117(2).
(a)(2)  children in the womb when disposition
becomes effective.
(a)(3)  a non-marital child is the child of a
mother and is the child of a father if and only if
the child is entitled to inherit from such father
under 4-1.2.
See cases listed with § 117 of the DRL.
Page 3 of 32
Statutes and Cases to Know
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Title
Page
Rule
Cases
4-1.2
Inheritance by NonMarital Children
p. 66 of RB
To prove paternity:
(a)(1)(A)  order of filiation has been entered.
(a)(1)(B)  father signed instrument
acknowledging paternity.
(a)(1)(C)  clear & convincing evidence +
father has openly and notoriously acknowledged
child as his own.
(a)(1)(D)  blood genetic marker test had been
administered prior to father’s death + some other
evidence = clear & convincing evidence.
Santos (2003)  the statute needs
amending! DNA should be sufficient on its
own. Father cannot inherit from nonmarital daughter by DNA alone(Decision of
Interest in class)
Janis (1993)  post death DNA testing is
not admissible where body would be
exhumed.
Anne R. (1995)  decedent was killed and
his blood samples were readily available.
Therefore, posthumous DNA testing was
not unreasonable.
Bonanno (2002)  posthumous DNA test
results are allowed under (C).
DRL § 117
Effect of Adoption
p. 58 of Supp
Adopted-In Children  117(1)(e)
If decedent is adoptive parent of adopted-in
child  then child takes through adoptive parent
relationship.
If decedent is natural grandparent or descendant
of such grandparent of adopted-in child  then
child takes through natural relationship.
NY  an adopted-out child cannot inherit
from or through the natural relationship.
117(1)  effect of adoption on intestate
succession.
117(1)(e)  no double-dipping allowed (where
child is related by both natural and adoptive
relationship, then child takes through natural
relationship, UNLESS adoptive parent is the
decedent—then take through adoptive
relationship).
Two prong (but only for kid, not parent—one
way street):
- decedent must be close family relative
Page 4 of 32
Seaman (1991)  if an adopted child has
issue, and the adopted child was adopted by
a stepparent, the issue of the adopted child
can take through the natural relationship. It
is not specified that issue of the adoptive
child can take, but it is implied by the
statute. This is the Chrissy example – see
notes! Note: Wells decided this case! (p.
69 of Supp)
Jacob (1995)  unmarried partner of a
child’s biological parent is allowed to adopt
the biological parent’s child, and doing so
will not terminate the biological parent’s
parental rights. This case involved an
unmarried heterosexual couple. (p. 77 of
Supp)
Dana (1995)  same as Jacob, but this case
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the adoptive parent must be a person
closely related
involves a homosexual couple, where one
partner wanted to adopt the child of the
other.
Best (1985)  decedent grandmother made
a trust providing for her “issue.” The court
held that a child who was the blood
grandchild of the grandmother is not “issue”
because the grandchild was adopted out of
the family. Giving adopted-out children
rights to inherit from their natural family
would go against public policy to keep
adoption records sealed. (p. 108 of Supp)
§ 117(2)  the legislature amended this
section in response to Best, so that if a
decedent grandparent made a trust
providing for her “issue,” and there was a
natural grandchild of the grandmother
adopted by a close family member, that
child would be able to inherit through the
natural relationship.

only from grandparent down—
not great-gp--stepparent, child’s
natural grandparent, or a
descendant of the child’s
grandparent
117(2)  effect of adoption on instruments.
117(2)(c)  no double dipping allowed (where
child could potentially be a part of more than
one class in the instrument).
PROPOSED AMENDMENT TO § 117 & EPTL
2-1.3(a)(1):
If a child is adopted by an unrelated person who
lives with the child’s custodial parent, the child
and her issue can inherit through such parent.
J: this is like Trish and her girls and Marion.
This reform is proposed based on cases like
Jacob and Dana.
The general rule that adopted-out children inherit
from and through their adoptive parents and
kindred but not from or through their natural
parents or kindred is not of long-standing
duration. The statute was enacted in New York
"to place the adopted child for inheritance
purposes in the bloodstream of his new family
just as a natural child, and sever insofar as
possible all connection with the natural family."
Page 5 of 32
Statutes and Cases to Know
Statute
DRL § 73
Title
Legitimacy of Children
Born by Artificial
Insemination
Page
Rule
Cases
p. 61 of Supp
p. 65 of Supp
Such children are legitimate, natural children of
the H& W for all purposes.
PROPOSED AMENDMENT TO § 73:
2000 – proposed legislation would
recognize changes in technology and
legitimate children born through means of
assisted reproduction (not just artificial
insemination). (p. 65 of Supp)
Wrongful Death
5-4.1
Wrongful Death
p. 102 of RB
(1) Decedent’s personal representative can
commence a wrongful death action against one
whose wrongful act, neglect or default caused
the decedent’s death. The action must be
commenced within two years of the decedent’s
death.
(2) If a criminal action has commenced against
the wrongdoer in connection with the act that
caused decedent’s death, then the personal
representative of the decedent has at least one
year from the termination of the criminal action.
This is true even if the action did not commence
within two years of death.
---
5-4.3
Amount of Recovery
(Pecuniary Damages)
p. 104 of RB
Pecuniary damages may include loss of support
and services, as well as lost wages and actual
expenses.
(a)  damages in a wrongful death action are
the “fair and just compensation for the pecuniary
injuries resulting from the decedent’s death to
the persons for whose benefit the action is
brought.”
(b)  distributees may recover punitive
damages if the decedent could have recovered
them if she had survived.
(c)  if the action involves wrongful conduct
because of medical or dental malpractice, the
Gonzalez (1991)  pecuniary damages for
wrongful death are allowed where relatives
of the decedent had a reasonable expectancy
of future assistance or support by the
decedent, but such expectancy was
frustrated by the decedent’s death. (p. 102
of Supp)
Page 6 of 32
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jury or court should consider tax implications
when determining the size of the damages
awarded.
5-4.4(a)
Distribution of Damages
Recovered
p. 107 of RB
Damages recovered are exclusively for the
benefit of the decedent’s distributees, and are
distributed according to 4-1.1 and 5-4.5
(nonmarital children), except where the decedent
is survived by parent(s) and spouse, but no issue.
