I.
A.
February 3, 2004
1.
Default rules . We will focus on NY State law, and in the event that there is no state law, we look at common law. Estates and Trusts Law is not as statutorily driven as Tax Law.
II.
A.
Intestate Succession
EPTL § 4-1.1

intestate succession. Deals with property not disposed of by will when a person dies. This means property not governable by will

In a broad sense, probate is the administering of a descendent’s estate

In a narrow sense, probate means to prove the document is the valid will.

Nonprobate means administering assets other than by will or intestate succession. o The asset is governed by contractual arrangement
(e.g. Life Ins.) or controlled by the property arrangement (e.g. JT)
Identify the property that is governable by the instrument. This is the probate estate . When someone dies, a will must be probated. It goes through a proceeding. “The probate estate” – ask: is this property governable by will?
Decide intestate succession according to EPTL 4-1.1
.
B.
Harry’s Will (page 1 of Supplement)
1.
Painting  Hilda doesn’t have to worry about the painting. Who will get the painting? Think about: intention; delivery; and acceptance. The most difficult is intention . If you have a present transfer of an irrevocable interest, whether possessory or future, this removes the property transferred from probate estate it would otherwise be in.

Gruen v. Gruen (p. 46 of CB): son received two letters regarding a painting from his father. The second letter told him to destroy
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the first letter. The first letter said happy birthday, the painting is yours, but I want to keep it in my apartment. The second letter said the painting is yours (but nothing about keeping it in the apartment). The man’s lawyer and accountant told him to send the second letter so he wouldn’t have to pay a tax on the gift. If he gives away property and retains a life estate, then his estate will pay a tax on it. Mr. Gruen was told that if the IRS hears about the first letter, they will say he has a retained life estate and the son will have to pay tax on the painting. So he sent the second letter.
This was bad advice. The IRS will find out and say that the father and son had an agreement, and they will impute a life estate and it will still be taxed anyway. Destroying the letter won’t make a difference. Telling your client to do this could warrant disbarment! This case is about whether there was an effective gift of the painting during the life of Mr. Gruen so that the painting is not in any estate. It is classified as “other.” If it is “other,” then it is not covered by the will.

Donative Intent

there must be intent to make a present transfer.
See page 48. Mr. Gruen did not intend that the son was to receive the painting now, he just intended that the son receive the painting upon his death. Is the question whether the father wanted to make a present transfer, or a present interest?

Present vs. Future Interest

present interest example (you can use my driveway now). Future interest example (you can use the painting later). So, the question from Gruen is not about transferring a present interest. It is about transferring a life estate.
The question is about whether he wanted to transfer a future interest! He had a present intention to transfer a future interest.
What makes this different from what the defendant is saying: that this is not a present transfer of any interest in the painting, but it is an invalid attempt to transfer it at death. The second letter in
Gruen is really an irrevocable transfer. Basically, the concept from Gruen is: 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 the power to revoke it.
You cannot do this without a will! A will is all about transferring stuff at death. If the transfer takes place at death, you need a will.
2.
Life Insurance  is the $100,000 life insurance in the probate estate?
The policy is really revocable, but in this case, it will be irrevocable. If you follow Gruen: Harry has made an irrevocable transfer. Will Hilda and the kids get the money, or will George Washington? The ability to revoke is important, according to Gruen. In this example, Harry does not retain the ability to revoke. Hilda and kids get the policy! However, the
$20,000 can go to George Washington, because it is still part of Harry’s probate estate. Anything that is part of the probate estate goes to George
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Washington! Hilda gets the money because historically, this is what happens. No one is going to make different rules apply (painting rules, etc.). Cannot really give a good explanation for why Hilda gets the life insurance policy. Note: the fact that Harry can change his life insurance policy really makes it part of the estate, but it won’t be considered as such.
Instead, the probate estate will be governed by this contract.
IMPORTANT: if the will has changed the beneficiary of the life insurance policy, then it will go to whomever he names in the will!

McCarthy

a general testamentary provision in a will does NOT revoke the policy. In order to change a 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).

If you are specific enough, your policy can be revoked.
3.
The Family Residence

tenancy by the entirety held by Harry and
Hilda. The FMV is $80,000. The unpaid mortgage is $30,000. Is the house governable by the will? NO – since it is a tenancy by the entirety, then it passes in its entirety to the other person. The tenancy cannot be destroyed, even if a creditor can get at your interest (it slips through the creditor’s hands and goes straight to the other tenant).

If this was a joint tenancy, then what?
It would STILL go to the joint tenant, not to George Washington! You can alienate your own half, creating a tenancy in common. There is half revocability in a joint tenancy. But that half is still not governable by will.

Joint tenancy

this is an inter vivos property device that has right of survivorship. Can transfer your own half while alive, but can’t use your will to distribute your half.

Tenancy in Common

if Harry transferred his half of the joint tenancy to George while he was alive, thereby creating a tenancy in common, then what would happen? The right of partition could be used by George to get Hilda to sell so he can take his share.
4.
Bank Account (held solely by Harry)

property in his own name.
There are no strings attached. So this is probate property! It will go to
George Washington. BUT: George Washington only gets $10,000!

SEE ALSO § 5-3.1(a)  exemption for benefit of family. It exempts certain property (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. HILDA WILL TAKE $15,000! Under this section, Hilda has protection.
5.
Joint Bank Account w/Harry’s Daughter 
there is a balance of
$10,000 in the account. Right before he died, Harry took out a large sum
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of money (it was at $18,000, and he took out $8,000). Who gets the money? This is sort of like the house example. This is a joint tenancy.
 § 675 of the Banking Law 
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. This statute brings in the concept of the joint tenancy. Even though it is half revocable, it is half irrevocable.

George Washington and Hilda LOSE. Harry’s daughter
WINS.

Brezinski

the mother signed the signature card for her and her son. Her son takes some of the money out. They gave her back all of the money. If it is a joint tenancy, then how could she get back all the money? Look at § 675(a) – if you sign the signature card, the property becomes property in a joint tenancy. But look at §
675(b) – there must be prima facie evidence to create a joint tenancy. Justice Cardozo says that there is a rebuttal presumption of a joint tenancy, so § 675(b) wins! In order to show that it was
NOT a joint tenancy, show that it was for the convenience of the depositor! In this case, Mrs. Brezinski was old and sick, and didn’t really speak English. She set up the account because she wanted someone to help her pay her bills, she didn’t intend to give her son half of the property – not while she was alive, nor when she died.
The only reason she had her son on there was for her benefit. So therefore, when the Court weighed the evidence, the Court decided that the account was not really a joint tenancy.

Note on Brezinski

most of the time, in a situation like this,
Mrs. Brezinski would NOT have won! This is because the son would normally wait until his mother dies, and then he could take the money. It would be difficult to provide evidence on Mrs.
Brezinski’s behalf to show that the account was only set up for convenience, not because she wanted a joint account with her son.
However, this did not happen here – she never intended the account to be a joint tenancy, and Henry took the money before his mother died.

Dead Man’s Statute

she cannot testify with respect to conversations with the decedent because she stands to benefit! The
Dead Man’s Statute is the reason why most of the time, in a situation like this, Mrs. Brezinski would lose. Ultimately in cases like this, her wishes will not be fulfilled. This is because she went into the bank and they gave her something she didn’t want – they gave her a joint account, but she really wanted a convenience account!
 § 678 of the Banking Law 
if this is an account for the
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convenience of the depositor, then it does not create a joint tenancy or a right of survivorship. It is in the probate estate of the person putting the money in! Convenience only. This section is rarely used. Why? Banks are afraid that their employees will screw up the explanation and make them liable.

Why not get a Power of Attorney?
Banks are notorious for giving people problems with powers of attorney. A power of attorney only lasts as long as the person who gave it is alive. So it would be hard for the bank to know if and when Mrs. Brezinski died.

Problem
: even if you have a joint account under §675, will the
$10,000 go to Doris – is the money still in joint tenancy? Or has the withdrawal of $8,000 destroyed the joint tenancy?

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.

In Lang, the respondent took too much money out of a joint account held with the decedent. The Court ruled that she took more than her share out of the account, and had to return it. The respondent has the right to no more than her moiety and the withdrawn funds upon being removed from the account without the consent of the joint tenant, were no longer subject to the right of survivorship.

What if Harry took out more than his moiety?
It works both ways! Harry would owe Doris the money. However, in our situation, what is the effect of Lang? Lang says you have a right to take up to one-half. Logic says that if Harry takes out $8,000 and dies, the remainder would be divided fairly because he took out that money. However, this is not what happens. Harry took out the $8,000. Then Harry dies and Doris would get the full $10,000.
If she had died first, then he gets the remaining $10,000. This does not seem fair!

RULE : if you don’t take out more than your moiety, you are entitled to keep it, and right of survivorship follows with whatever is left in the account.
6.
Totten Trust Bank Account

a Totten Trust is a testamentary substitute that permits the depositor to retain full control of money during his lifetime and to pass it, outside of probate, to the named beneficiary at death. It is a bank account deposit, and the signature card says “in trust for” (“A in trust for B”). In the Matter of Totten 
this means that A can revoke the account. But if A does not revoke the account, then it goes to
B.

Harry has a Totten Trust set up for Hilda. The balance in the
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account at Harry’s death is $40,000.

EPTL § 7-5.1

Totten Trusts. What kinds of things make Totten
Trusts irrevocable?
 EPTL § 7-5.2

During lifetime, there are only certain ways to revoke the Totten
Trust: by withdrawal or by writing which specifically names the beneficiary and the financial institution.

It allows a person to govern a Totten Trust by will. This is the only non-probate device governable by will!
 If there is no will, it will not pass under § 4-1.1.
7.
Securities Owned by Harry in his own Name  this is probate! It will all go to George Washington. § 5-3.1 does NOT apply. We already took $15,000 out of the bank account. If there was NO bank account, then we would have to take $15,000 out of the securities for Hilda. But Hilda does not get any of the securities! George gets the $50,000 in securities!
8.
Death Benefit under Employer’s Pension Plan (Payable to Hilda)

a typical pension is one that says something like when you are retired, you get paid a certain amount of money, money which you cannot take out until after you retire. Usually you have to take it out before you are 70. If you die before you take the money out, then there is a death benefit. The person has a right to designate a person to receive the death benefit.

This is like the life insurance. Even though the person can get his hands on this money right now (he would just have to pay taxes if he took it out before he retires, for example), we lie about it – it is not a part of the estate. It is outside the probate estate!

Can the designation be revoked or redirected by will?

Trigoboff

decided prior to McCarthy and Aetna. The company is required to strictly comply, but sometimes it can waive that compliance to the designation. Now the waiver stuff is ended.
The question of who gets the money is not supposed to be determined by the insurance company, it is supposed to be determined by some set of rules. The only thing the company should be able to do is insist upon the designation. McCarthy – it doesn’t make a difference what the insurance company does.

Freedman

decided after Trigoboff. Seems to read McCarthy as saying that if you are specific enough (as was the case in
Trigoboff), then it is okay.

TO KNOW : o Waiver stuff is out the window! o You can maybe modify a designation if you are specific
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enough!
9.
Trust Remainder in Harry’s Father’s Will 
the trust was set up by
Harry’s father. Harry’s father had a will in which he left property to a trustee. The TE is to pay Harry’s mother income for life. The remainder is to go to Harry. Subject to the benefits of ownership. You can do anything you want when setting up a trust, as long as it does not violate public policy. Harry died before his mother died. What happens to his remainder, which is worth $35,000? The remainder is worth more when left in trust. Let’s say the trust is worth $100,000 (look at actuarial tables to determine the value of the remainder – determine the value of Harry’s mother’s life estate. Her value is $65,000, his remainder is $35,000). The remainder represents property Harry holds in the probate estate. This particular remainder is a vested remainder.

Hypo: contingent remainder . Remainder to Harry if Harry survives his mother. Harry dies before his mother. Is Harry’s remainder part of the probate estate? NO!

Hypo: what if it is remainder to Harry, if during the mother’s lifetime, the Bills win the Superbowl?
And Harry dies before his mother. There is no requirement that Harry survive his mother. It is still a contingent remainder, but it is still in his probate estate. It may not be worth anything (wait and see if the Bills win the
Superbowl during his mother’s lifetime). The vesting is not important – what matter is if it is outside the probate estate.

$35,000 makes up an important part of the probate estate!
10.
Clothing, etc.

this goes under § 5-3.1, the exemption for family benefit. Most of the time, this will pass.
 § 5-3.1
 jewelry is not covered by this section!
11.
(9/19/2005) Automobile in Harry’s Name

also covered by § 5-
3.1.

The car is worth $20,000. She can either take the automobile or
$15,000 and give $5,000 to the probate estate (keep $15,000 because it is exempt under § 5-3.1).
12.
Who pays Harry’s funeral expenses, administration expenses, debts and taxes?
The amount is $30,000. It will be paid out of the probate estate.

Should the non-probate estate share their pro rata share of the costs/expenses? This could be litigated someday, it is unclear now.

Why only out of Probate estate? Why not out of Totten trusts (they’re indistinguishable from bank account in your own name-except statute permits their formation)? Answer:
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That’s just the way it is! Also, boilerplate language contained within most wills just customarily assigns payment to be made out of probate estate.
C.
Harry’s Problem Continued – Arguments for and against a restricted covenant
1.
If you are Hilda’s attorney  point to Pace. This type of activity is against public policy. When Harry left the money to George in the form of jewels to throw into the river, it is a waste! If there is no statute, is the public policy argument out the window (do you have to find a statute in order to argue that a will is against public policy?). Look also at the common law. Look at Shapira. When Daniel argued that his father was violating his constitutional right to marry, he argued that the common law public policy should be applied in his favor. In Pace, the public policy is against waste (“Infectious invalidity”—the notion that one section, if found invalid, will invalidate an interdependent different section of the contract/will. Didn’t happen in Pace). In Shapira, however, the public policy is the right to marry without coercion. The restraint on the sons in
Shapira is considered a partial restraint . Partial restraints are okay! (see below) Look at the common law as well as statutes to argue! Argue that throwing diamonds into the river are a waste and against public policy
(Pace). Economic harm!
2.
If you are George’s attorney 
can also argue public policy! Look at Beck case. What is the point of drafting a will if the testator’s wishes will not be respected? Say that meeting the testator’s wishes meets public policy.
“Bad” George 
would argue that it’s right, throwing the money into the river is a waste. So let him keep the money and NOT throw it into the river!

What would Hilda say to this argument? You cannot let George keep the money because that is not what the testator would want.
The testator was using George only as a tool. He had no intention of giving George a beneficial interest.
 “Bad” George does not get to keep the money. He is not supposed to have it!

Did not enforce the covenant in Pace! This is because it was “part and parcel” of the testator’s design. The covenant was inseparable.
It has to be ignored, not because it is illegal, but because the testator would not want to have it enforced if the house was not allowed to be destroyed. Focused on the testator’s intent.
“Good” George 
Beck

what distinguishes Beck from Pace? The City wanted to tear the house down to begin with, a number of years back. So Mattina decided in favor of Beck.
Cy pres doctrine

if you can’t do something specifically, you can accomplish the general intent by a more palatable methodology. (Could
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try to use this doctrine if you are George, and argue that the money should be used to buy billboards, not diamonds to be thrown into the river).
3.
If you are Hilda’s attorney 
Find the provision that knocks cy pres out.
Hilda will say it is a waste! She will object to the cy pres notion. She will argue that in order for the doctrine to apply, the gift must be to a charitable organization and it is not. But her strongest argument is that the testator’s general intent is not being served! Harry wouldn’t want it – he said (about throwing jewels into the river) that “it is the only way to wake people up.” Her last argument is that the court will decide that wishes cannot be carried out specifically, because the cy pres argument will not be in furtherance of his wishes. If court goes this way, then the probate estate is handled by EPTL 4-1.1. Hilda may want to consider though, that the cost of hiring an attorney to fight this case might not be worth the $80,000 in the probate estate that she is not even guaranteed to win.
4. Walker: where is this source of public policy a/g waste? (i.e. this isn’t marrying a Jewish girl or else. There is no infringement on religious freedom/freedom of association). How is this harming the general public by throwing the gems away?
It’s a common law doctrine: No Economic
Clubs or Threats!!
But we saw in Shapira: court noted there was only a partial restraint . These will be upheld.
Walker held that public policy comes from the laws of the state.
“The spirit of the common law.”

Harm is a subjective forum: harm to whom? And who is to say it is harmful at all? Joyce says you have to argue it as a lawyer. o Fallback: this is just a waste, and the wasteful aspects outweigh the policy argument. What is the intent, the “ultimate intent”? (see above: cy pres!)
5. If that portion of the will that bequeaths assets to George is found to be wasteful and invalid, then that portion of the estate will go to probate and will be deemed intestate. It will then fall under the purview of 4-1.1.
D.
Next part of the Harry Problem: EPTL 4-1.1
1.
Who takes what share of Harry’s estate on the above facts?

Hilda gets $110,000 ($50,000 plus ½ residue: $170,000-
50,000=120,000/2=$60,000 + $50,000=110,000). His issue gets the rest.

Be careful about falling into the equitable distribution thoughts…that is for divorce, not death! Title is determinative in death. Who has title can will things away.
Spouses rights are different in this arena.
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 It will go to Harry’s children – Tina, Doris and John.

Since Tina is underage, when she takes her share, she needs to have a guardian appointed and a bond. Actually, there is a provision that says if it is less than $10,000, then they can give
Tina’s money to Hilda (it is still Tina’s money, but Hilda takes care of it). If over $10,000, then the money stays in Surrogate’s
Court. Tina is too young right now (16 years old) to just take her share.
 Harry’s grandkids will not take because their parents are still alive.
Ex: James would take by representation, but John is alive, so
James does not take anything.
 § 4.-1.1(a) 
why was this statute created? Why should spouse get $50,000 plus ½? Suppose Harry wanted to leave everything to
Hilda. Harry can say what Hilda is going to get, and the statute says what Hilda will get if Harry doesn’t have a will. This statute is written the way it is b/c it is assumed that this is the way people will divide their estate up in this way. It is a “default” statute!
This statute has to do with what a person would do with their money.
2.
Who would take what if only his wife, Hilda, and his mother,
Mom, survived? (9/21/2005)
 § 4-1.1(a)(2) 
Hilda gets everything! She doesn’t have to share with anyone else, there are no other collateral issue. If there is a spouse and no issue, she gets it ALL.
3.
If everyone survived except Hilda:
 § 4-1.1(a)(3)  the whole goes to the issue by representation. Just
Harry’s three kids take. The whole $80,000 goes to the three children, Tina, Doris and John. The grandkids do not take if their parents are alive: “by representation.”

Note : if Hilda doesn’t survive, then the property from the exemption under § 5-3.1, then that property goes to the kids too.
4.
If everyone survived except Doris:
 Hilda still gets her 50 + ½.
 The rest is divided between Harry’s issue by representation. So since Doris is not alive, her two children share what she would have taken. Eve and Ed split Doris’ share. John and Tina get the other thirds.
5.
If only sister Lucy and Mom survived:
 § 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. So Harry’s mom
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takes all; Lucy gets nothing!

Is this a good thing? For tax purposes, not really.
6.
If only Uncle Joe and nephew Lenny survived:

See page 79 of casebook – Table of Consanguinity !

Uncle Joe is a 3 on this chart.

Lenny is a 3 on this chart (Lenny is a nephew).
 This means they both take equally. This statute deals with § 4-
1.1(a)(5). “Brothers and sisters and their issue.” This statute gives preference to his closest collateral, and then any of his issue.
Degree doesn’t matter.

??

Uncle Joe is the maternal uncle of Harry. Lenny is the nephew.
7.
If only Dave and Kevin survived:
 Dave is Harry’s uncle. Kevin is Harry’s son-in-law.

Dave still gets everything. Two reasons: (1) because Kevin is not in the statute; (2) because you can find Dave in the statute.

Kevin is not in the statute because he is not related to Harry by blood. The only one that takes that is not related to Harry by blood is Hilda – she takes by affinity (by marriage).
 How does Dave take? § 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 goes to the maternal grandparent’s side, and the other half to the paternal grandparent’s side. If there aren’t any grandparents, then it goes to the issue of grandparents.
 “Issue of grandparents” = only means grandchildren of the grandparents!
 Dave is a first cousin of Harry’s parents, b/c he is a grandchild of a grandparent. So he takes!

Why is the estate split in half between maternal and paternal grandparents’ sides? Determinative factor 
there is a problem of proof. In order to determine whether Dave will take, Dave has got to prove that all the people who are taking before him did not survive. This may involve proving that Harry never had any kids or was never married. So therefore, there is a proceeding to show all of this. So Dave takes if he can prove it. He will take at least one half. But he could also take the second half – he also has to prove that no one survived Harry on the other side of the family!
 What if Dave does not survive, but only Dave’s child, Dan, and
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Kevin (the son-in-law)? Dan cannot take anything under § 4-
1.1(a)(6). Dan is a great-grandchild of grandparents, so he cannot take. BUT, in that situation, if Dan is the only one surviving, then
Dan can take under § 4-1.1(a)(7)! If Dan is dead, and Dan has a daughter, Dawn, then Dawn cannot take! The property will escheat to the State of New York. Same thing if Harry was survived only by a great-grandparent – it will NOT go to the greatgrandparent in NYS!
8.
If only Dave and Aunt Sarah survived:
 This is just like #7. Except that it shows one other aspect of § 4-
1.1(a)(6)

it applies to grandparents and issue of grandparents by representation. Sarah is paternal aunt. Dave is 1 st
cousin. Sarah is a 3. Dave is a 4. However, the chart is irrelevant because the statute says that first cousins can take by representation. Dave takes Joe’s share. Dave takes half, and Sarah takes half. This would STILL be true even if they were on the same side (both maternal, for example). However, in this hypo, they are each on separate sides (paternal and maternal).

Note: 4-1.1(a)(6) limits this line to grandparents and issue of grandparents. That’s it: ends at 1 st cousins.

Why estate split in half? UPC does it because they feel that is what most people would do. NYS does it for more practical reasons: kinship proceedings. A lot of work for a
“next-of-kin” to prove that he/she is entitled to more of the estate. Prove the whole family relations. Thus, split it in half because Joe likely knows maternal side, and Lenny likely knows the paternal side. Keeps money moving to the next-of-kin instead of accumulating in the courts until a whole genealogy tree can be made out: all the kin have to do is prove their half.

4-1.1(a)(7) takes it down one more step from 4-1.1(a)(6): to the great grandchildren of grandparents (“first cousins once removed”). Have to go through 4-1.1(a)(6) first.
 First cousins twice removed are off the chart: great-great grandchildren of grandparents. Assets then escheat to the state.
9.
Suppose in #8 that Harry’s will contained the following additional provision, “Under no circumstances is any of my estate to go to any of my relatives.”
 EPTL § 1-2.19

defines a WILL. With a will, you can direct not only how property SHALL be disposed of, but also how property shall NOT be disposed of! Hilda will argue § 4-1.1, and say that if he does not dispose of property, she will take (Harry didn’t say who the property was to go to).

In New York

if you want to dispose of property in a certain
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manner, then you must have a will. You must state affirmatively where the property is going, OR ELSE IT WILL PASS BY 4-1.1.
So, unless Harry specifies (by writing a will), then Hilda will take under §4-1.1.

Since Harry has this provision in his will, then Hilda will NOT take and the State of New York takes!

Hilda would still be able to take in all other states EXCEPT New
York! Cannot disinherit by fiat! You must give your property to someone-but in NYS that isn’t true. Legislatively overruled negative disposition.
 What if everyone survives, and the will only says “John gets nothing.” What then? 4-1.1(a) is in control. 1-2.19 permits the will to oust John from the estate.
E.
“Per Stirpes” and “By Representation” Sept. 26, 2005
1.
EPTL § 1-2.14

Per Stirpes

Modern Per Stirpes: the default IF designated by the testator in the instrument
2.
EPTL § 1-2.16

By Representation (default since 1992 if intestacy)

NYS changed to by representation because it is generally understood that people want their children/grandchildren to share equally. Want to ensure that everyone on the same level takes the same. (All grandchildren should share equally).

What if will created before 1992? Default is per stirpes.

Example 4 on page 84 of casebook:

See chart on page 55 of supplement.

UPC

questions to ask: o How many people are alive at the level you are dividing at? o How many people are alive in lines that have not died out? o Divide into fourths. Then take one share and give it to the person alive at the head of the line. Combine the remaining shares (3/4) and start all over again. But since you took care of
C, you don’t need to take care of I/J/K.

Martineau and Shumavon o See page 48 of supplement! o 4-1.1(a)(6)

divide into halves. Half goes to each side of the family (half to maternal and half to paternal grandparents). If grandparents are dead, it goes to their issue. The issue of grandparents means their children and grandchildren – not
Page 13 of 102

great-grandchildren! The only people that can take by representation are first cousins. Aunts and uncles take in their own right. o Shumavon

first cousins once removed do NOT take unless everyone else is dead!
F.
NY Domestic Rel. § 117, EPTL § 4-1.2 and DR § 73
Page 3 of supplement, problem on bottom of page.
D, the decedent, is survived by the following persons only :

Dan

Joan

Sally
1.
Who is entitled to what share of D’s estate ? (see page 4 of Supp)

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 a son until D died. o Dan is out under 4-1.1.

Joan – Joan is the non-marital daughter of D’s deceased half-uncle
Jeremiah. Jeremiah never acknowledged paternity of Joan; nor was there a filiation order entered during Joan’s lifetime. o Get rid of the half-uncle business. See 4-1.1(b) – whole or halfblood is irrelevant. What is the relevance of the nonmarital status? To get to 4-1.1, we have to see 4-1.2! o EPTL § 4-1.2

says nonmarital portion of Joan is irrelevant if taking through her mother. But since Joan is related to the decedent through a male (Jeremiah), then we have problems. o Look though 4-1.2(a)(2)(A-D) to see if she fits… this is OK because the state has an overriding interest here, and this statute goes to PROOF. o EPTL § 4-1.2(a)(2)(A-D)  there must be a filiation order; an acknowledgement; or some of the other facts listed under 4-
1.2(a)(2)(A-D)!

Sally – Sally is D’s natural daughter who was adopted by halfuncle Jeremiah. o § 117 of the DRL 
deals with the effect of adoption. See page 58 of the supplement. o Must see what the situation is with Sally and Jeremiah. o There is a cut-off of the intestacy rights : § 117-1(a) and (b).
Any time a person is adopted, they are adopted “out” and
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adopted “in.” Sally is part of Jeremiah’s family by adoption.
Jeremiah is an uncle of the decedent, so looking at Sally through the eyes of Jeremiah’s family (in her adoptive relationship), she is an adoptive first cousin, that is enough to satisfy § 4-1.1(a)(6). Bottom line: Sally is not the daughter, but she gets everything anyway as an adoptive first cousin. The key: she wasn’t fighting with anyone over the estate!
2.
Joan is the non-marital daughter of D’s half-aunt, Jerry . Who is entitled to what share of D’s estate now?

This just means that Joan is a natural first cousin! Sally is an adoptive first cousin.
 § 117-1(e) 
if it is an in-family adoption, Sally will be treated as a member of both families. She is a member of the adoptive family (the new family), but she is also a member of the old family from which she came. The biggest obstacle to getting this statute passed was that a person like Sally would wind up being a member of two families.
 § 117-2 
the rules of 117-1 apply on the instrument side, just like they apply on the intestacy side. Example: grandma has a will saying that she leaves her property to her grandchildren. One grandchild is adopted by a close family relative. Under the statute, the adoption cuts off the grandchild from the natural family! This doesn’t make sense – grandma still considers that person her grandchild. If the adoption occurs within the close family, the adoptive child should still be considered within the natural family.
The legislature passes § 117-2 for this reason.

Does this help Sally? In-family adoption is defined by § 117-
1(e). There are two prongs:
(1) the decedent must be a close relative (the adoptive child’s natural grandparent or descendant of a grandparent). Here, the decedent is Sally’s father, so this prong is satisfied.
(2) the adoptive parent must be by a person closely related – either: (i) a stepparent; (ii) the child’s natural grandparent; or (iii) a descendant of the child’s grandparent.

Uncle Jeremiah is too far out – he is a descendant of Sally’s great grandparents! So, the cut off applies under § 117-1(e). Sally is not related in a natural relationship to the decedent. She must share with Joan, a natural first cousin. Daughters take before first cousins – Sally takes everything as the daughter.

Why is there a cut off to begin with? Social workers probably suggested the cut off because they want the child to have the connection to the new family – NOT the old family! Bonding, etc.
It makes sense if you have strangers, but not if you have an in-
Page 15 of 102

family adoption where the kid is still part of the same family in some ways. So the legislature picked a degree of relationship when the constructed this statute. Jeremiah does not fit!
3.
Suppose that Sally would have taken in number two b/c Jeremiah was her uncle rather than her father’s uncle. Also, suppose in this case that Sally had predeceased D and was survived by her son Sam.
If Sally is dead, can her child take?

Seaman

court said that you start with the proposition that if there wasn’t an adoption, then there would be no problem because
Sally was the natural granddaughter. The 4-1.1 statute says cut off, but 117-1(e) says there shouldn’t be a cut off. Seaman says the way you should view this is if there were no adoption, 117-1(e) cancels out the other statute (it’s as if there was no adoption).
Keep in mind: 117-1(e) was a compromise. If prong 1 and prong 2 happen, then the result is the rights of an adoptive child to inheritance through the natural parent shall not terminate! This only protects the adoptive child, NOT the natural parents! (See top of page 59 in supplement). This means that Sally could inherit from the natural parents, but the natural parents could not inherit from Sally.