---
5-4.5
Non-Marital Children
p. 108 of RB
For purposes of wrongful death, a non-marital
child and his father are each other’s distributees
to the extent permitted by 4-1.2.
---
Disqualifications (advancements, death, renunciation, no longer spouse, murderer)
2-1.5
Advancements
p. 15 of RB
In order to prove an advancement in NYS:
There must be a contemporaneous writing
signed by the donor or donee.
See p. 19 of barbri review
To calculate the effect of an advancement:
Add gift amount to value of estate. Distribute
accordingly to the distributees. Subtract the
amount of the advancement from the donee’s
share.
2-1.6
Simultaneous Death
p. 16 of RB
(a)  if there is no sufficient evidence to prove
that simultaneous death did not occur, then
property of each person is disposed of as if he
had survived the other.
(b)  creates a presumption relating to
successive beneficiaries who take by reason of
surviving (seldom used section).
(c)  jointly owned property is distributed onehalf to A’s distributees and one-half to B’s
distributees, where A and B were joint tenants
and died simultaneously.
Page 7 of 32
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(d)  the insured is deemed to have survived the
beneficiary where both die simultaneously—
proceeds go to the estate.
(e)  this section is a default rule and does not
apply to wills, lifetime trusts, deeds or insurance
contracts if a provision exists disposing of the
property in another manner.
2-1.11
Renunciation
p. 25 of RB
(a)(1)  definition of disposition
(a)(2)  effective date of the disposition
(b)(1) 
(b)(2)  renunciation shall be in writing, signed
and acknowledged by the renouncer, and filed in
the court with jurisidiction Renouncer must also
execute an affidavit stating that he has not
received any consideration. Notice shall be
served upon the fiduciary and interested parties.
A beneficiary may renounce a disposition within
nine months of its effective date in a signed and
acknowledged writing.
Note: if you have a life estate, you cannot accept
consideration in exchange for renouncing the life
estate to accelerate the remainder interest.
(c)  if an infant’s guardian renounces on the
infant’s behalf, the renunciation is rarely allowed
(unless the child has received value in exchange
for the renunciation; or the renunciation benefits
the child in the long run).
(d)  the effect of a renunciation is that the
renouncer is treated as having predeceased the
decedent. HOWEVER, if the renunciation
would result in per stirpes (after 1992), then the
Page 8 of 32
See p. 20 of barbri review & 23-24 of notes
Baird  you cannot renounce an
expectancy interest created by intestacy,
because an intestate interest is created only
at the death of the intestate decedent.
A person may renounce because:
She already has enough money (rare)
She does not want creditors to get her
property.
She wants to achieve a tax benefit.
Renunciation does NOT defeat a federal tax
lien! (Drye case).
You cannot renounce for Medicaid
purposes, because it is against public policy.
To plan for Medicaid, set up a supplemental
needs trust for the beneficiary that is on
Medicaid (this keeps the money in the
hands of the beneficiary!).
Statutes and Cases to Know
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property is to pass as though the renouncer died
on the same date as the decedent immediately
after – not before. (see p. 29 of RB)
(e)  a beneficiary may renounce her entire
interest in property or a part of it.
(f)  cannot renounce property you have
already accepted.
(g)  renunciations filed are irrevocable.
5-1.2
Disqualification as
Surviving Spouse
p. 92 of RB
A spouse is disqualified from taking a share
from their deceased spouse’s estate if:
(a)(1)  a final decree of divorce or annulment
is valid under NY law.
(a)(2)  the marriage is void as incestuous or
bigamous.
(a)(3)  the surviving spouse procured a divorce
or annulment outside of NYS, which is not
recognized as valid under NY law. (NOTE: if
the deceased spouse procured a divorce or
annulment outside of NYS, which is not
recognized as valid under NY law, the surviving
spouse is NOT barred from taking!).
(a)(4)  a final decree of separation has been
rendered against the surviving spouse. A
separation agreement is not enough – must be a
separation decree! This statute does NOT bar
the surviving spouse if the final decree was
rendered against the deceased spouse.
(a)(5)  surviving spouse abandoned deceased
spouse.
(a)(6)  surviving spouse refused to support
Page 9 of 32
See p. 39 of barbri review
Statutes and Cases to Know
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A person who has been convicted of first degree
or second degree murder in the killing of a joint
tenant is disqualified from succeeding to any
interest therein beyond what he has contributed.
** This statute requires a conviction (so Covert
would not fall under it).
Riggs  a wrongdoer is not allowed to
profit from his or her crime at the expense
of the victim’s estate; and a wrongdoer is
prevented from acquiring a property
interest. (handout and p. 16 of CB)
Ford (MD-1986)  slayer’s rule. For the
slayer’s rule to be invoked, the killing must
have been both felonious and intentional. It
is not applicable when the killer was not
criminally responsible at the time of the
killing. (p. 17 of CB)
79-b of Civil Rights Law  a murderer
does not forfeit his own property.
Schwartz  if one spouse contributes to the
other spouse’s death while a divorce
proceeding is in process, then the right to
equitable distribution of marital property is
not imposed where the killer-spouse would
benefit. Normally, to allow equitable
distribution of property after one spouse
dies is against the laws of NYS – NYS is
not a community property state. However,
if one spouse murders the other, he is
deprived of property he would have lost
had the divorce been completed. (p. 117
of Supp)
Sperber (administrator of Schwarz estate
brought this case)  material factual
allegations must be made that killer-spouse
consciously and intentionally brought about
the decedent-spouse’s death, if the marital
property is to be equitably distributed. (p.
123 of Supp)
Bobula (1966-Erie Co.)  if killer is found
deceased spouse.
4-1.6
Disqualification of Joint
Tenant in Certain
Situations (MURDER)
p. 71 of RB
Bank accounts jointly held with a murderer 
the murderer only gets what he put in!
See p. 72 of RB  Covert and Riggs.
Page 10 of 32
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to be insane, then property is distributed to
killer and his issue if they could take.
Covert overrules Bobula! (p. 126 of Supp)
Liebman (1987)  a killer forfeits his
survivorship rights in a joint bank account,
but he does NOT forfeit his rights to the
moiety! This is because a joint tenant
could, at any time, have gone to the bank
and withdrawn the moiety interest simply
by signing the withdrawal slip—the killer
did not have to kill to get his moiety. Killer
bears burden to show that he did not
consent to the moiety withdrawal by the
decedent. (p. 134 of Supp)
Covert  a wrongdoer’s heirs and
distributees are not disinherited by the
victim’s estate—they are innocent
distributees and shall take. If a killer can
change a beneficiary, then the property is
his to keep (did not have to kill to get the
property if able to change beneficiary).