EPTL § 4-1.2(a)(2)

a non-marital child is the legitimate child of his/her father so that he and his issue inherit from his father and paternal kindred if: (see (A) through (D)).
 Joan is still out. She cannot come within (C) or (D) of § 4-
1.2(a)(1). Still need to get clear and convincing evidence! If
Jeremiah had openly and notoriously acknowledged her, and if
DNA had been taken, then she would have met the statutory requirements.

This statute was drafted, and the good guys lose. A person who quietly supports a non-marital child is screwed (does not openly and notoriously acknowledge paternity).
4.
Double-dipping – D has adopted her grandson (a1). What is a1’s share of D’s estate?

Santos

can the father inherit from a non-marital child? This question is governed by 4-1.2(b). “If a non-marital child dies…”

If you are a father and want to inherit from your non-marital child, you can only prove that you are the father by (A), (B), or (C).
There is no (D) option for the father! Joan can use EPTL § 4-
1.2(a)(2)(D) to show paternity, but the father cannot.

D is the adoptive parent. There is no cut-off. The result is that a1 can inherit TWICE. A1 can inherit as the adoptive child or the natural grandchild. The statute will not allow this to happen.
Page 16 of 102

 § 117-1(e) 
last sentence says that double dipping is not allowed.
If the child is in a position to double-dip, then it is not allowed and the child inherits through the adoptive relationship.
 The estate is split four ways. B, C and a2 each get ¼.

Suppose, however, that the decedent was C (not D). D is still dead. But C is the decedent whose money we are talking about.
Once again, is the cut off negated? YES – both prongs are satisfied (C is close enough as the decedent, and D is close enough as the adoptive parent). So there is a possibility of double dipping.
The statute will not allow this. Since C is the decedent and did not adopt (D adopted the child), then a1 will inherit in the natural relationship (not by the adoptive relationship). A1 inherits as a natural nephew. The estate is split into two. B gets ½, and A1 and
A2 each get ¼.

Now suppose that C is the decedent and D is still dead. A and B are alive. THE WRONG ANSWER IS: “since C is the decedent, then A1 inherits through the natural relationship. But since A is still alive, then A1 cannot take anything.” The answer is wrong b/c the statute is created to prevent double dipping. A1 would take through the adoptive relationship, even though C is not the adoptive parent. There would only be one chance to take, not two chances.
 § 117-2 
deals with instruments. See 117-2(c) – which is also meant to prevent double dipping.
5.
Suppose that Sally (D’s natural daughter) had been adopted by
D’s domestic partner Gina. Can Sally inherit from the decedent (D)?

In the first situation, Sally could inherit as an adoptive first cousin, but she was not a natural daughter because she was too far out.

Gina is not related at all by blood to Sally. Therefore, the cut-off applies under § 117-1(a) and (b). And 117-1(e) cannot apply because Gina is not close enough in terms of the adoption. Sally is adopted “in” to Gina’s family. It is a “stranger"

Matter of Jacob

this is about standing to adopt. Two legal parents are better than one. An unmarried partner wanted to adopt.
If there is a single person adopting, or a person unrelated to the child who is married to the natural parent, and the person wants to adopt, then what are the inheritance rights of the child?

Standing issues (see bottom of page 81 and page 92) . Does the section pertain to more than just adoption? Such as child support, etc.? Joyce seems to think it does.
 Sally is the decedent’s natural daughter and Sally is living with
Page 17 of 102

Gina. Gina adopts Sally. Sally is not trying to inherit as a natural person. When Gina adopted Sally, it cut off Sally from being the natural daughter of D.
 See § 117-2. “Strangers” language!

There should be no effect on the rights of Sally to inherit from the decedent. Sally should not be punished by virtue of any public policy controversy with respect to whether unmarried or same sex adoptions are allowed. This type of proposal has yet to be passed.
6.
Suppose in the first question that 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?

Personal cause of action – D is killed in a car accident through the negligence of X. This means there is a cause of action on behalf of
D against X, which survives D’s death. This is a personal cause of action (even though D is dead). The personal action is part of D’s probate estate and goes under D’s will.

Wrongful cause of death – this cause of action will not go under
D’s will in probate. It does not belong to the decedent (and therefore his estate). He cannot determine who gets the money by will. The cause of action is really for the people left behind (D’s survivors). These people are those who were “damaged” by D’s death. Must show pecuniary loss ! Then they are allowed to sue X.

As a legal matter, the two causes of action are brought together.
The classes of people who bring the actions are different (The personal cause action is brought by the estate. The wrongful cause of death action is brought by the people left).

Dan

even though Dan could make a case for suffering the most pecuniary loss of anyone, he still cannot take. Under 5-4.1, the class of people are only those who can take under 4-1.1. This is in spite of the fact that the will leaves everything to Dan. Dan cannot share!

Joan

cannot share either. She is not a distributee. She might suffer pecuniary loss, but on the facts, it will not matter.

Sally

ask: is Sally a distributee under 4-1.1? YES! Sally is a distributee because (even though she is cut off as a natural daughter), she is NOT cut off as an adoptive daughter! When you are adopted, you are always adopted OUT and adopted IN. She took as an adopted first cousin in the first scenario, and under 4-
1.1(a)(6), she took. So this is how she gets to take as a distributee under wrongful death. All she has to do is show pecuniary loss.
Pecuniary loss has to do with the kinds of things that a person who,
(if injured rather than killed), would be showing if they were able
Page 18 of 102

to sue on their own. Must show economic detriment by the loss (D had a duty to support Sally, or he DID support Sally).

Gonzalez

it is about expectations, not just duties!

The distributee category is defined under 4-1.1 and 4-1.2, as well as DRL § 117.
7.
Suppose in the first question that D died with a will which left
“$10,000 to each of my issue and the rest of my estate to my heirs.”

This question deals with instruments.

First : do any of the people take a pre-residuary legacy? This is a legacy given to a class of people prior to the residue being given to anyone else. Who gets, if at all, any of this $10,000?
 § 1-2.10

issue are the descendants in any degree from a common ancestor.
 § 2-1.1

heirs at law and next of kin defined.
 § 2-1.3

adopted children and posthumous children as members of a class.

Dan

he is not related to D by blood or adoption, but D treated
Dan as a child. Can Dan take? If Dan is named in the will, then yes. Otherwise, no. Most importantly, we are dealing with what the words mean in the instrument. What does the word “issue” mean in the will? Must determine what the testator intended. Dan still will not take, because D did NOT articulate his intent to include Dan in the will. He only used the word “issue.” Issue does
NOT include Dan. This is because we need to look at linguistic permissibility. Words have meaning, and that legal meaning must be followed.

Joan

Joan is D’s non-marital first cousin. But her father never recognized her, etc. Therefore, she is NOT issue! Joan is a natural first cousin, and this is NOT issue. Joan cannot get anything.

Sally

is Sally issue? Yes – she is a lineal blood descendant.
She has been adopted out.

Best

a person who is like Sally, and is a member of the class
(issue), is ejected from the class by virtue of the adoption. At the time of the Best case, there was no statute. The court came to this conclusion on its own. o The word “issue” can be construed to include a person if that person has been “adopted out.” o The court can issue default rules (canons of construction). This happens when the court says what it thinks “issue” should mean.
Page 19 of 102

o Two questions dealing with when the will speaks :
(1) When does the will operate to pass property? At death.
(2) When determining what the will means, at what point in time do you focus on? Death? No, not death. You look at the circumstances at the time it was written. o In Best, when the testator writes the word issue, who is his issue? Had the adoption occurred yet? The court looks at the policy behind adoption. Policy is that the adopted child should be accepted into the new family. o Best says that the child is no longer issue. No longer part of the class! This is not a vested remainder in fee simple, it means the vested remainder is taken away. o What if Best had been about a close family adoption? See footnote on page 110 of Supplement.
 § 117(2) 
codified Best by clarifying the footnote. This section was created with respect for instruments and it took on the rules from the first section regarding adoption. If you are dealing with instruments and adoption, then the adopted child will be taken out of the class. BUT, if the adopted child remains adopted in the close family, then the child will NOT be taken out of the class.

Back to Sally

is Sally the decedent’s issue within the terms of §
117(2)? No – Uncle Jeremiah is too far out to call this a “close family adoption.” This is similar to the situation had the decedent died intestate.
8.
Everything is passed by the residuary clause in decedent’s will:
“$10,000 to each of my issue and the rest of my estate to my heirs.”
Oct. 5, 2005:
Next week: work on 5-1.1(a). Read it, and consult the notes in the McKinney’s

The residuary clause takes care of two things : (1) all the stuff left over; (2) it voids out public policy that might have had some sort of effect on distribution.

Question remains : who are D’s heirs? You could say that D’s heirs are the people who would take if he did not have a will (his relatives). BUT: first you should look at legislative canon or cases like Best, in which the term issue is defined.
 § 2-1.1

heirs at law and next of kin defined. Tells us to look at
1-2.5. When using an instrument, unless a contrary intention is
Page 20 of 102

expressed (this means a default rule!), the term “heirs” means distributees.
 § 2-1.1 sends you back to §4-1.1 to determine distributees, and
Sally will take the whole estate under the will as the only heir!

Suppose that Jeremiah is the decedent with the will. Jeremiah is
Joan’s non-marital father. Can Joan take as Jeremiah’s issue?

Joan

if Jeremiah is the decedent, can Joan take? The issue concerns her non-marital daughter status. If Joan tries to take from
Jeremiah and there is a will, would Joan take?

This is the other part of the Best case (the life tenant was adopted out and non-marital).
Two issues in Best:
(1) what is the relevance that the child is non-marital;
(2) what is the significance of the child being adopted out? As to the first issue, the court overturned hundreds of years of caselaw when it decided that the only children who can take are those children born in wedlock. Irony – the court ruled over 100 years of precedent but the child still did not take (he was adopted out)!
Today, the child would be considered to be issue. The Court of
Appeals, in writing dicta, sets precedent. So, the dicta would have to be followed.

Under Best, Joan would be considered issue even though there was no paternity test, etc. This is because the dicta in Best said so.
And the legislature passed § 2-1.3.

Thus, 4-1.2 controls if will made before 1992 (plus Best)

2-1.3 controls if after 1992.
 § 2-1.3(a)(3) 
deals with non-marital children and says that 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.

Is Sally issue of Jeremiah? Sally is Jeremiah’s adopted daughter.
In this hypothetical, Jeremiah is the decedent. And since he is her adopted father, she is considered to be his issue because she is adopted IN. A long time ago, the court said that the child would be considered to be within the class. And now, that holding is codified in § 2-1.3(a)(1).

What does it mean to say that Joan is the non-marital daughter of
Jeremiah? It means that a person is born of a mother, M, and M was not married to Jeremiah. IT DOES NOT MEAN SHE
WASN’T MARRIED, IT JUST MEANS SHE WASN’T
MARRIED TO JEREMIAH! What if M was married to X, what does it mean to say that Joan is the non-marital daughter of
Page 21 of 102

Jeremiah? It means that M was fooling around on X (her husband) with Jeremiah. The presumption is that for all purposes, when
Joan was born and M was married to X, X is the father and no one else is! HOWEVER, this is a rebuttable presumption. It could be shown that Jeremiah is the real father.
 See NY CLS DRL § 73 (see page 112 of supplement) and
Woodward (p. 102 c.b.) Applies in intestacy and instruments:
Joan is X’s child, not Jeremiah’s. THERE MUST BE AN
IRREBUTTABLE PRESUMPTION THAT THE CHILD IS THE
DAUGHTER OF X. § 73 deals with the legitimacy of children born by artificial insemination. The amendment to § 73 is proposed right now (not passed yet). In NYS, the amendment has passed the Senate, but not the Assembly yet.
 § 73: does it apply to posthumunous conception? Doesn’t seem to say. More likely just predeath. o “Any child born to a married women …” Doesn’t cover Woodward situation! She wasn’t married—he was dead. Or what if she was married to someone else?

Woodward seems to require that the father must consent to posthumunous conception, or else child isn’t father’s issue.
 Thus, NYS doesn’t have a statute that covers this.

Final exam: no statute, so answer by means of common law. Woodward is all we have.

NOTE : what if you are a drafting a will for a man? What do you ask him? You must ask him if he has illegitimate children, or if there is a chance that he could have illegitimate children.
Otherwise, you run the risk of the default rule kicking in and allowing a non-marital child enter the class of issue that will take from the decedent’s estate!!! Even if you are drafting a will for a woman, you must ask her these questions. Her children could have illegitimate children, or she could as well.
G.
Advancements and Simultaneous Death
1.
Problem in Supplement on page 6 :
H & W own Blackacre and Whiteacre as tenants by the entirety. They also have $100,000 in a joint savings account. Assume both H & W have equally contributed to all this joint property. Their son needs money. H &
W come to you, their lawyer, and say that they are willing to give their son
$30,000 in the form of Blackacre. But H & W want to make sure that the daughter is treated fairly. The Son is then granted an advancement. When the advancement is written in accordance with the statute, then there will be certain implications.
 As their attorney: first tell H & W that you don’t do advancements
Page 22 of 102

in your office. Reason being, is that you want to do an advancement as a last resort. Maybe try gift: up to $11,000 tax free, but have to file gift tax return for the remaining $29,000. o Problem is: how treat dtr fairly? o Don’t die intestate! But if will be dying intestate, then… o So how do we do an advancement: 2-1.5.

Need writing

Consent by donor or donee

If gift is classified as advancement: have to do hotchpot
 § 2-1.5 – Advancements: a default rule 
an advancement is a gift. All gifts, however, are not advancements. An advancement is a gift intended as an advancement on the person’s rights to take in intestacy or as beneficiary under an existing will . It is an accelerated transfer of something to a person that would have gone to them in intestacy. The legislature requires that the advancement be in writing. This is because, otherwise, the children would bicker over their parent’s intent about giving property to them.
The legislature said that if there is going to be an advancement and it is intended to be an advancement, then under § 2-1.5, it must be made in writing. o What if no writing? Then default rule is it is NOT an advancement.

Do two things for H & W: (1) draft a deed for the son (and possibly a gift tax return); and (2) draft two wills so that the daughter’s interests are taken care of. Do not write one will! Must draft two wills – one for each parent (H & W). o So if intestacy-as above. o If will + advancement—change the will or make sure you have adhered to 2-1.5.

What should the wills say? (1) H’s will says that he leaves everything to W. But if W predeceases H, then what? Must also make sure that you do NOT say “treat the children equally.” The son was given $30,000. The daughter should be given more than the son in the will because of the gift—just make an adjustment to the will.

Blackacre was given to the son when it was worth $30,000. Now
Blackacre is worth $40,000. Maybe say: daughter will take
$30,000 OR the present value of Blackacre at the time of death.
Then: say after the daughter receives that amount, the residue will be split between the two children equally. There are still some problems though, because the son is still earning interest on
Blackacre. Is this fair to the daughter?
Page 23 of 102


Guardians of property under Article 81 are allowed to do advancements.
2.
Problem in Supplement continued :
H & W may want to decide for purposes of their will what would happen if they die in a common accident. Assume that H & W are killed in a common disaster and it cannot be determined who died first. H & W are intestate and survived by only their two children (S & D). At their deaths,
Blackacre is worth $40,000 (given as an advancement to S); Whiteacre is worth $50,000; and the joint bank account balance is $15,000. Ignoring debts and considering only the above-mentioned property, what are the rights of S & D?

Under the statute, consider the fact that S got the value of
Blackacre at $40,000 as an advancement. But treat this as though they never gave Blackacre to the son. The pot is then worth
$105,000. o Don’t forget that you still have 2 separate estates: H’s and
W’s. For our purposes, you still put it all together.

They really have 65 (50 +15), pretend they have the additional 40, this equals a total of 105. Divide by 2 (for the son and daughter), and you have 52.5 each. Subtract the 40 that the son already has b/c of the advancement. The son will get 12.5 and the daughter will get 52.5.
 Under § 2-1.6(c), we must assume that all of the estate shared by H
& W is split in half down the middle.
 § 2-1.5

advancements.
3.
Simultaneous Death: 2-1.6 (a default rule)
 § 2-1.6

disposition of property where there is no sufficient evidence that persons have died otherwise than simultaneously.
This statute deals with what might happen if H & W die at the same time in a common disaster.
 § 2-1.6(c) 
when there is no evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property shall be distributed one-half as if one had survived and one-half as if the other had survived. Severs the JT for practical purposes, and creates a TIC.
 § 2-1.6(a)  deals with the probate estate and whether or not a person has a will. What if no JT? Each one dies with respect to his own property as though the other person had pre-deceased. A is viewed as predeceasing B, thus A’s property goes to his heirs. B is viewed as predeceasing A, thus B’s property goes to his heirs.
 § 2-1.6(b) 
see top of page 17 in the supplement.
Page 24 of 102

 § 2-1.6(d) 
has to do with life insurance. Means that the insurance goes back to the estate, the insurance company does not get to keep the proceeds.
 § 2-1.6(e) 
important – tells you that this is a default rule! It means you can change the provision by will! This is done for tax planning purposes. o If life ins. contract provides an alternate to the beneficiary who predeceased, then 2-1.6 N/A. Same with will.

Page 137 of Casebook:
 Husband dies two seconds after wife. The wife’s estate passes to husband within those two seconds. Then the entire estate passes to the husband’s heirs. Husband’s only heir is his brother, so the brother gets it all. Wife’s heirs are left out.

To avoid this scenario : write in your will what you would want to happen. You can avoid a short death scenario by writing in your will that you want your property to go to your own heirs.
You could also leave a life estate to your spouse if she doesn’t die within six months of you. Then the marital deduction isn’t screwed up for tax purposes.
4.
Disclaimer (Renunciation): § 2-1.11

Use of this tool can cure a lot of mistakes, made either by will or by attorney who created the will. o Once person is dead, no further planning can occur. o When you disclaim, the state views the inheritance as if you never had it.
See supplement, page 7, #9 .
Decedent is survived by Bob (his brother), Bill and Beth (Bob’s son and daughter), and Jim (the son of Bob’s deceased sister, Jill). A year before D’s death, a money judgment had been obtained against Bob and docketed with the county clerk. D’s net estate consists of Blackacre, which is worth $12,000.
 Creditor: he wants his money under CPLR § 5203(a). This statute says that if I owe someone money and transfer property to someone else, the creditor can come and take it. The property has to go to the creditor.

Who wins? Does the creditor get the money, or do D’s heirs get the money?
 § 2-1.11

meant to be used for tax purposes. But creditors try to use this section to collect.
 § 2-1.11(d) 
it is treated as though Bob predeceased D when he renounces his interest in the estate. The creditor is Bob’s creditor, not D’s creditor. This statute says that it is treated as though Bob had predeceased D. HOWEVER, since Bob
“predeceased” D, then there is a question of gift taxes. The
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creditor would argue that this statute is for tax purposes and it doesn’t talk about what would happen if a creditor was involved. The creditor will point to CPLR § 5203: you can’t transfer from your creditors! Bob will say I just refused to take it! 2-1.11(d): it is a by-product of this statute (getting out from your creditors). Unless…you are certain creditors (i.e. IRS).

Some creditors have enough clout that they can collect despite a renunciation!

Drye case

Supreme Court case. A disclaimer does NOT defeat a federal tax lien. The taxpayer owned the right to transfer the property. Just having that right – the power to channel assets from the estate – constitutes property subject to the government’s tax lien.

Renunciation also gives rise to problems concerning Medicaid coverage. If a person gives away a large sum or sums of money prior to applying for Medicaid, and they did so within the “look-back” period, then they will be denied coverage or penalized for a certain number of months. Also, if you have been on Medicaid for a while, and then suddenly you get an inheritance, you will no longer be eligible for Medicaid while that money is in your possession.

Argument against the creditor : if Bob has a judgment against him at the time of D’s death, then the money should not go to
Bob (have D write that in his will, then the money will NOT go to the creditor!).
 If I owe someone money, should that person get paid? I can’t just say that I don’t want the money that’s coming my way from an inheritance to avoid paying a creditor.

Creditor: the creditor will not get the money in this scenario!

Bob: assume he predeceased D.

Jill: also predeceased D.

By representation: divide by three (there are three alive – Bill,
Beth and Jim). Each of them get 1/3.

BUT: look at §2-1.11. You are treated as though you are predeceased with respect to the renounced share!!! This means that whatever Bob does only affects the renounced share, and
Jim gets more than 1/3.

Jim: will say that he gets half - $6,000.
 When Bob renounces, the creditor doesn’t get anything, and
Bill and Beth split $6,000, Jim gets $6,000.
 Look at § 2-1.11 (halfway down the statute). In a situation like this, where per stirpes or by representation will apply it goes straight down, to Beth and Bill.

If Bob had a wife, she would not get anything! She is not related to the decedent. The inheritance goes straight down (to the kids), not over (to the wife). The property is treated as
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though Bob predeceased when he renounces. His wife cannot take. It is lineal from the decedent.

In this situation, it is more likely than not, that if the decedent knew Bob didn’t want the money, he would have left it to Beth and Bill, not Jim. The statute is designed to reflect the default notion of what decedent would have wanted.

To avoid estate taxes: use a disclaimer. Kids can disclaim
$500,000, which will go to their mom, and then when their mom dies, they will get that money. This way, they avoid paying estate taxes on $1 million.

There is a time restriction to disclaim! You must disclaim within nine months of the decedent’s death!
 If the kids can say, within nine months, that they don’t want the money, then taxes won’t have to be paid.

Other problems: can you get the kids to agree to renounce?
They might not want to! Especially if decedent’s current wife is not their biological mother (their dad remarried).

If the money is left to a minor (Tina), then the minor is unable to renounce. She must have a guardian, and the guardian could possibly renounce on her behalf. But she cannot renounce!
Common law

even though there is going to be an overall tax savings for the family, this does not trump the fact that the minor is giving up money and not getting anything for it.
There really isn’t any way around paying the tax in this type of situation. Tina will likely have to pay the tax.
 Now suppose that the minor child isn’t a minor – she is 21.
But suppose the 21-yr old (Tina) has a minor child (Tanya).
Now the minor child’s guardian must go to court and renounce.
The court will allow her to renounce! The minor-child is able to get something because her mother is renouncing. Basically,
Tanya isn’t giving up anything because her mother renounced too. So it’s just going back to the decedent.

Suppose Harry has a $4 million estate and he leaves it all to his wife, Hilda. If Hilda keeps the money and then she dies, she will pay some tax on the estate. She leaves the estate to her kids. This means that Harry’s $1.5 million exclusion will be wasted! He should have given $1.5 million to the kids and the rest to Hilda. That way, he would avoid paying taxes on his estate. But by giving it all to Hilda, under § 2-1.11, Hilda may renounce part of the estate. Now, the $1.5 million will go to the kids and Hilda will keep $2.5 million. Hilda renounces to take advantage of the exclusion. Kids renounce to avoid the marital deduction.

The will of choice these days: disclaimer will . This is because of the sunset provision for estate taxes. In this type of will, a husband would leave everything to his wife. But if she
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disclaims, then the husband directs the way things shall pass in his will.

What should really happen when Hilda disclaims is that the money will go to a trust (not really to the kids). Sending the money to a trust is the better idea.
5.
Murder
See supplement, page 5, # 6 .
H murders W and immediately thereafter commits suicide. H is survived only by his brother, John. W is survived only by her sister,
Sarah. Both H and W died intestate. W’s net estate was worth $10,000;
H’s net estate was $5,000.
 We are only concerned about W’s estate. H’s estate does not matter.
 Assume that H survived W. W’s estate passes to H. H takes the $10,000 as W’s only heir under § 4-1.1.

But what about the fact that H killed W? In New York, there is no statute that tells us what will happen. However, we look at the caselaw.

Minority position : H gets the money from W and is able to keep it, despite the fact that he killed her. Killers go to jail. If the legislature wants to pass legislation about what happens if someone kills someone else and inherits, then so be it. But until they do, the minority position holds that the estate shall pass despite there being a murder.

NYS : majority position. Riggs case

we don’t make the rules, but killers should not profit!
 § 5-1.2

disqualifications: (1) divorce; (2) abandonment.

Schwartz

the husband/killer cannot lose what is already his own property.

Bobula

Husband cannot take his wife’s half, b/c he killed her. He cannot keep the other half, b/c to allow him to keep the other half would allow him to GAIN.

Bobula

restitution. The nature of the joint tenancy allows the husband to

Liebman was affirmed and Bobula was overruled by Covert.

Covert

A joint tenant is entitled to an immediate one-half interest in joint property. This interest is immediately vested.
Covert says half and half

you don’t forfeit your own half, and you don’t get the other half.

Liebman

petitioner relies on Bobula (see page 136 in Supp).
The rationale that the joint tenant doesn’t gain is that – if you know that if you kill someone and then you won’t get their half, and you won’t get your own half, then maybe you won’t kill the person. Deterrence is a factor. But Bobula is wrong because it says all you have to do is take out the money and
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then you can kill the person, b/c you can keep what you took out! Liebman is right.

Liebman

is a joint bank account. Covert upholds Liebman.
However, there was a killing on Long Island. One person killed his joint tenant of a bank account. Covert deals with jointly held real property. What happens in a jointly held bank account? See § 4-1.6 of the EPTL.
 § 4-1.6

(notwithstanding 79-b) a joint tenant convicted of murder in the second degree or in the first degree of another joint tenant shall not be entitled to the distribution of ANY monies, except those that the person convicted put in himself.
The joint account cannot be a convenience account; it must be a true joint account.

79-b of the Civil Rights Law

see pg. 121 of Supplement.
If someone kills someone else, they do not forfeit their own property!
 If Joyce’s daughter kills him, and they are joint tenants of a bank account, what does she get? She gets half under Covert.
Under § 4-1.6, she wouldn’t get anything, except the money that she put in to the account.
 § 4-1.6 
if daughter is convicted, she will not get anything.
This statute adopts the statute of restitution. This is because she did not take her half out before she killed her father.

Tenancy by the Entirety

H kills W. In terms of gain and loss, consider this scenario. When a person has a TBE, no matter who applies the consideration, each person has a right to the commuted value of the life estate in one-half . o You cannot sever a TBE! o The person who kills in a TBE is only entitled to what he had before, which is a life estate. o Covert

did not involve a TBE, but the standard for a
TBE is related to Covert. o Bobula approach

victim’s family gets it all (this is not consistent with Covert).

Life Insurance . Covert also deals with life insurance. What happens when an insured kills a beneficiary? In Bobula, the court did not decide this issue, it sent the case back to determine whether the insured could change the life insurance beneficiary. What difference does it make if the insured can change the beneficiary? If the insured could change the beneficiary, and then the insured kills the beneficiary, then the insured should keep the policy. The insured could have killed changed the beneficiary – so the insured could have kept the beneficiary from getting the money without killing him! In
Covert, the court said if you can change the beneficiary, then it is the insured’s property to keep.
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
HYPO (for exam): A sets up a Totten Trust for B. A kills B.
Totten trusts are revocable. Therefore, A gets the money back!
It doesn’t matter that A killed B. A can change the beneficiary of the trust. This is what Covert allows! However, if B kills
A, B cannot get the money because B would gain.

Gain and loss! If a killer gains, he will not profit.

HYPO: o T dies intestate. T has a brother, B. T has a son, A. T has a grandson, A1. A killed T. o T is dead, A cannot take. Does the money go to B or
A1? The money goes to A1. A1 didn’t do anything wrong. The sins of a child’s father should not affect the child. o Suppose A, who killed T, had died before T. Then where does the money go? It goes to A1. Not because
A1 represents A (not b/c he takes lineally), but the money goes to the nearest surviving relative, who happens to be A1. This is per statute, 4-1.1. o Suppose that before T died, A1 killed A. T dies. Who takes T’s property? A1 cannot take A’s property. But can A1 take T’s property? A1 did not kill T. B gets the money! This is because A1 put himself in the position of inheriting from T by killing A. o A1 kills A. T is still alive. T says he will create a will and leave everything to A1 (his grandson). Then what

HYPO: happens? There is no caselaw on this. o H and W have a child, C. Before W died, the baby was born. W was killed for insurance. Who gets the money? Not the insurance company. If the child survives, the child takes the money. But then the child dies 17 days later. The father tries to take, because he says that he is C’s closest relative. H cannot take from
W. H cannot take from C. Where does the money go?
There are two sets of parents – H’s parents and W’s parents. Does the money go to either set of parents?
The money is with C now, so the money is split!!! Half goes to the maternal side, half goes to the paternal side.
Her parents will say that his parents should not take, b/c they would be taking in light of the fact of their son’s felonious act. However, 4-1.1 is about intestacy succession, and THE GRANDPARENTS TAKE IN
THEIR OWN RIGHT! Therefore, the fairness of the scenario is not at issue.

Covert – what happens to the money? Court of Appeals set policy for other courts.
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o The first issue : Joyce thinks the court was wrong. See
Law Review Article. o Consider also Riggs.