(handouts – case and law review article; p.
24 of CB).
Right of Election
5-1.1-A(a)
Right of Election by
Surviving Spouse
p. 81 of RB
(2)  to calculate the elective share.
(4)  items that reduce the elective share are:
interests passing absolutely from decedent to
spouse (including interests that spouse could
have gotten but renounced), by intestacy, by
testamentary substitute, or by decedent’s will.
(See pg. 88 of RB!)
(4)(A)  if spouse uses her ROE, then she is
treated as though she died immediately before
the decedent spouse.
Page 11 of 32
Inter Vivos Trusts
Sullivan v. Burkin (MA-1984)  assets of
an inter vivos trust are treated as part of the
deceased spouse’s estate for purposes of
Mass’ elective share statute. The trust must
have been created during the marriage by
the deceased spouse, and he alone must
have had a general power of appointment,
exercisable by deed or by will. (p. 161 of
CB)
Statutes and Cases to Know
Statute
5-1.1-A(b)
Title
Testamentary Substitutes
Page
p. 81 of RB
Rule
Cases
(4)(B)  an interest does not pass absolutely if it
consists of less than the decedent’s entire interest
in the property.
Newman v. Dore (NY-1937)  a valid inter
vivos trust cannot cut the wife off from her
elective share rights. (p. 165 of CB)
(1)  any transaction described in A through F
or H that is irrevocable or revocable only with
the consent of a person having a substantial
adverse interest WILL be a testamentary
substitute only if it is effected after the date of
marriage.
(1)(A)  gifts causa mortis are testamentary
substitutes (because they are automatically
revoked if you live).
(1)(B)  a gift made within one year of death is
a testamentary substitute. The exception is if
you give gifts up to $11,000 – then it will NOT
be a testamentary substitute.
(1)(C)  a totten trust is a testamentary
substitute.
(1)(D)  joint bank accounts are testamentary
substitutes.
(1)(E)  real property held in a JT or TBE and
payable on death to a person other than the
decedent is a testamentary substitute. (see
Reynolds; Reifberg).
(1)(F)  retained life estates are testamentary
substitutes. Decedent must have retained a life
estate after August 31, 1992 in the income (or
right to the income) from the property; or at date
of death, decedent retained a power to revoke
either alone or with any one else who does not
have a substantial adverse interest. This section
includes lifetime trusts (UNLESS: 1-decedent
received money for the transfer; or 2-decedent
needs consent of person with substantial adverse
Riefberg (1983)  a shareholders buy-sell
agreement is a testamentary substitute
according to the Court. However, what
really matters is whether there is an adverse
party to the change made by decedent to the
contract. (p. 143 of Supp.)
Boyd (1994) life insurance contracts are
not testamentary substitutes and this was the
legislature’s specific intent. (p. 153 of
Supp).
Reynolds (1996)  Joyce argued this case
and won! An inter vivos trust constitutes a
testamentary substitute where at the date of
death, the decedent retains a limited, yet
meaningful power to control the trust
(decedent was able to designate
beneficiaries).
Page 12 of 32
To Argue Life Ins is a Test Sub:
In light of Reynolds & 5-1.1-A(b)(1)(F)(ii),
life insurance should be considered a
testamentary substitute. Reynolds is about a
person maintaining meaningful control over
an inter vivos trust, and how that
meaningful control makes the trust
revocable so that it is a testamentary
substitute. Along those lines, if a court
considers a life insurance policyholder’s
ability to change the beneficiary designation
“meaningful control,” then life insurance
should be a testamentary substitute! The
only real reason why life insurance is not a
Statutes and Cases to Know
Statute
5-1.1-A(c)
Title
General Provisions
Governing the ROE
Page
p. 83 of RB
Rule
Cases
interest). See p. 90 of RB.
Note: it looks like life insurance could be a TS
under (ii) of this provision b/c it is a contractual
arrangement, but it is not! (see Boyd)
(1)(G)  pension/retirement etc. plans are
testamentary substitutes. However, it is NOT a
testamentary substitute if the decedent
designated the beneficiary on or before Sept. 1,
1992, and did not change such beneficiary
designation after that date.
(1)(H)  interest in property that decedent had
an IRC 2041 power of appointment over, which
was released within one year of death or
exercised in favor of another person.
(2)  consideration furnished test. Surviving
spouse bears burden to prove that spouse
furnished X amount of the JT held with a third
party, in order to get X amount back for the
ROE. If surviving spouse is the other tenant, it
is presumed that decedent contributed one-half.
(3)  property in (E) includes U.S. savings
bonds.
TS is because the legislature wants it that
way (see Boyd).
(2)  surviving spouse’s share comes ratably
from decedent’s other beneficiaries, including
any intestate beneficiaries, beneficiaries under
the will, and beneficiaries of testamentary
substitutes. (p. 88 of RB)
(3)  ROE is personal to the surviving spouse,
except that an election may be made by a
guardian, etc.
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Page 13 of 32
Watch out for life estates:
If you have a lot of money going in, you can
set up a trust, give the kids the remainder,
and keep a life estate (even with the right of
revocation of the life estate)—side steps the
right of election…can be done w/o consent
of wife if done before the marriage
Watch out for JT before marriage:
Suppose I set up a joint bank account or a
JT (in other property) before the marriage.
Is that covered by the last sentence of
(b)(1)?
Half of the joint bank account is within the
last sentence of (b)(1) b/c I can take out half
and the other half is irrevocable and it
would be the same in a JT (1/2 of Blackacre
or whatever)
In terms of planning, you can’t say that you
can set up a joint bank account with kids
from a former marriage and sidestep right of
election with any certainty
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5-1.1-A(d)
Procedure for Exercise of
ROE
p. 83 of RB
(1)  ROE must be filed within 6 months from
the date when letters are issued, but no later than
two years after death of decedent.
---
5-1.1-A(e)
Waiver of ROE
p. 84 of RB
(1)  can only waive ROE during spouse’s
lifetime (cannot waive after spouse has died).
Can waive as to a particular will or testamentary
substitute, or all generally.
(2)  a waiver or release must be in writing,
signed, and acknowledged before a notary
public.
(3)  waiver can be made with or without
consideration; before or after marriage.
Geddings (So. Carolina)  statutory fair
disclosure is necessary for a valid waiver.
Fair disclosure means each spouse is given
general and approximate info concerning
the net worth of the other. (p. 184 of CB)
If Geddings was decided in NY, the court
would hold that the wife doesn’t need to
know specifics about H’s net worth.
Geddings  full
disclosure about your
spouse’s assets is
necessary for a valid
waiver.
Davis NY 
disclosure of a
financial situation is
not required as a
condition as to the
validity of a waiver
agreement! (NYS)
Greiff (1998) 
disclosure is
necessary—but not
with particularity
NYS  New York does not have statutory
fair disclosure – we have Davis and Greiff.
Davis (1967)  disclosure of a spouse’s
financial situation is not required as a
condition as to the validity of a waiver
agreement! Proof of fraud or deception is
required to vacate a waiver – fraud or deceit
is NOT presumed between spouses. (p. 159
of Supp)
Greiff (1998)  disclosure is necessary –
engaged couples are in a fiduciary
relationship and certain “exceptional
circumstances” shift the burden to the
proponents of the agreement to prove
freedom from fraud, deception or undue
influence. Must look at the evidence
surrounding the circumstances of the waiver
signing. (p. 163 of Supp and p. 87 of RB)
Class notes  when you are married and
waive all rights to your spouse’s estate (not
just ROE!), you are waiving: (1) 4-1.1
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intestacy; (2) 5-3.1 family exemption; (3) 54.4 wrongful death; (4) 5-1.1-A ROE.
Testamentary Substitute Stuff
13-3.2
Rights of Beneficiaries of
Pension Plans, IRAs, etc.
p. 277 of RB
A person who is a beneficiary is entitled to
receive payment so long as the designation is
made in writing and signed by the person
making the designation.
Trigoboff (1998)  a specific testamentary
disposition overrides a default designation.
T may use unambiguous language in his
will to dispose of a specifically identified
IRA. (p. 18 of Supp)
McCarthy  substantial compliance
doctrine. If you are specific enough, your
policy can be revoked. A general
testamentary provision in a will does not
revoke a life insurance policy. To make
such a change, you must follow the rules set
forth by the contract, or at least show that
some effort was made by the insured to
change the designation. (p. 6 of Supp)
Freedman  if you are specific enough in
your will, you can modify a designation in
your IRA contract (T was too ambiguous
here). (p. 23 of Supp)
BL § 675
Joint Deposits & Shares
p. 370 of RB
When there is a deposit of cash, in the name of
the depositor and another to be paid to either or
the survivor, the funds are to become the
property of such persons as JOINT TENANTS.
Even though it is half revocable, it is half
irrevocable. Joint tenant takes through right of
survivorship.
675(b)  making a joint deposit is prima facie
evidence of the intent of both joint tenants to
create a joint tenancy. However, Justice
Cardozo says that there is a rebuttable
presumption of a joint tenancy. In order to rebut
the presumption and show that the account was
Brezinski  joint tenancy bank account vs.
convenience bank account. In order to
show that a bank account is not a joint bank
account, but merely set up for convenience,
the contestant must make a prima facie
showing to rebut the presumption that the
account is jointly held. (p. 13 of Supp)
Lang  a joint tenant withdrawing more
than her moiety from a joint account during
the life of the decedent is obligated to return
to the estate that amount which exceeds her
moiety. You have a right to take up to onehalf. (p. 15 of Supp)
Page 15 of 32
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NOT a joint tenancy, the challenger must show
that it was for the convenience of the depositor.
Consideration Furnished Test  § 5-1.1-A(b)(2)
Cases
Rule: if deceased spouse and a third party
share a joint tenancy, then the consideration
furnished test applies. The surviving spouse
(a non-party to the joint tenancy) has the
burden of proof as to the amount the
deceased spouse contributed to the joint
tenancy! The rationale is that the living
spouse is entitled to an elective share of his
or her dead spouse’s property, not property
that belongs to someone else (the 3rd party).
(p. 37 of Supp)
Rule: if dead spouse and third party entered
into a joint tenancy before the marriage to
the surviving spouse, and surviving spouse
can prove that dead spouse furnished
consideration, the surviving spouse only has
a right to take up to one-half (p. 38 of barbri
review).
BL § 678
Convenience Accounts
p. 370 of RB
An account for the convenience of the depositor
does not create a joint tenancy or a right of
survivorship. It is in the probate estate of the
person putting the money in.
See Brezinski
CPLR § 4519
Dead Man’s Statute
?
Witness cannot testify with respect to
conversations with the decedent because witness
stands to benefit.
---
7-5.1
Totten Trusts
p. 155 of RB
A TT is a testamentary substitute that permits the
depositor to retain full control of money during
his lifetime and to pas it, outside of probate, to
the named beneficiary at death. TTs are the only
non-probate device governable by will.
---
7-5.2
Revoking Totten Trusts
p. 155 of RB
During lifetime, there are only two ways to
revoke a TT: (1) withdrawal; (2) in writing (your
will).
---
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Old Statutes Dealing with Surviving Spouse’s Rights
RPL 189
Curtesy
p. 141 of Supp
Curtesy has been abolished in NYS.
---
RPL 190
Dower
p. 141 of Supp
Dower has been abolished in NYS.
---
RPL 200
Dower – special circs
p. 141 of Supp
In circumstances where a widow still retains the
right of dower, a husband may require her to
elect between dower and a provision for her in
his will.
---
After-Born Children
DEL 26
After-Born Children
p. 142 of Supp
This is now codified in 5-3.2
---
5-3.2
After-Born Children
p. 98 of RB
This statute protects ONLY children born after
the execution of the will, where (1) testator dies
leaving the child unprovided for by any
settlement; and (2) testator does not provide for
or mention child in the will in any way. If these
requirements are met, then the child is provided
for as follows:
Glomset (1976-Oklahoma)  children are
protected against unintentional
disinheritance. Extrinsic evidence was not
allowed to prove otherwise, b/c it was
apparent on the face of the will that the
child was unintentionally omitted. (p. 197
of CB)
(a)(1)  if T had one or more children living at
the time of the will’s execution, and:
(a)(1)(A)  no living children were provided
for, then the after-born is NOT provided for.