Covert  if we knew how the court would interpret the will, it would be more helpful. This if for purposes of joint tenancy.
Under 5-4.1 of the EPTL (wrongful death provision), the intestate distributees who are the father and mother, come before the brother, and they have a wrongful death action against the state. They can get money from a wrongful death action. They take the money like creditors take money. On the other hand, if the court had decided how Joyce argued in the case, then the money all would have gone to Kathleen’s will, and the money would have gone half and half to each of the families. It is actually better how the court decided, since it went all to her side of the family and Kathleen’s husband’s side didn’t get anything.

To what extent is the precedent given the fact that the underlying facts were different than what the court supposed?
(Riggs and Covert). In Riggs, the court thought the mother was still alive, but she was actually dead! So when the property was passed to her, she was dead and did not take in reality.

Kirby Lumber

dealt with whether there was income and a discharge of indebtedness. Court decided on the basis that the corporation had received something for the money that they owed. The basis of the case was factually undermined.

Best  court overruled 100 years of precedent! Even though the child didn’t end up taking anything, the court changed the rule.
III.
A.
Right of Election
1.
The Elective Share

Divorce or Death of Spouse o Divorce

what is relevant is whether the property was acquired during the marriage – not who has title! o Death

what matters is who has title – not who acquired the property during the marriage!
2.
NYS and EPTL § 5-1.1

Up until 1930, there was no right of election in NYS. The husband could leave his wife penniless by giving away property at his death.

Dower – a life estate in one-third of the real property
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1
2
3
4

In 1930, the legislature decided that a husband has a duty to support his wife. He cannot just leave her penniless at his death.

The original intention of the right of election was that of support.

In 1992, the notion of dower was eliminated in NYS. It was attempted to bring the right of election more into the line of thinking that your spouse deserves the right of election, not your spouse needs the right of election (which is where it originally came from).
B.
EPTL § 5-1.1-A
1.
Problem on page 141 of Supplement
H and W were married in 1987. H died in 1999 survived by W, a brother B, and a daughter D (by a former marriage). H’s entire net estate consists of Blackacre, worth $100,000, and a $50,000 in a savings account in his own name. What would W’s rights be in each of the following hypos? Consider W’s rights, if any , (1) in intestacy,
(2) under the will, and (3) with respect to a right of election under
EPTL § 5-1.1-A.
The probate estate consists of $150,000.
HYPO
Intestacy (4-1.1)
Is there anything that does not pass under the will?
W has no rights – everything passed by will.
W has no rights – everything passed by will.
Under Will
§ 1-2.19 disposes of property by will – H can leave to whomever
W has no rights – H excluded W.
W has no rights – the inferred positive disposition of the will is that the daughter takes.
W gets a life estate in $150,000.
§ 5-1.1-A
(plus § 5-3.1)
W gets $50,000 OR 1/3 of the estate – whichever is greater. So she gets
$50,000.
W gets $50,000 – same situation as above.
W has no rights – everything passes by will.
W has no rights W gets $50,000 W gets 0
In 1988, H executed a valid will which read: “I leave all my property to those persons (with the exception of my wife and daughter) who would be my heirs if I died intestate.”

The reference to 1988 is not important. It is only important whether decedent died after 1992!
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
Intestacy

W has no rights under intestacy! All of the property is disposed of by will. Intestacy (4-1.1) only comes in to play when there is property NOT disposed of by will.
Everything would go to B under the will, because B is the only person left if H died intestate (H excluded his wife and daughter).

Under Will

W has no rights under the will. B takes everything under the will. However, must consider 5-1.1-A (W will get some).

5-1.1-A

4-1.1 says she would get $50,000 PLUS 1/2.
However, under 5-1.1-A, she gets EITHER $50,000 or 1/3 of the property. Under 4-1.1, she would get more. But for purposes of 5-1.1-A, she would get $50,000. Who would she get the money from? W gets the money from B, because B is getting everything under the will. o See 5-1.1-A(c)(2)

except as otherwise provided in the will, or other testamentary instruments, ratable contribution to the share to which the surviving spouse is entitled shall be made by the beneficiaries and distributees… Which contribution may be made in cash or in the specific property received from the decedent… o This just means that B can give W cash or interest in Blackacre, or a combination, whatever he decides. B has the option to give her what he wants, up to $50,000. But W does not have the option to request how she will receive the $50,000.
B can only give her cash or some of what he received from H – B cannot give W some of his own stocks, etc. o W is entitled to the $50,000 outright in fee simple!
Suppose the only provision of the will reads: “It is my last will that my wife get nothing from my estate and not be considered my heir or distributee.”

Intestacy

does everything pass by will? In NYS, property is disposed of by will (or not disposed of) in § 1-2.19. How is the will interpreted? H does not want W to take. This is the negative statement in the will. But what is the positive reading of the will? Where is H’s property going? Make a positive statement – to whom is H’s property going? The court will probably say that this Will is read as a positive disposition for
H’s daughter. It would go to the daughter NOT because she is first in line for intestate succession, but because the positive disposition of the will is telling us that it goes to the daughter!

Under Will

the daughter will take everything by will. The court will interpret the Will. The language of the will does not
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specify to whom H’s property is to go to upon his death. So the logical reading the court would make is that it goes to the daughter! The wife cannot be disinherited by a negative or positive disposition, because she can still take under 5-1.1-A.

5-1.1-A

W takes $50,000 or 1/3 of the estate, whichever is greater. So W gets $50,000.
Suppose the will reads: “To my wife, I give a life estate in all my property. The residue of my estate I give to my daughter.”

Dower is dead! Dower was a life estate interest in 1/3 of the real property. From 1930 until 1992, all the spouse had was a right to 1/3 of the estate. Basically, all we had in NYS during that time was dower . Up until 1992, they threw a bone -
$10,000 plus the life estate in 1/3 (the wife would receive
$10,000 plus a life estate). Lawyers in NYS called this life estate the “elective share trust.” HOWEVER, this system didn’t make sense! If the couple divorces, they will get half!
So at divorce, you get half, but if you stay married, you get less
(one-third)? This does not make sense! Now, when you give your wife a life estate in your property for right of election purposes, it won’t matter, b/c she cannot dispose of the property. She has no right of disposition over a life estate (it ends at her death).

Intestacy

H is giving away everything by will – he gives W a life estate in EVERYTHING. So there is no issue of intestacy. The remainder goes to the daughter. Everything is covered by will. The wife gets NOTHING under 4-1.1.

Under Will  Under the will, W gets a life estate in $150,000.
What does that mean as far as her right of election?

5-1.1-A

W gets $50,000. OR she gets a life estate in
$150,000. What should she do – should she use her right of election? Does she “elect” to take the $50,000 or does she take the life estate? Ask W what is best for her economically (the life estate in $150,000 or the elective share of $50,000). If she is young, it might be worth it for her to take the life estate.
Even though W cannot sell the life estate (no one will want to buy it from her, b/c W could get hit by a bus!), she could live off the interest of it. However, there IS the possibility that W could sell the life estate to her remainderman (the daughter). o 5-1.1-A(a)

the elective share is the greater of
$50,000 or one third. But, then we have to ask if the net amount is reduced by one of three ways, as listed in 5-1.1-A(a)(4). Under, 5-1.1-A(a)(4), the interest must pass absolutely . This does not include a life estate! See 5-1.1-A(a)(4)(B) – discusses what is passed absolutely . In order to reduce something in your will to the surviving spouse, you must do
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something absolutely – you must give her something outright, like Blackacre, etc. o W’s elective share is $50,000. She got 0 in intestacy. Under the will, W got a life estate – but it counts for nothing b/c of the word “absolutely!” o 5-1.1-A(a)(4)(B)  if W says she wants her
$50,000, which she a right to receive outright, can she get that PLUS what he left her under the will?
NO – dower is dead. W has an election –5-1.1-
A(a)(4)(B) – she chooses what she gets – either
$50,000 or the life estate. o The point of this is that W now has the right to
ELECT . o If W says she wants the $50,000 outright (she doesn’t want the life estate), then what happens if she elects? W is treated as though she predeceased.
If W is treated as though she predeceased H, what happens to the remaining $100,000? The residue accelerates and goes to the daughter! D gets
$100,000. This will cause a tax problem if the money amount is large enough ($150,000 is not large enough to matter, but some amounts are) – there is then NO marital tax deduction for the estate.
(Example: owner of Miami Dolphins had to sell the team b/c when he dies, the wife would get the team and the taxes would have to be paid). o 5-1.1-A(4)(A)

if spouse takes their elective share, then he/she is treated as though he/she predeceased the decedent spouse!
Suppose the will reads: “I give my wife all my personal property. The rest of my estate goes to my daughter.”

Intestacy


Under Will


5-1.1-A

2.
Class discussion on March 9, 2004

1930s

isn’t there a way around the whole dower thing?

Series of cases where trusts were set up (non-probate strategies to get around § 5-1.1).

Illusory Doctrine

if what someone does is “illusory,” (see
Riefberg case), then can they get around the rules? But what is illusory?

1960s  the idea of testamentary substitutes begins.

1966  legislature will not allow people to have their cake and eat it too (ex: if you create a totten trust to avoid property being
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part of the probate estate. You can change a totten trust at any time, it doesn’t matter if you say it is for someone else).
3.
Revisiting the Hilda problem with Right of Election (see page 141)
Determine Hilda’s rights under 5-1.1-A in the fact pattern set out in the problem we did on “Intestate Succession Under the EPTL.” In determining Hilda’s rights, assume first that the will is given effect under the “cy pres doctrine,” and secondly, that the will is not given effect (as we assumed when we determined Hilda’s rights under 4-
1.1). Also assume that Harry supplied all formal consideration (i.e. salary) for all the assets listed.

Testamentary Substitute

a substitute for a will. Since it is a substitute for a will, then the statue treats it as though the property is still in the probate estate and is given away by will. Example:
Totten Trust. A Totten Trust is a testamentary substitute and is treated as though it is part of the probate estate. This is so that the
5-1.1-A estate that the wife receives a third of, is a combination of the probate estate PLUS the testamentary substitutes !

In the table, if something is part of the probate estate, then it moves over to the § 5-1.1-A column, and it is part of the probate estate under § 5-1.1-A!

Distinction between TS and TS for Spouse! o Whether something is a TS has nothing to do with whether it is in the spouse’s favor or not! See § 5-1.1-A(b)(1). Where a person dies after 8/31/1992, the following items under (A) through (H), whether benefiting the spouse or anyone else, shall be treated as testamentary substitutes ! Must look at things other than the probate estate to determine how rich a person is – how is the right of election satisfied?

Reynolds o (b)(1)(F)(ii)

deals with power to revoke (which really covers gifts causa mortis – (A)). o Distinction between wills and things not called wills (but really
ARE wills). o Two forms of testamentary disposition – (1) wills; (2) substitutes. These forms are the same, but their legal ramifications are totally different. o (b)(1)(F)

if you set up a revocable trust and don’t set up a will, and you do everything with the instrument that you could have done by will, then the trust will be considered a substitute for the will (a testamentary substitute), and it will be considered a part of the probate estate.

Boyd o Life insurance

life insurance is NOT a testamentary substitute for legal purposes! While it fits within the statute (§
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5-1.1-A(b)(F)), it is clearly NOT a testamentary substitute according to caselaw. o Page 157 of Supplement

Joyce says that life insurance is clearly within the statute and should be considered a testamentary substitute. However, because of the legislature, it is NOT a testamentary substitute! o When the statute was first drafted (§ 5-1.1), it specifically said that life insurance WAS a testamentary substitute. But then it was changed and life insurance was specifically taken out of the statute. o (F)(ii)

power to revoke, … invade the principal. This language is carried over from 5-1.1 into 5-1.1-A. The power at the date of death is either retained ALONE or in conjunction with a person who does not have a substantial adverse interest!
Joyce says that, basically, if you retain the power to revoke, etc., and you can only do it with the consent of an adverse person , then you really do NOT have the power for purposes of this statute. o Is Reynolds authority for this? o After Boyd, most cases have held that life insurance is NOT a
TS! Judge Radigan, the judge who wrote the Boyd decision, was part of the history behind the legislative intent to keep life insurance from being a TS. o Joyce: if Boyd was decided after Reynolds, the person who has the right to change the beneficiary in a life insurance policy has retained “meaningful control” over the policy. SEE PAGE 151 of SUPP. (Note: Boyd was decided after Reynolds!). o Broad power was retained in Reynolds. She could have appointed anybody in Reynolds. However, in Boyd, the power to appoint was only for three people to be appointed (not as broad as the power in Reynolds, where there could have been a lot of people appointed). o Boyd – she could only appoint to A or B or C. This is not like
Reynolds, where she could have appointed anyone! o Reynolds is the strongest case for saying that something is a testamentary substitute (broadest powers).

Reifberg o Two brothers each owned 50% of the corporation. Typically, in order to keep the business in the family, shareholders enter into agreements so that when one of them dies, the shares that they own will be sold to the other family member or trust. The shares are disposed of or redeemed to benefit the family. o In Reifberg, when one of the brothers died, his shares were to be sold and then go to his estate. However, the two brothers changed the agreement right before his death. Instead of the proceeds going to his estate, the decedent wants the proceeds to
Page 37 of 102

go to his former wife. Then he dies. The second wife said that this is a testamentary substitute under (b) o Did the decedent have the right to dispose of his shares in such a manner? The court of appeals said YES. o The biggest problem with this case is that it doesn’t really explain how it fits within the statute! This was a contract – decedent should have gotten the consent of his brother. In order to change the contract, the brother would have had to consent. The court does not explain this. See page 147 of
Supp

shareholders’ agreements cannot be brushed off by likening them to the abrogation of “any contract.” But where does it say this? The court says this, but does not say why or where it gets this from. Shareholders buy-sell agreements are testamentary substitutes, “just because.” o But the people who wrote 5-1.1-A(b)(1)(F) figured it out! The thing that matters here is whether or not there is an adverse person to the change made by the decedent (or creator of the alleged testamentary substitute). If the person is NOT adverse, then they don’t care – they are not giving up anything.

The Painting o 5-1.1-A(b)(1)(F)(ii)

frustrating part of the statute – “retained in conjunction with any other person who does not have a substantial adverse interest...” o The painting! Look at Gruen. o The painting was worth roughly $2.5 million. Hilda would love to say this is a testamentary substitute! The painting falls under “other” because Harry gave the painting away irrevocably and took it out of his estate. o Gruen

the father had a life estate in the painting. The gift was therefore only the gift of a future interest remainder.
Therefore, the father had possession for life. Under the estate tax, the painting would be brought back into the father’s estate for tax purposes. This is what (F)(i) is all about! This is where it came from – the “retained life estate” provisions of the tax code (IRC § 2036). Joyce thinks this tax code provision is insane. He says that the thinking behind it is outdated. o § 2036 of the IRC  if I give away a remainder and retain a life estate, then I have given away nothing and retained everything! Joyce thinks this is crazy. Because any person with any common sense would not think this way. It goes to the notion of possession. Possession was considered ownership. Change of possession is what gave rise to feudal crap. Look at the language of (b)(1)(F)(i): a person who retains for his life, the possession or enjoyment or the right to the income. So, if a person retains such a right, then it is considered as though that person has retained that entire title
Page 38 of 102

Painting
(gift causa mortis) to the property and it comes back in to the estate tax, just as it comes back in for the right of election. Its current worth is used – not its worth at the time it was “given away.” o The painting is not included in the chart, because: on the actual dates of Gruen, it would not be included. WHAT?!? o (b)(1)  the following things are testamentary substitutes … that is irrevocable OR revocable only with the consent of a person having a substantial adverse interest only if it is effected after the date of marriage! o Example: what if decedent had a second wife and a son, and a painting. The decedent leaves the painting to the son.
Decedent gives kid a remainder interest, and decedent can retain a right to possess the painting while he is still alive and
BEFORE he gets married! That way, he can avoid the problem of a revocable transfer with consent from the adverse party (the second wife). This way, decedent not only retains the right to keep the painting for his life, but the decedent can decide what to do with the painting without having to deal with the wife.
As long as he does this before the marriage, it will NOT be a testamentary substitute! It would be a revocable interest and
NO ADVERSE PARTY would be able to stake a substantial interest. Moral of the story : retain a life estate in your property
PRIOR to getting married! Creating a life estate prior to marriage helps to protect your property if: (1) you divorce; and
(2) when you die. o Note: people usually favor their former spouses and disinherit the new spouse. This is because of children from first marriages ,etc.
§ 5-1.1-A
(consists of the probate estate, plus SOME – not all –of the non probate estate)
?
Joyce: says to keep the painting out of this scenario!
Gifts causa mortis – these gifts can be revoked!
Revocable transfer. You can have a revocable transfer and not do anything about it. Ask – does the person have the kind of control over the property when the statute lists (A) through (H) in §
5-1.1-A(b)(1)?
Testamentary
Substitute
(a substitute for a will)
?
Is the painting a TS?
Gifts causa mortis are
TS under (b)(1)(A).
(b)(1)(B)

if a ring is given, NOT a gift causa mortis, and its value is under $11K, it is NOT a
TS under this statute! If its value is $20k, then
$9k of it will be part of the probate estate. (??)
?
Testamentary
Substitute for
Spouse
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Life Insurance Non probate asset. BUT, it is NOT a testamentary substitute! It does not go into the 5-1.1-A estate.
Even though it is a nonprobate asset!
TBE
Bank Account in
Own Name
Joint Bank Account
A joint bank account is
NOT a convenience account (if it was, it would move into the probate estate automatically).
A joint bank account should NOT be in the probate estate to the full extent – each tenant has an interest in half irrevocably! This means that if me and Joyce have a JT account, and he takes it all, my interest in it is irrevocable.
Covert and Lang – killers retain their own share. Moieties. Only half goes into the account as a TS. How does it get changed? If
Harry and Hilda put it in, then Hilda is considered to have supplied half of the
Non probate asset to the extent of $50k.
However, how much of it is a TS? Half of it is a
TS.
See (b)(1)(E) and (b)(2)

a TBE can only be between husband and wife. If a spouse is the surviving party, then that spouse is considered to have contributed ½.
This is part of the 5-1.1-
A estate b/c it is a TS!
But, there is more!
SEE: (b)(2)

must know who put the money into the account! Hilda has the burden of establishing that the decedent put the money into the account. If the surviving spouse is the other joint tenant, it is presumed that they each put half in. So, Harry is considered to have put half in, and Hilda is considered to have put half in.
ONLY ½ of the account is considered to be a TS if it is held by Harry and
Hilda!
BUT: this account is held by Harry and Doris. If
Hilda cannot show how much Harry put into the joint account with Doris, then it is NOT a TS!
See Boyd case!
Women’s groups – do not want life insurance to be a TS! If something is a TS and you are the surviving spouse, it will hurt the surviving spouse (Hilda will get screwed – it gives decedent the ability to disinherit the spouse by naming a beneficiary).
(E)(ii)

consider it to be a “non-NY” Totten
Trust.
Half of $50K is in the probate estate as a TS.
A joint bank account is part of the 5-1.1-A estate b/c it is a TS! See
(b)(1)(D)!
(b)(1)E)

applies to
REAL PROPERTY.
This includes stock,
Blackacre etc.
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consideration. The test is: who put the money in? If Harry put it all in, then it is ALL a TS.
HILDA MUST SHOW
HOW MUCH!
Therefore it is all a TS – it is in favor of Doris.
This is part of the 5-1.1-
A estate b/c it is a TS!
Totten Trust A Totten Trust is part of the 5-1.1-A estate because it is a TS! See
(b)(1)(C)!
Securities
Pension Death
Benefit
See (b)(1)(G)!
If this is an ERISA plan, it will come in at half .
(G)

the half that is brought back in to the estate gives the decedent the power to dispose of it as he wishes. The other half goes to the spouse.
Trust Remainder
Clothing, etc. This stays under 5-3.1!
Automobile
TOTAL
$15K of it stays under 5-
3.1!
$5K of it goes under 5-
1.1-A! It is part of the probate estate.
222.5
Probate estate = 100 and
TS = 122.5. Combine these together and you get 222.5! This is how rich this person is for determining how much he gives up to his wife.
See chart passed out in class!
W gets half of the pension plan
122.5
A: Probate estate 100
B: Testamentary substitute 122.5
Under Will
(Cy Pres applied)
C: Total estate
D: Elective Share (E.S.)
E: Intestacy for W
(Absolute)
F: Absolute Will for W
G: Absolute testamentary substitute for W
H: Total reduction
I: Net E.S.
222.5
74.2
0
0
112.5
112.5
0
100
122.5
222.5
74.2
75
0
112.5
187.5
0
The Totten Trust is in favor of Hilda. So it is
$40k in favor of the spouse as well!
W gets half of the pension plan
112.5
Under Intestacy
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*
Elective Share Formula:
(1) A + B = C
(2)
C ÷ 3 = D*
(3) E + F + G = H
(4) D – H = I
D = 1/3 of C where C is over $150,000
D = $50,000 where C is between $50,000 and $150,000
D = C where C is $50,000 or under
C.
Waiver
Hypo: if Husband wants to keep the painting, he can use waiver to get the Wife to agree that she will not keep her right of election! If the waiver is valid, Wife will not have a right of election! What if he has her waive her right of election only with regard to the painting? He can do that, too. She can exercise the right of election only if one of the kids is not alive, etc… Husband can create the waiver. What if the couple is two MEN?
They are not technically married in NYS, but they create contract giving them all the rights under all the relevant statutory sections of the EPTL. Additionally, one “husband” asks the other to waive. This is okay too! Contractual! There must be a contract in order to have a valid waiver! Two situations: (1) heterosexual contract is MARRIAGE; (2) homosexual contract is not a MARRIAGE in NYS, but it can be a long drawn out contract that they draft and execute.
1.
Cases

Geddings

full disclosure about your spouse’s assets is necessary for a valid waiver.

Davis

disclosure of a financial situation is not required as a condition as to the validity of a waiver agreement! (NYS)

Greiff
 disclosure is necessary.
2.
EPTL § 5-1.1-A(e)  p. 84 of Supp.
3.
Handout in class dated 3/23 :

Ann asks me to explain the rights that she and Sam would have in each other’s assets if there were no release of rights in the prenuptial agreement.

If you read Greiff, it is clear you must disclose.

But does Ann have to disclose? Does Ann have to tell Sam everything (analyze the NYS Bar Journal article)?

I could tell Ann that to avoid any possibility of future litigation, she should disclose. So does she have to tell him down to the penny? Probably not.

Greiff

there was nothing in the case that would shift the burden to show that everything was fair and reasonable. So basically, the
Appellate Division said that the court was presuming fraud and unfairness, b/c the people were married (or betrothed – prenuptial).
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They were in a “confidential” relationship, and such parties are subject to a different rule than if they were otherwise NOT in a confidential relationship. The App Div says the agreement was good. The Court of Appeals reverses and sends it back.

Between Ann and her husband, ask if there is some inequality.
Particularized fact-finding is stressed by Judge Bellacose in Greiff.
He gives a frame of reference on p. 166 – “a specific frame of reference should be whether, based on all the relevant evidence and standards, the nature of the relationship between the couple at the time they executed their prenuptial agreements rose to the level to shift the burden to the proponents of the agreements to prove freedom from fraud, deception or undue influence.”

Joyce : he was looking for an answer to this question along the lines of Greiff. You don’t have to disclose everything, but you
SHOULD to prove freedom from fraud, deception or undue influence. The burden allows the fact-finder (judge OR jury) to say that if the fact-finder can’t make up his/her mind, he/she decides in accordance with the burden. If the burden is on X to show freedom from fraud, etc., then X might likely lose.

Geddings

tells what fair disclosure is. What is fair disclosure in NYS? We don’t have a statute to tell us. Instead, we have
Davis and Greiff. Joyce thinks we should come up with a statute to tell us what fair disclosure is. But then there are some other issues that would be raised by creating such a statute. First – are you going to make lack of disclosure in and of itself grounds for invalidity, or should we also look at the agreement to see if it is fair? When do we look at the agreement to see if it is fair? The
UPC takes the position that disclosure is not enough, but that you must also examine unconscionability at the time of execution of the agreement (rather than at the time of death).

Tell Ann, no matter what, that you cannot guarantee that this agreement will be enforceable! You cannot guarantee that the waiver will be upheld! Most of the time it works, but it is not foolproof. As Judge Bellacosa said in Greiff, the law favors this time of waiver agreement.
 Suggest any alternatives that would shield Ann’s assets from her husband on her death. She is not concerned about divorce, but she is interested in making sure her existing children get her assets – she has a valuable “antique” car she wants her daughter to have.

Look at 5-3.1 for the car!
The spouse retains $15,000 and the testator cannot dispose of a car worth more than that. Tell Ann that if she wants to give the daughter the car, she has to give it to her before she dies!

Unilateral ploy

Ann has $3 million. She should put that money in trust irrevocably. She should then live off the income and retain a life estate for her life, and retain a special power of
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appointment over the remainder to decide which of her kids will take care of it. Then she doesn’t have to worry about the waiver agreement! Don’t worry about the estate taxes – different issue if she gives husband something and then that involves a marital deduction. Also consider 5-1.1-A(b)(1), which says (A) through
(H) does NOT include property included BEFORE the marriage!
4.
Disinheriting Children. Hypo :

T has kids. They are ages 2, 4, 6, 8, 10. T has a girlfriend. T dies and leaves everything to the girlfriend in his will.

If kids can get the will thrown out, then they can take the entire estate in intestacy. But they must have GROUNDS to throw the will out. Grounds are: improper execution, incapacity, fraud/undue coercion. But what if we do not have any of those grounds?

Can the decedent disinherit ALL of those children, in favor of giving the property to his girlfriend?

Massachusetts

see L.W.K. In L.W.K., the father cannot really disinherit his kids. He can only disinherit to the extent that the money is in excess of his support obligation to his children. See page 170 and 171 of supplement. The father was not supporting his kids in this case! Joyce reads this case – if there is a support decree out there, then the obligation must be fulfilled to support the kids. But if there is NO support decree, then the parent can disinherit their kids and there is no obligation to support them!

New York

is there anything that would indicate that in NYS, you cannot completely disinherit your children? Suppose you go into court and say that there is a duty to support your kids during your lifetime, and you should not be able to disinherit them at death. Your opponent will say there is no authority for that – there is no duty to support once a person is dead! The estate (the beneficiary) has a duty to support the kids. o § 5-1.1-A 
this is only for the spouse! There is nothing like this statute for children! o § 5-3.2

this statute deals with kids. It weakly protects children’s interests. It also serves to protect the testator’s intention. This statute is NOT like 5-1.1-A. 5-1.1-A says that if you have a spouse, you cannot disinherit her no matter what .
But 5-3.2 does not say this! This statute gives rights to afterborn children. Why does it do this? Because it is what we think the testator would have done. We assume that the testator forgot to do something and would have done it. This is not against the testator’s intent, it is furthering what we assume is the testator’s 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
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against public policy to deprive the kids of their parent’s property).

Louisiana

is the only state that protects kids from intentional disinheritance. French law influence. Cannot dispose of property without going through kids.

NYS and hypo
: T’s kids have no right to be supported out of the money from the estate beyond what is necessary to support them.
The kids’ only rights are under 5-3.2. What if T is wrongfully killed? The kids have the interest here if the father is wrongfully killed. But it doesn’t make any sense that they could be disinherited!
 § 5-2 
what happened to this section?! It is NOT in the EPTL.
This article is reserved for the Family Maintenance Act if it is ever passed. This Act is a statute that is prevalent in commonwealth countries (New Zealand, Canada). It provides for flexible family maintenance out of an estate. It really allows that even if there is
NOT a support decree, on a fact-based determination made after death, the court is required to hold a hearing to decide whether children should be given support from decedent’s estate. But this
Act was not passed because the courts do not want legislation like this! They don’t want to act like Family Court. Also, it is believed that you have the god-given right to disinherit your children if you wish to do so.
 § 5-3.2
5.
Page 142 of Supplement :

In Year 1, A is born to T. T executes a will in Year 2. In year 23, a1 is born to A. A dies in year 25. T dies in year 26. o A1 is NOT entitled to protection under 5-3.2! This is because
5-3.2 only protects people born AFTER the execution of a will!
And A was born BEFORE the execution of the will. o A is born after the will (A is born in year 3). The statute does
NOT speak to grandchildren. It only speaks to children. 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. This is called derivative protection – since A would have been protected, then A1 is allowed to be protected.
6.
Page 142 of Supplement :

Prior to 5-3.2, § 26 of the Decedent Estate Law said that if the kid is born AFTER the making of the will, it only applies then. It also only applies if the kid is provided for or mentioned in the will.

If someone said in their will, that they wanted their life insurance to go to their kid, then it is enough to negate the application of 5-
3.2.
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
Must decide if the testator intentionally or unintentionally omitted the children from his will. If he provides for them IN the will, or even if he just mentions them, then it is some indication of the testator’s intent.

Glomset  (p. 197 of casebook). Issue over whether you could bring in outside evidence to determine intent. However, this type of case does not arise in NYS b/c the legislature has effectuated its purpose by saying that the kids are protected unless they are mentioned in the will or provided for outside of the will. Despite the clear intention of the legislature, the kid still cannot take because the kid was not mentioned inside the will or provided for outside the will.