(a)(1)(B)  any living children was provided
for, then the after-born IS provided for as
follows:
(i)  after-born child cannot take more than
other children named in will.
(ii)  divide pot by number of all children to
determine after-born child’s share.
(iii)  if it appears that T made limited
provisions to his already living children at the
time of the will (spite provisions of $1 each to
L.W.K. (MA-2000)  if there is a child
support decree, then there is an obligation to
support children upon decedent’s death
because there is a legally enforceable
obligation to pay child support (so the
children will receive money from the
estate). However, if there is no child
support decree, then there is no legal
obligation to support the children (they are
effectively disinherited). This was a very
narrow decision. (p. 167 of Supp)
It is subservient to
testamentary intent. It
is there to serve that
intent. If, though, the
legislature says you can
disinherit your children,
then the only argument
you are left with is a weak
constitutional argument
(you could say that it is
against public policy to
deprive the kids of their
parent’s property).
Grandchild:
A is born after the will.
The statute does NOT
speak to grandchildren. It
only speaks to children.
Page 17 of 32
NYS  no authority exists like L.W.K. So
a testator can effectively disinherit his
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A1 is a grandchild and is
therefore not protected by
5-3.2. HOWEVER, this
argument was
REJECTED by the NY
Court of Appeals. In this
type of situation, the
grandchild WILL BE
PROTECTED. Treats it
almost as intestacy. If A
would have been
protected, then a1 will be.
This is called derivative
protection – since A
would have been
protected, then a1 is
allowed to be protected.
Rule
disinherit them), then the after-born child takes
his intestate share.
(iv)  if stuff is left to the children in the will,
not just money, then the after-born child is to
take his share of that property.
(a)(2)  if T had NO children living at the time
of the will’s execution, the after-born child takes
his intestate share.
(b)  the after-born child takes his share from
either the other children under (B), or from the
testamentary beneficiaries under (a)(2), and he
does so in proportion to each person’s own share
of T’s estate.
Cases
children. (p. 41 of my notes)
Legislature:
This statute is not about fairness to children;
it is about the testator’s intent to consider
his children.
RULE: if there are other kids living
at the time the will is executed, then
the after born child gets nothing if
the other kids get nothing!
Wills – Execution and Ceremony
1-2.19
Will
p. 11 of RB
A will is an oral or written instrument (per 3-2.1
or 3-2.2) to take effect upon death, whereby a
person disposes of property or directs how it
shall NOT be disposed of… which is revocable
during his lifetime.
Most states  you must affirmatively state
where your property is going.
NYS  any words of disinheritance are
valid and effective! You do not have to
affirmatively state where your property is
going.
3-2.1
Execution and Attestation
of Wills: Formal
Requirements
p. 34 of RB
(a)  every will must be in writing (for
exceptions to this rule, see 3-2.2).
(1)  T (or his proxy) must sign at the end of
the will. Proxy must sign in T’s presence and at
direction of T.
(A)  only apply this section if there is stuff
physically written after T’s signature, and before
T physically signs will. Anything written after
the signature is invalid. “Greeting card will” –
Morris (Texas)  issue of presence –
witnesses did not sign in the same room as
testator, so will was invalid. Would be
good in NYS, but prudent lawyer would
make sure it all happened in the same room.
(p. 212 of CB)
Bernatowicz (NY)  the proxy must be
directed by the testator to sign on his behalf.
An assisted signature is okay; whereas a
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last physical page is invalid.
(B)  only the attestation clause is given effect
if it follows the signature, nothing else! If
material is added to the will after the will is
signed, and the material physically precedes the
signature, it is invalid. (if referenced might come
in)
(C)(1)  proxy must sign his name and should
sign his address. Proxy shall not be counted as a
witness to the will.
(C)(2)  T must sign in front of the witnesses,
or else T must acknowledge his signature to the
witnesses.
(C)(3)  T must declare the will to be his will to
the witnesses.
(C)(4)  shall be at least 2 witnesses, who must
sign the will within 30 days of one another.
Failure to include W’s address will not affect
validity of will.
(b)  the order of formalities is not necessary,
just so long as it is done.
controlled signature is NOT. (p. 189 of
Supp)
Pirozzi (NY)  testator must declare the
will to be her will. (p. 187 of Supp)
Frank (NY)  the testator did not say the
will was his will, but the lawyer declared it
to be testator’s will. It is okay for T’s
request for witness to sign will to be
inferred. (p. of 185 of Supp)
Ranney (NJ)  witnesses did not sign the
will – instead they signed the 1406
affidavit. Substantial compliance doctrine
was enough to hold the will valid in New
Jersey. (p. 223 of CB)
Substantial Compliance  if clear and
convincing evidence can be shown that
witnesses intended to sign the will, then the
will is valid.
Page 19 of 32
NYS  does not have a specific substantial
compliance doctrine.
Pascale (NY)  in order to bring a
malpractice claim against a lawyer who
drafted a will, you must have privity with
that lawyer. The testator is in privity with
the lawyer, but not the beneficiaries. (p. of
192 of Supp and p. 76 of notes)
NYS  requires privity to bring suit against
drafting lawyer.
Pascale court said it would possibly
consider allowing beneficiary to bring claim
against the lawyer in very limited situations.
But ultimately upheld privity minority view.
(see p. 195 of Supp)
Statutes and Cases to Know
Statute
SCPA §1406
Title
Self-Proving Affidavit of
Attesting Witness Out of
Court
Page
p. 849 of RB
Rule
Since 1963, the law has permitted proof of wills
by affidavits executed out of court by the
attesting witnesses. This expedites probate
proceedings and curtails expenses.
Cases
See Ranney.
Trusts (also see p. 57 – 59 of my notes AND p. 197 of Supp)
7-1.17
Execution, Amendment
and Revocation of
Lifetime Trusts
p. 145 of RB
A lifetime trust requires some formalities:
(a)  to execute the trust:
It must be in writing.
The creator and at least one TE (if creator is not
the sole TE) must execute the trust.
Either acknowledge the trust like a deed or
execute it in the presence of two witnesses (Ws
must sign).
(b)  to amend or revoke the trust:
If the trust provides how to amend or revoke,
then that provision governs.
If the trust does not provide how to amend or
revoke, then the same formalities under (a) must
be followed to do so.