Suppose that I have a life insurance policy. It says that when I die, the proceeds go to my son, Jon. After the policy is executed, I have another kid, Jane. The decedent really does not have any other money. Jane says she is an afterborn child and she should get rights to the life insurance. Jane does NOT get any of the life insurance! What about § 5-3.2? § 5-3.2 ONLY APPLIES TO A
WILL – not to life insurance! This shows us how dated § 5-3.2 is.
It is an outdated statute. It does not take into account the nonprobate revolution of the 20 th
century.
7.
Page 142 of Supplement :
T made a will in 1997. At that time he had a wife (W) and two kids, X and Y. Later, child Z was born. T dies in 2001, survived by W, X, Y and Z. X and Y are adults. Z is 14 months old. His net estate is valued at $100,000.
Who is entitled to what in the following situations:
 T’s will provides: “I leave my entire estate to W. She will take care of everything.” o L.W.K.

this deals with disinheriting children with their right to support (child Z). Forget this for now for this question… o § 5-3.2 
threshold aspect of 5-3.2: you must be able to get by the provisions of the statute that say you don’t get anything if you are not provided for by settlement or by mention in the will. What about that for this situation? There is nothing to indicate that Z is provided for outside of the will. Ask: is Z mentioned in the will? NO – Z is not mentioned! How would
T mention Z if T made the will before Z was born? T could say “his children.” T said something about W taking care of everything. Doesn’t this include a situation where there is after-born children? If so, then Z is mentioned in the will.
HOWEVER, Joyce says this is not enough for Z to be mentioned in the will! o Z falls within the statute b/c he is an afterborn child. o Back in the day, under § 26, Z would take his intestate share.
That would have been: W gets the first $50,000 + ½ the residue
Page 46 of 102

(which his $25,000). And the kids get the residue in equal shares. So he would get $8,333. o Now, under 5-3.2(a)(1)(A) , X and Y were alive at the time the will was executed! So under 5-3.2, Z gets NOTHING. This is because X and Y do not get anything either! If the already living kids don’t get anything, neither will the afterborn child! o RULE : if there are other kids living at the time the will is executed, then the afterborn child gets nothing if the other kids get nothing! o What is the legislature thinking? This statute is not about fairness (duh, Jaiy – that is a 5-1.1-A argument, more along the lines of Family Maintenance Act stuff). Instead, if the testator left out kids who were alive at the time of the will execution, then the afterborn child should not be included because it is the testator’s intent. o Examples of where this does not make sense:

Decedent gave all sorts of testamentary substitutes to kids X and Y before he died.
But Z did not get anything.

X and Y are pains in the ass!

Kids are millionaires in their own right and decedent left them out of his will. o So what is this statute about? The legislature is thinking that if nothing is provided for in the will for kids who are already living at the time the will is executed, then it is likely that any afterborn child will be treated the same way, and the surviving spouse will “take care of everything.” So afterborns do not receive anything.
 T’s will provides: “I leave $1 each to X and Y; the residue to W.” o Will Z get 1/3 of $2? The three children may each share equally in the $2. o Why doesn’t Z get a dollar? Why does Z get 67 cents? o 5-3.2(a)(1)(B)(ii)

says that you divide the pot by the number of children living at the time the will was executed PLUS the number of afterborn children! This means that $2 is divided by
3. o Should people leave their kids $1 in their will to basically cut them out? o 5-3.2(a)(1)(B)(iii)

the legislature saw that in a situation like this, Z would get 67 cents. So they passed (a)(1)(B)(iii) , which looks at the testator’s intent. What was the testator’s intent to give X and Y $1 each? Perhaps they are being disinherited. If this section of the statute applies, then Z will get $8,133.
Basically, if the testator is spiting his kids by leaving them only
$1, then Z will get his intestate share. BUT – if the testator spites his kids and does not mention ANY of the kids in the
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will, then Z will get NOTHING! This is ironic, because leaving them out completely is the biggest spite of all, yet giving them $1 enables Z to collect.
 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.” o GOOD EXAM QUESTION PER JOYCE! Many issues here. o What does Z get? o What are the rights of the parties? o Z’s rights depend on W. So now we look at W’s rights in this situation. Does W have rights under 5-1.1-A? The rights must be given to W absolutely! But here, T gave W rights in a LIFE
ESTATE. She does not HAVE to take her life estate (this is
VERY IMPORTANT – make sure you know that W does not
HAVE to take her life estate!!!!!!!). W has an election to take what she was given (a life estate in $100,000), OR she can take
$50,000 cash. Suppose she takes the life estate. What are Z’s rights? Z’s rights are a 1/3 interest in the life estate. What if
W takes the $50,000 in cash? Look at 5-1.1-A! She cannot keep both the life estate AND the $50,000! W is treated with respect to the life estate as though she predeceased T. The remainder accelerates and X and Y get $50,000 outright. SO –
Z’s rights will be 1/3 of $50,000! Z’s rights all depend on what
W does.
8.
§ 5-3.3

Joyce used to teach this section next. But now this statute has self-destructed. Basically it said that if your kids contest your will, and you say that all of your property is going to charity, then it WON’T go to charity! However, if the testator said then all of his property will go to his girlfriend if the kids contest the will, then it WILL go to the girlfriend!
What is the policy behind this section? Why should a person NOT be able to give his estate to charity, but to his girlfriend, if he had kids? Because a person on his deathbed cannot buy entrance to heaven!
IV.
A.
Execution of Wills
1.
EPTL § 3-2.1
First, the definition of a will is made clear under § 1-2.19.
§ 3-2.1 says that there must be certain formalities in order to have a will!

A will is a written instrument made or prescribed by 3-2.1.
This is circular with 1-2.19! In terms of a definition, the only meaning we need is that a will is an instrument to take effect upon death and is REVOCABLE during his lifetime!
There must be formalities according to 3-2.1.

Take a look at Gruen again. Revocability.
Page 48 of 102


Joyce says that 1-2.19 is a lie. This is because it tells you what a will is, but it doesn’t mean it! You need to have 3-
2.1 to make it a will.

Two track types: o Solemn Form: Probate

will. If you die on this side, in order for people to take under your will, the will must be brought to court and it must be noticed to the people who would take if the will was thrown out, they must be given an opportunity to attack the will. If after a certain period of time no attack is made, then the will is approved and the property is distributed. If the executor of the will dies, and you want to get at all the stock in the will, you cannot take until the will is probated. o Common Form: Non-probate

if the person dies, and the property is not kept in will, and instead it is kept in trust, then as soon as the person dies, you do not have to worry about the will being probated!
You can get in to get the money asap. o Because of this two track system, there are different formalities that must be followed. We are looking at the probate track (wills). o Two aspects of looking at wills:

What is the maximum way to execute wills, so that no matter where the person lives when they die, the will will be effective?

What is the minimum way to execute wills?
What can you get away with?
2.
Morris v. West (pg. 212)
THE ISSUE IS PRESENCE! Texas case. Testator signed in front of two witnesses. The witnesses go to a different room and sign there (not in the presence of the testator). In Texas, the will was thrown out.

In NYS, the will would be GOOD.

What do you do in NYS when you execute the will? Do you tell the witnesses they can go wherever they want to sign the will? NO – the will might be executed in NYS, or the testator might have a lot of property in NYS, but when he dies, he no longer has property in NYS or does not live in NYS and now lives in Texas. We have to figure out if the will is good in Texas if it is good in NYS.

Under the Texas statute, the witnesses have to sign in the presence of the testator. In Morris, the witnesses did not do this, so the will was thrown out.
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
In NYS, our statute only requires that the testator has to sign in the presence of the witnesses. BUT – the witnesses do NOT have to sign in the presence of the testator.

So the question is, if you are signing in NYS, what do you do to make sure the will is acceptable in Texas (if, for instance, the testator dies in Texas?). Just make sure that everyone stays in the room until the will is finished being signed!

What is it that the Texas legislature thinks is important, but that NYS doesn’t care about? What is Texas afraid of?
Texas wants the witnesses to sign in the presence of the testator because it is concerned that the witnesses will change the will . Texas inherently does not trust witnesses, whereas NYS does.
3.
The Signature Requirement (pg. 216)
Suppose a testatrix is in weak condition and cannot physically sign her will. Only two people are available to witness the will. What problems and solutions are presented under § 3-
2.1?

Sometimes it is only possible to do the minimum.

Who signs the will? The TESTATOR signs.

What does the testator sign? Their full name.

This hypo causes a problem. You need two witnesses.
Can’t a witness sign for the testator if the testator is too weak? Sure, but you need two witnesses! This type of signing is called a proxy signature. Any person who signs a testator’s name shall NOT be counted as one of the necessary witnesses. So now what do we do?

The proxy

signs the testator’s name. Underneath that, the proxy signs her OWN name and writes her address.
Then, the witness signs.
 Roy’s solution 
get one witness to sign for the testator.
Then, tell the testator to acknowledge that signature as her own. The testator does not have to actually SIGN, they can
ACKNOWLEDGE.

Joyce

even if the testator cannot sign, but drools on the page, the drool can be their acknowledgement!

Joyce

says that the testator just has to acknowledge what is written as their signature.

Bernatowicz

issue of whether the signature was assisted or controlled. This just means, is it the testator signing or not? Or is it an attempted proxy signature? The issue is important in Bernatowicz b/c a proxy signer cannot count as a witness and the proxy must sign his own name, and also, the proxy must be DIRECTED by the testator. The
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proxy cannot just pick up the testator’s hand and sign for him! The proxy MUST be directed by the testator to sign on his behalf! In this case, it really was the testator’s signature, he just needed a little help from his friends (to physically sign).

If you have a proxy signature, it says that the person who signs for the testator has to sign his own name and cannot count as a witness. What else does the proxy signer have to do, besides sign his own name? He must also sign his address! This is included in the statute. What happens if the proxy doesn’t sign his own name? Is the will any good? What if he just puts his address down? The will is no good! § 3-2.1(C). This statute says: if you forget to sign your name as the proxy, the will is NO GOOD; and if you forget to record your address, the will is STILL
GOOD. But the statute says to put your address down!
However, the statute then goes on to say that it doesn’t make any difference whether the proxy records his address.
Joyce says this is a stupid statute

4.
Location of the Signature (pg. 216)
Does § 3-2.1 indicate that NYS adopts the “dreary, minority view?”

The signature of the testator has to come at the end of the will. Where is the “end” of the will? o Majority

says the “end” is the logical end of the will o Minority

says the “end” is the physical end of the will

NYS

3-2.1(a)(1)(A) or (B) o These statutes were created because of a specific case. It used to be that the entire will was thrown out if anything came after the testator’s signature.
However, the legislature then said it was unfair that the matter preceding the signature should be thrown out, as well as the matter following the signature.
So these statutes were created. o (B)

says that if anything is added to the will physically BEFORE the signature, but it is put on
AFTER the will is signed, then it is thrown out. o (A)

if the testator adds something after his signature, and it was there at the time he signed, then we can still probate the first part of the will,
HOWEVER, except, in the discretion of the court, the whole will can still be thrown out if the matter that comes before is so incomplete as to be readily
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comprehensible, or if it needs to be read in conjunction with what was added. o HYPO from class: Joyce and the “greeting card” style will (looks like the way I write out greeting cards, front page, right inside page, then left inside page). The first and third pages are okay to be probated b/c they are separate and complete dispositions. But the second page is thrown out!

When the will is signed: o If it is one page, then it is typed up and signed and witnessed at the bottom. o What if it is two pages? The second page is a new piece of paper. Don’t make a greeting card will! o What if a guy creates a will on an index card? He has to sign along the side b/c he ran out of room.
The court will throw the will out!

Suppose you have a situation where the testator leaves
Blackacre to C and GC. T says to see an attached list for his jewels. Then T signs. After the signature, T writes:
“PS – I want Blackacre to go to C for life, then remainder to GC.” On the separate page, which is physically attached to the first page, T says the ring is to go to X and the necklace is to go to Y. What result? o Blackacre will NOT go to C for life and remainder to GC! This is a violation of (B)! o The matter preceding the signature can be given effect under (A), despite the fact that there was a matter after the physical signature! HOWEVER, except in the discretion of the Surrogate, the matter that comes before will not be given effect IF it is necessary or so incomplete as to subvert T’s intention. (Need to read the rest to figure out the first part of the will). o Suppose the “PS” was added after T signed. The
“PS” is NO GOOD, no matter when he adds it!
AND, (A) will not even apply. (A) only applies if the stuff after the signature was THERE
BEFORE THE TESTATOR SIGNED!
o Some states presume that anything that comes physically after the signature has come chronologically after the signing. NYS DOES NOT
DO THIS! o C and GC will share Blackacre in a Tenancy in
Common. o What about the jewels? The will says to “see attached.” Differing views on this issue:
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
The sheet does not physically follow the signature. How can it not physically follow the signature? Theoretically, the page is
“attached” where it says “see attached.” The page therefore is incorporated by reference.
 Joyce: although most courts follow the doctrine to permit unattested documents to be incorporated, it is antithetical to jurisprudence! We should require strict adherence – Four Corners of the Will! The courts should not allow unattested papers to be included! “Incorporation by reference”

NYS

incorporation by reference is a (B) issue.

Codicils must be executed in the same manner as a will in order for it to be considered legitimate!
5.
The Execution Ceremony (pg. 217)
Would following the steps outlined on pages 217-18 be satisfactory in NYS?

When does the testator sign? Before the witnesses sign!

Witnesses: o Attest. Witnesses observe! When they attest, they watch to see what happens. o Subscribe. Witnesses sign! When they subscribe, they give evidence as to what they saw .

When is the testator supposed to declare the document as his will? After he signs, logically. This is argued in
Bernatowicz. But the argument is tossed out, under 3-
2.1(b). The procedure for the execution need not fall under precise order, so long as the ceremony continues. This can be said to be good enough authority for the court to hold that even though T is supposed to declare the will to be his will after he signs, it is okay for T to do so BEFORE he signs. However, this statute was added in the event the witnesses sign first! In the past, when witnesses signed chronologically before the testator, the will was thrown out.
But the legislature thought this was too picky – so it passed
3-2.1(b)! o Joyce: for practical reasons, it is best for the testator to declare the will as his will both before AND after he signs! This is a good thing to do in practice!

Pirozzi

the testator in this case did not declare the will to be her will. Therefore, the will was thrown out in court.
Joyce picked this case to show us the phenomenon of why people would argue over such picky things. The reason is
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money! If the will is thrown out, then the person stands to gain a lot of money under intestacy laws. Most of these cases settle.

Frank  this case is about a testator’s desire to have witnesses sign his will. The testator never said a word about whether the document was his will. The lawyer said it was his will! The court held this was okay.

Potentially, in these three cases (Frank, Pirozzi,
Bernatowicz), the wills would have been thrown out.