Notice of amendment or revocation must be
given to other TEs (if there are any), but failure
to do so won’t make amendment or revocation
ineffective.
No notary necessary!
If you have to use a proxy, just create a will
instead.
No need to ask witnesses to be witnesses.
7-1.18
Funding of Lifetime Trust
p. 146 of RB
How to fund a lifetime trust:
A trust must have a corpus to be valid (a trust
doesn’t work unless there are assets in it).
The trust must be funded during lifetime for this
section to apply.
Assets must be transferred to the trust.
---
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(a)  a transfer:
Cannot recite an assignment –not a valid
transfer.
(b)  if creator is sole trustee, transfer means:
Assets capable of registration (such as real
estate, stocks, bonds, bank and brokerage
accounts) must be recorded by deed or registered
in the name of the trust or trustee.
Assets not capable of registration must be
described with particularity in a written
assignment (ex: the painting).
3-3.7
Testamentary Disposition
to TE Under, or in
Accordance With Terms
of Existing Lifetime Trust
(Pour-Over Trust)
p. 47 of CB
This section creates an exception to the
prohibition against incorporation by reference
and allows a less formalized document than a
will to create a pour-over trust. BUT formalities
must be followed or else the trust is invalid.
Testator may direct in his will that his assets be
poured over into a trust he made during his
lifetime.
This has added to the popularity of the revocable
lifetime trust as a major estate-planning device.
Formalities must be followed:
(a) 
Must be in writing.
Must be executed like a real estate deed
ready for recording.
Execute trust according to 7-1.17.
Must be executed prior to or
contemporaneously with the will.
Trust is named in the will.
(b) 
Need not be done with the same formalities
as a will!
Any pour-over trust may be unfunded (it
becomes funded at death).
Revocation
3-4.1
Revocation of Wills;
Effect on Codicils
p. 51 of RB
(a)  except as otherwise provided in this
chapter, revocations are made only in the
following manner:
(a)(1)  wills and any part thereof (including
codicils) may be revoked or altered by
Page 21 of 32
Subsequent Instrument:
Partial revocation is allowed by subsequent
instrument in NY!
Wolfe’s Will (NC-1923)  first try to read
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Even though the
attestation clause is
not a necessary part
of the will, as long as
you write over ANY
WRITTEN PART of
the will, it is
cancelled!
3-2.2
Oral and Holographic
Wills
p. 37 of RB
Rule
Cases
subsequent instrument. This includes (A)
another will or (B) a writing of the testator with
testator’s intent to revoke and executed with the
formalities of 3-2.1.
(a)(2)  a will (not a codicil) may be revoked by
physical act. This includes (A) burning, tearing,
cutting, cancellation, obliteration, or other
mutilation or destruction. Such act must be
performed by: (i) the testator; (ii) another person
in the presence of and by the direction of the
testator, with two witnesses who do not perform
the physical act of revocation.
(b)  to revoke a holographic or oral will (see
also 3-2.2).
(c)  the revocation of a will revokes all
codicils.
two wills together to the extent they are
consistent. If two wills are so inconsistent
that they cannot stand together as one
document, the first will is revoked by the
second. (p. 345 of CB)
(a)(1)  nuncaptive wills are unwritten (oral)
wills with two witnesses.
(a)(2)  holographic wills are written wills that
are NOT executed pursuant to 3-2.1
---
Such wills are only valid if made by:
(b)(1)  a member of the armed forces engaged
in conflict.
(b)(2)  a person who serves with or
accompanies an armed force engaged in conflict.
(b)(3)  a mariner at sea
A will under this section is invalid if:
(c)(1)  made by a member of the army who is
Page 22 of 32
Physical Act:
No partial revocation by physical act in NY!
Henson-Hammer (OR-1989)  evidence
can overcome the presumption of
revocation where decedent’s original will is
lost. (p. 338 of CB)
Lavigne  if testator crosses out each and
every bequest in her will, it is a
cancellation. (p. 51 of RB)
NYS  can do anything you want to a
photocopy of the will, it is still good.
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discharged, and one year within that discharge.
(c)(2)  made by a person who serves with or
accompanies armed forces who is discharged,
and one year within that discharge.
(c)(3)  made by a mariner at sea, three years
within that date when made.
(d)  testamentary capacity of person making
such a will under (c).
5-1.3
Revocatory Effect of
Marriage after Execution
of Will
p. 94 of RB
(a)  if a testator executes a will and later gets
married, T’s surviving spouse is entitled to her
intestate share, UNLESS provision was made for
the surviving spouse by antenuptial agreement in
writing.
(b)  the surviving spouse’s share is deducted
ratably from the shares of the other beneficiaries,
regardless of what type of disposition they
received.
(c)  the surviving spouse has the option to take
dispositions left to her by will, rather than her
intestate share.
Note: if you are single and create a will,
leaving all of your estate to a charity, but
later marry and do not change your will,
your will is NOT revoked in NYS. Instead,
the spouse can elect under 5-1.1-A and the
rest will pass to the charity. In some states,
the will would be revoked and pass through
intestacy. (see p. 285 of CB)
5-1.4
Revocation by Divorce
p. 96 of RB
Unless the will expressly says otherwise, all
dispositions to a former spouse are revoked if the
couple divorces, or if the marriage is declared
void, or if the marriage is dissolved on the
ground of absence.
This includes nominations of the former spouse
and appointments of power in the former
spouse’s favor. The exception is that the former
spouse, if appointing as guardian, can keep such
appt.
The former spouse is treated as having
predeceased the testator, so the disposition
---
Page 23 of 32
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passes to the alternative beneficiaries.
The entire will is NOT revoked, just the
disposition to the spouse!
Remarriage  if the spouses remarry, the
provisions revoked solely by this section are
revived. (If testator tore up his will or executed
a new will revoking earlier wills, then the
provisions are NOT revived by remarriage).
3-4.3
Revocatory Effect
(Ademption)
p. 53 of RB
If decedent makes a specific disposition of
property and then does some act wholly
inconsistent with the disposition, it adeems
under this section.
Ademption by extinction  if you do something
wholly inconsistent to property that you have in
your will (you can no longer devise Blackacre
because you sold it), then it is adeemed and the
provision in the will is revoked.
Ademption by satisfaction  this is like an
advancement, where you devise property in your
will, but give it to the person before you die. In
order for it to be satisfied as an advancement,
there must be a contemporaneous writing (per 21.5).
Exceptions to Ademption:
1. Casualty insurance proceeds to the
extent paid after death are taken by
beneficiary
2. Executory contract not fully performed:
Page 24 of 32
Maruccia  whenever parties are legally
separated or divorced, the client’s will
should be amended to reflect the changed
circumstances. For a separation agreement
to abrogate will bequests, it will have to say
so specifically. In your separation
agreement, you must be explicit enough if
you want to waive your spouse’s rights
under right of election and the family
exemption statute. If you separate from
your spouse, change your will! (p. 203 of
Supp and 55 of RB)
McGee (RI-1980)  ademption is
applicable only to specific devises and
bequests rather than general testamentary
gifts. A gift is a specific bequest where it
specifically describes stock, and it is
adeemed. (p. 274 of CB)
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beneficiary gets proceeds paid after
death
3. Sale by guardian of specifically
bequeathed property
See p. 28 of barbri review
SCPA § 1407
Proof of Lost or
Destroyed Will
p. 850 of RB
A LOST OR DESTROYED WILL MAY BE
ADMITTED TO PROBATE ONLY IF:
1. It is established that the will has not been
revoked; and
2. Execution of the will is proved under 3-2.1;
and
3. All of the provisions of the will are clearly
and distinctly proved by each of at least two
credible witnesses or by a copy or draft of the
will proved to be true and complete.
A lost will is presumed to be revoked!
If T was the last person to possess the will,
then it is presumed T destroyed it with the
intention to revoke it.
If T was NOT the last person to possess the
will, then it is NOT presumed revoked.
See Henson-Hammer (p. 338 of CB and
above under revocation).
3-4.6
Revival Statute
p. 56 of RB
NO REVIVAL OF PRIOR WILLS:
(a)  if a later will is revoked, or a later will
alters a previous will, a revocation of the later
will does NOT revive prior will or an provision
in the prior will.
Common Law  revival of earlier will is
okay, because a will does not operate until
death. If a will does not operate until death,
then revoking the second will means it
never operated and the first can kick back
in.
TO REVIVE:
(b)  revival is done by:
(b)(1)  executing a codicil that incorporates
the provision of the will by reference (also
common law approach).
(b)(2)  executing a writing according to 3-2.1.
(b)(3)  republication of the prior will, where
the entire execution process must be followed all
over again.
Page 25 of 32
Norton (NC-1991)  incorporation by
reference is allowed if (1) the document
referred to exists at the time the will is
properly executed; and (2) the reference
must be clear and distinct to the document
itself to provide full assurance that the
document is to be incorporated. (p. 244 of
CB).
Clark (MA-1991)  incorporation by
reference is allowed if (1) the document
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Dependent Relative Revocation (DRR):
Common law doctrine of NY  “2nd Best Rule”
Steps to Follow (see p. 84 of my notes):
1st  ask if there was a mistake (a mistaken
belief was depended upon as to the validity of
another disposition).
2nd  determine what T thought was going to
happen, and what actually happened, to figure
out if there was a mistake.
3rd  determine the interested parties.
Last  determine, on the basis of the
circumstances, what T would have preferred.
DRR should never be applied unless the
disposition that results from disregarding the
revocation comes closer to doing what the
testator tried (but failed) to do than an intestate
distribution. Cannot defeat T’s intent – if T
really doesn’t want someone to inherit, but that
person would inherit through intestacy, then
DRR should be applied to prevent intestate
succession.
DRR notes (see p. 9 of barbri review)
existed at the time of the will’s execution;
and (2) it is identified by clear and
satisfactory proof as the paper referred to.
(p. 251 of CB)
Incorporation by Reference  not
allowed in NYS! (see p. 24 of barbri rvw)
Note: the only exception to this rule is for
“pourover” gifts made by will to a lifetime
trust.
Common law  doc can be incorporated by
reference if (1) the doc existed when the
will was signed; (2) the will shows an intent
to incorporate the doc’s terms; and (3) the
doc is clearly identified by language in the
will.
NYS  no-contest clauses are fully enforceable
regardless of whether the contest was filed with
probable cause. A testator should be permitted
to protect his testamentary plan, and his
reputation, against post-death attack.
Exceptions:
(b)(1)  if the Surrogate finds there was
probable cause for a contest involving forgery or
revocation by a later will, the ITC is not
invoked. (this does not include revocation by
p. 41 of barbri review
Carter (GA-1980)  dependent relative
revocation. (p. 354 of CB)
Contesting the Will
3-3.5
In Terrorem Clauses
(No-Contest Clauses)
p. 43 of RB
Page 26 of 32
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physical act!)
(b)(2)  an infant may contest without losing
benefits (this includes a situation where an
infant’s guardian contests on his/her behalf – this
is okay).
(b)(3)  the beneficiary may do things without
invoking the in terrorem clause:
(b)(3)(A)  you can object to jurisdiction.
(b)(3)(B)  you may tell the court or another
party any info relevant to the probate of the will.
(b)(3)(C)  you can refuse to join in the probate
petition or to waive service of a citation.
(b)(3)(D)  you can preliminarily examine
witnesses, the will preparer, the nominated
executor(s), and the will proponents under 1404.
(b)(3)(E)  you can commence a construction
proceeding to construe the terms of the will (not
a challenge, just a request to know what the
interests are).
SCPA § 1402
Who may Propound Will;
Contents of Petition;
Direction of Court
p. 841 of RB
1402  grants status to petition for the probate
of a will.
People granted such status are:
Any person designated in the will
A creditor
A person entitled to letters of administration
Any party to an action where D would have been
a party
Public Administrator or County Treasurer
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SCPA § 1403
Persons to be Served;
Content of Process
p. 842 of RB
1403  process must issue to the following:
Distributees of T
Executor
Any person designated in the will who would be
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adversely affected by any other instrument
offered for probate.
Any person designated in any other will of the T
on file with Surrogate’s Court who would be
adversely affected (this is why 2507 could be a
bad thing – wills on file with Court).
SCPA § 1404
Witnesses to be
Examined; Proof
Required
p. 854 of RB
At least two of the attesting witnesses must be
examined before the court before admitting a
will to probate.
A person named in an in terrorem clause CAN
question witnesses.
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SCPA § 1405
When Court may
Dispense With Testimony
of Witness
p. 848 of RB
Attesting witnesses need not testify if:
They are dead
They are absent from the state
They are incompetent
They are physically or mentally unable to testify
---
Must show due diligence that witness cannot
testify by an affidavit or competent evidence.
Forgetful witness  must have one other
witness testify.
Both witnesses are unable to testify  must
prove the handwriting of the testator and at least
one witness in order to admit will to probate.
SCPA § 1406
Proof of Will by Affidavit
of Attesting Witness Out
of Court
p. 849 of RB
See above!
See Ranney.
SCPA § 1407
Lost Wills
p. 850 of RB
See above!
See Herman-Hammer
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SCPA § 1408
Probate Not Allowed
Unless Court Satisfied
p. 851 of RB
The judge has the duty to inquire into all facts
and circumstances surrounding the genuineness
of the will. (“Take the Judge to Lunch”
Provision)
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SCPA § 1409
Notice of Probate
p. 852 of RB
Before letters are issued (and the executor takes
control of the estate), notice must be given to all
parties interested in the estate.
The purpose of this statute is to protect against
the executor.
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SCPA § 1410
Standing to File
Objections to Probate of
an Alleged Will
p. 854 of RB
A person has standing to contest the will if they
would be adversely affected by offering it for
probate.
A fiduciary nominated in an earlier will but not
in the will offered for probate whose only gripe
is lost commissions does not have standing to
object unless good cause is shown.
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SCPA § 1411
Citation Upon Filing of
Objections
p. 856 of RB
When someone files objections against a will,
this statute is triggered and parties in the will
must be given notice. The purpose is to provide
due process of law.
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SCPA § 502
Trial by Jury; Waiver or
Withdrawal
p. 766 of RB
A will probate contest may be tried before a jury.
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SCPA § 2507
Reception of Wills for
Safekeeping
p. 1005 of RB
Permitted to file wills and affidavits of attesting
witnesses with Surrogate’s Court. This is a
safeguard against loss.
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If you are over 18 and of sound mind and
memory, you may dispose of real and personal
property by will and exercise a power to appoint
such property.
Testamentary Capacity
T must sufficient capacity to understand:
1. The scope and meaning of the
provisions of his will; and
2. The nature, extent, and condition
Grounds for Contesting the Will and Mistake
3-1.1
Who May Make Wills,
and Exercise
Testamentary Powers of
Appt Over Property
p. 32 of RB
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of his property; and
His relation to the persons who
ordinarily would be the natural
objects of his bounty.
Proponent bears the burden!
3.
Undue Influence
To be undue, the influence exerted must:
Amount to mental coercion which induced
the testator to carry out the wishes of
another, instead of his own wishes, because
the testator was unable to refuse or too
weak to resist.
Contestant bears the burden!
Fraud
To make a showing of fraud, must find there
was:
1. A false statement
2. Known to be false
3. Relied upon by the testator
4. Done with the purpose to defraud
Contestant bears the burden!
Mistake  no statutes on mistake. Look at attachment to Supplement dated April 8 th.
Two Types of Mistake:
Patent  ambiguity that IS apparent on the face of the document. Courts do not like to fix these types of mistakes.
Latent  ambiguity does NOT appear on the face of the document. Courts are more amenable to fixing these types of mistakes.
Gifford v. Dyer (RI-1852)  the mistake must appear on the face of the will, and it must also appear what would have been the will of the testatrix but for the
mistake (don’t even try to get relief unless the mistake is clearly on the face of the will). (p. 331 of CB)
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Patrick  mistake is NOT grounds to contest a will. A will is probated when it is clear and there is no mistake on the face of it. (attached handout to Supp)
Snide  when identical mutual wills are both simultaneously executed with statutory formalities, but the parties accidentally sign the wrong will (H & W sign
opposite wills), then there is a genuine mistake that should be fixed. The genuine mistake should NOT prevent the will from being probated. (attached handout to
Supp)
Marine  where words in a will are plain and clear on their face, we do not go outside the will to clear up a mistake. Children means children, NOT
grandchildren. (p. 304 of CB)
Carroll  “To my nephews” does not mean “to my and my wife’s nephews.” (p. 312 of CB)
Britt  testator’s declarations are not admitted to evidence when related to testamentary intent. They are only admitted when used to clarify latent ambiguities.
(p. 324 of CB)
Knupp  a court will not fill in the blanks on a will. (p. 332 of CB)
Gibbs  latent ambiguities are common with language relating to details of identification, such as middle initials, street addresses, etc., and courts should receive
evidence tending to show that a mistake has been made and should disregard the details when the proof establishes to the highest degree of certainty that a mistake
was, in fact, made. (p. 318 of CB)
Lapse
3-3.3
Anti-Lapse
p. 40 of RB
A gift lapses when the beneficiary of the gift
dies before the testator.
NYS  created the anti-lapse statute! The
statute applies UNLESS THE WILL SAYS
OTHERWISE.
The deceased beneficiary MUST be a brother,
sister or T’s issue, who leave issue surviving
the testator.
(a)(1)  prior to Sept. 1, 1992, the gift will not
lapse but pass per stirpes.
(a)(2)  after Sept. 1, 1992, the gift will not
lapse but pass by representation.
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(a)(3)  a class of issue, brothers, or sisters is
included in this statute, unless a member of the
class died before the will was executed
containing the disposition to the class.
(a)(4)  adopted children and their issue and
non-marital children and their issue are included
(if they pass statutory reqs set by 2-1.3, 117(2),
4-1.2).
3-3.4
Reside of a Residue
p. 42 of RB
Because of the presumption that a testator does
not wish to die intestate, this statute was passed
to provide that when a portion of the residuary
estate cannot pass to the intended beneficiary, it
would pass to the other residuary beneficiaries
proportionately.
This statute only applies when the failure of part
of the residuary occurs as of the date of the
decedent’s death.
Contingent remainder interests are NOT within
the scope of this statute (see p. 43 of RB)
Page 32 of 32
See p. 43 of RB for situations!
If residuary fails because:
Beneficiary (a sibling or issue of T) has
predeceased, leaving issue, then such issue
will take that beneficiary’s share.
Beneficiary (not issue of T) has
predeceased, or beneficiary (issue of T) has
no issue left, then beneficiary’s share passes
proportionately to the other residuary
beneficiaries.
Beneficiary murdered testator, then
beneficiary will not take.