Ranney

in this case, the witnesses did not sign the will.
Instead, they signed the self-proving affidavit. This 1406 affidavit said that the witnesses did everything they were supposed to do, etc. The affidavit is not required. In NYS, the sole function of the affidavit is to make things formal.
It allows the court to say that if no one objects, then the court does not need to bring the witnesses in when the will is probated. How exact do you have to be? The court held that substantial compliance is enough! The witnesses signed the affidavit, not the will! The witnesses have to subscribe! Substantial compliance

if there hadn’t been an affidavit, then the will would have been thrown out. But the witnesses signed the affidavit, and the court held that it was enough to find the will valid. o Doctrine of Substantial Compliance

debated over in the courts. The Fourth Department does not use the phrase “substantial compliance.” The court says that it looks like the parties did everything they should have done; it doesn’t look like there was any fraud, etc., so the will is VALID, and by taking this position, the court is in effect using substantial compliance.
6.
Witnesses (pg. 219-223)
Joyce: prefers to use THREE witnesses!

Just in case you wind up in a jurisdiction like CT or VT, where you need three.
Make sure your witnesses are logically chosen. Make sure they can attest and subscribe!
 Don’t pick a 98 year-old witness for the signing of a 48 year-old’s will! Don’t pick a 2 year-old witness either!

Consider things like: age; ability, etc.
PROBLEM – Interested Witnesses and § 3-3.2:
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).
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T is also survived by unrelated friends, A, B, D and 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

Pay the three residuary legacies first. This adds up to
$31,000. Z gets $5,000 as written.
Who takes what share if :

A and B are the only two witnesses? o First: it is WRONG to say the will is invalid! o 3-3.2

the overriding purpose of this statute is to say that an attesting witness is a competent witness!
X, Y and Z will still take under the will, b/c it is a good will. The fact that A and B are interested does
NOT make it invalid! o 3-3.2
 we are not going to throw a person’s will out JUST BECAUSE the witnesses are interested! o 3-3.2(a)(1)

any disposition is void, UNLESS…
Since A and B are the only two witnesses, then the disposition is VOID. The will is still good. o What happens to the money left to A and B
($6,000)? It goes into the residuary share, which will go to Z. If ever any money/property is left to someone and the gift is voided, then it goes into the residuary clause!

A, D and E are the three witnesses: o 3-3.2(a)(2)  subject to paragraph (1), the disposition is effective unless the will cannot be proved without the testimony of the witness of who gets the disposition! It is void unless there are two
NON-interested witnesses! However, you are not out of the woods just because you are okay under
(a)(1). First we have to decide if we need your testimony. If you have a supernumery witness
(witness A), he is okay unless you need his testimony. Supernumery means the witness is an extra witness (only two were needed, but there were three) and the witness is interested. D and E are
NOT interested witnesses. o Hypo : A, B and E. Two of the three people are interested witnesses. A has an idea – why don’t one of us renounce?! A wants to get B to be uninterested, so that the other two witnesses are
UNinterested. This won’t work though – § 3-
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3.2(a)(1) says that even though B renounces, B is treated as though he predeceased the testator. B is still there though at the time the will is executed . B is still interested at the time the will is executed – this is the catch! B becomes uninterested when testator dies. Joyce says this shows that whenever the statute applies to void anyone of their interest, its application has failed. Joyce says DON’T USE
INTERESTED WITNESSES! An interested witness will not receive anything from the testator’s estate when the testator dies. B renounces, but B is still an interested witness!

X (but none of the other beneficiaries) is one of the two witnesses? o Let’s say that E is the other witness (E is uninterested). X gets $10,000 under the will and X is a distributee. o (a)(3)

if you have a person who would be a distributee if the will was not established, that person is able to receive their intestate share.
Basically, this statute just says that the person receives the smaller of the two shares! X’s intestate share is $12,000. Under the will, X gets $10,000.
X will end up getting $10,000 under (a)(3) because it is the smaller amount! o X’s disposition is void if X is a witness. However, if he is an intestate distributee, he keeps the lesser of the two. X’s share drops into the residuary if his disposition is void. The statute just says that X gets to keep his money – the money doesn’t go from X, to the residuary, and back to X.

Y (but none of the other beneficiaries) is one of the two witnesses? o Y has $15,000. Y’s intestate share is $12,000. Y gets his INTESTATE SHARE – $12,000! The leftover $3,000 goes to the residuary. o Suppose A, X and E are the witnesses. E is uninterested. A is interested. What about X? Does
A get a shot at keeping his $1,000? If X is not interested, b/c all he gets is ___. 3-3.2(a)

at least two other interested witnesses who receive no beneficial disposition. X does not lose automatically, he is interested throughout (???).

Z (but none of the other beneficiaries) is one of the two witnesses?
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o Z is an intestate distributee. Z is the residuary legatee. Z gets the lesser of what he gets under (1) the will – $5,000; or (2) intestacy – $12,000. Z will take under the will, per the residuary clause. Z gets
$5,000 (the lesser share). o 3-3.2 only speaks to a person who is interested in getting a will probated – NOT to a person who is interested in getting a will thrown out! o What happens to Z’s residuary legacy? Since he is only one of two witnesses, his residuary legacy is voided. What happens to the residuary legacy then?
It goes in intestacy! Z must reach down into intestacy and get his $5,000. § 3-3.2(a)(3)(B) says that Z’s residuary legatee would be decreased if it was over $12,000, and any amount of $12,000 would be taken from him and put into the residuary.
Suppose Z (but none of the other beneficiaries) was one of the 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 ($26,000 is in the residuary) o The statute says Z can only keep the lesser of
$26,000 or $12,000. The remaining $14,000 goes to the intestate distributees! How is the $14,000 divided in intestacy? o Who gets the $14,000 in intestacy? o Suppose that Z had predeceased the testator. The
$14,000 would be divided three ways. X gets a third, Y gets a third, and Z’s third goes to his kids. o Suppose that Z didn’t have any children. The
$14,000 would go right to X and Y in half. o But Z has kids and Z is alive! Distribute the money as though Z was not a distributee. Z1 and Z2 don’t get a shot at the money, and the money all goes to X and Y. o Joyce

stresses knowing the purpose of the statute when deciding who takes in a situation like this.
When in doubt about what the statute is telling us to do, look at the purpose behind the statute! Does it better serve the purpose of the statute to give all of the money to X and Y, or to give the money to X, Y and Z’s kids? Purpose – get rid of the incentive for witnesses to lie! Z still has an incentive to lie to get his kids the money. So the money should be split between X and Y to be equitable. Argument – Z
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does not have the same incentive to lie as though he would keep the money himself, but he has some incentive to lie.

Pascale  malpractice claim against lawyer. Two people executed mutual wills (H and W). H’s will says that he leaves everything to his brother and wife’s sister. W’s will says the mirror thing. The idea is that H and W will split their estate and give half to each person… W dies. H changes his mind about half and half. H wants to change his will. The brother and sister come to you and say that the deal was that H and W were going to make the wills in such a fashion, and they were also going to make an agreement NOT to revoke! The agreement was not made.
The brother and sister sued the lawyer for not putting the agreement in writing. The judge says that they cannot sue the lawyer because they don’t have standing. More specifically, the brother and sister were not in PRIVITY with the lawyer. o Suppose a lawyer puts a provision in the will dealing with the marital deduction. But there is no deduction, and a big estate tax has to be paid. Now, the beneficiaries of the estate sues the lawyer who drafted the will. In NYS and CA, the beneficiaries win because they have PRIVITY. o PRIVITY

the testator is in contractual relationship with the lawyer. The beneficiaries stand as successor to the testator, so they have privity with the lawyer. NYS REQUIRES
PRIVITY. o Pascale

the beneficiaries were not in privity.
Only the testator and the estate were in privity. The estate was not hurt in this case. The estate did not lose anything. Most states do NOT require privity, but NYS does! o Suppose A and B get nothing. They ask me to do something for them. Lawyer should ask, who drafted the will? Did the lawyer know they were interested witnesses? Yes, but the lawyer let them witness anyways. That lawyer engaged in malpractice, so A and B think that they are entitled to sue for their share. In NYS, can A and B sue the lawyer? A and B can only sue the lawyer if they have PRIVITY. o Pascale  see page 195 of Supplement. Court discusses hypothetical situation where they would
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look to the Prudential case for authority on how to decide this case. o Presence – have everyone present in front of everyone. This is not always necessary in some jurisdictions, such as NYS. In NYS, the witnesses don’t have to be in the presence of the testator when they sign. Nor do they have to be in the presence of each other.

Example: on Jan. 1 st
, T signs in front of witness 1. On Feb. 2 nd
, T signs in front of witness 2. This is NO GOOD – must be done within 30 days!

Example: same as above, and then witness 3 signs on Feb. 16 th
. The will is good!
Witnesses 2 and 3 signed within a 30 day period.

Joyce

says that the requirement of 30 days should be repealed.
CHECKLIST FOR WILL EXECUTION PROCEDURE:
1. Request for attestation

Ask witnesses to watch
2. Publication #1

Ask T if it is his will and wants the witnesses to be his witnesses
3. Signature by testator

Testator signs in front of witnesses
4. Publication #2

Ask if T requests that the instrument be his will
5. Request for subscription

Ask T if he requests witnesses to sign the will
6. SUBSCRIPTION

Witnesses sign
7. Read attestation clause

See top of pg. 378 – T signed at the end. Then there is an attestation clause.
There is room for three people to sign as witnesses. Witnesses sign below the testator. The attestation clause is not necessary for the validity of the will.
However, it will be the last formality of the will! One of the witnesses will read it out loud and the others listen. It awakes the witnesses to what should have happened. It is also used to refresh their recollection at trial. It can be used to impeach at trial! Caselaw in NYS says that if there is an attestation clause, it is presumed that the will was executed properly.
8. 1406 affidavit

If you can get a notary, sign this affidavit where the witnesses and testator say they did everything right. They then sign their names in front of the notary and their presence can be dispensed with when the will is probated)
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V.
A.
Chart on Page 197 of Supplement
1.
Lifetime trusts

“living trusts.” These trusts are revocable inter vivos trusts .

This chart is about funding trusts during lifetime – use it for lifetime trusts, only !

The formalities for establishing revocable trusts are outlined in this chart. Both columns are really wills. A revocable trust should legally be a will – it is equivalent to a will. But legally, it is not.
 EPTL § 7-1.17

deals with lifetime trusts. They shall be in writing; acknowledged; signed. There can be a “PS” in a trust! Do you have to have witnesses? You have to have at least two witnesses. If you do it by declaration, it must be notarized. It doesn’t say whether you have to have a witness if done by declaration, but if you have a notary, then you are, in effect, having a witness. The statute says if you don’t have a notary, have two witnesses. Witnesses can be interested!
 EPTL § 7-1.18

why not just have trusts, instead of wills? This statute also deals with lifetime trusts.
TWO TRACKS:
Will
(plan)
Track I
No funding
Will
(pour over)
No Funding
Track II
Revocable Trust
(plan)
Funding
Plan : “To spouse and if spouse predeceases, to issue by representation (disclaimer into trust).”

The point of the TRACK THING: Joyce just wants us to recognize that if you have a revocable trust plan, the plan has to be funded. Whereas with a will, you do not have to fund a will!

Life insurance

can go on its own. It has its own designations. Life insurance can pass outside the will. You could, however, make the life insurance payable to your estate. So then the will plan takes it over. You could make the life insurance payable to your trust, so it will go Track
II – and go into the trust.
 EPTL § 7-1.17

Execution, amendment and revocation of lifetime trusts.
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o Two types of trusts: (1) by transfer; (2) by declaration. By declaration is most popular. o It has to be in writing o It has to be signed o It has to be notarized

EPTL § 7-1.18

Funding of lifetime trust. o First sentence: says you have to have a transfer for it to be a valid trust! o Both types of trusts have to be funded ! o Section (b) is about in the case of a trust where the creator is the sole TE o Gruen applies here – what type of transfer would have to be made if you weren’t setting up a trust? If
Joyce wants to gift Blackacre to me, how would he do it? He would give me the deed. I would want to record the deed, to make sure that Blackacre is mine, but recording the deed is not necessary for the validity of the transfer. Suppose that Joyce wants to gift some cash to me. He writes me a check. The transfer is valid. Suppose Joyce wants to gift me some stock. He can write out on a piece of paper that he is giving me his stock. He just has to do something that gets title out of him and to me –
TRANSFER. o If you don’t fund the trust during lifetime, it won’t be funded until death (from a pour-over will). And if you don’t fund the trust during lifetime, then this statute (7-1.18) does not apply! o Common law tells us how to make a transfer. o Suppose you make yourself the sole trustee? Then how do you make a transfer? See section (b) of the statute! It tells us how. There has to be a transfer,
PLUS the recording of a deed; or completion of the registration; or a written assignment describing in particularity the asset. EXAMPLE: Joyce takes money from his checking account and changes the name! He says that the money now belongs to the
“Ken Joyce Revocable Trust.” o It depends on how you want to leave your property.
If you want to do all the work, you will create a revocable trust and a pour over will. This keeps your kids from having to do all the work after you die. If you want the kids to do all the work, then you would go with Track I and just create a typical will (plan).
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o What about the $2.5 million painting? You want to put the painting in trust, and you want to be the sole trustee. What do you do? See section (b) of the statute. You can describe the asset with particularity and create a written assignment. Make sure that the assignment is not RECITED
(otherwise you violate section (a) of the statute), but just create the ASSIGNMENT. You don’t have to record an assignment if it is a PAINTING. BUT –if the asset is something that can be recorded (such as
Blackacre), then you have to also RECORD the assignment. o Joyce: the statute slightly contradicts itself when it comes to assignments (recited assignments vs. real assignments). When you do an assignment, you do an assignment! This is different from RECITING an assignment (as it is discussed under section (a)).
You cannot RECITE an assignment for purposes of this statute; otherwise, you do not have a valid transfer. o A trust requires a corpus! This means that a trust has to be funded. You don’t have to fund a trust during your lifetime (you can fund it through a pour-over will, and then the trust is funded at death). o Formalities are just safeguards. You never know when something might fail, and a safeguard is there to help. o Once you put property into trust, it is in the NON-
PROBATE estate. However, in a Totten Trust, a will can govern by revoking the trust! You can revoke a trust by your will. 7-1.16 says that a lifetime trust shall be irrevocable unless it says it is revocable, and unless it can be revoked or amended by an express direction.
VI.
A.
Revocation by Subsequent Instrument
1.
EPTL § 3-4.1
Your client calls you and wants to revoke their will. You tell them to come and see you downtown. Follow § 3-2.1. Revocation of a former will by a subsequent will. Why not just tell your client to tear up the will? Because we want to abide by the rules, and even though you can tear up a will to revoke it, we want to be careful and prudent. Also, you don‘t want to die intestate.
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3-4.1(a)(1)(B)

you can revoke by a subsequent instrument, even if it is not another will. You can create a writing with the testator’s clear intention to revoke. You MUST follow 3-2.1 formalities!
Why would you rather do this, than tear it up the will? Because you want to get it on the record! Also, avoid the problem where someone could argue testator ripped up a napkin (not his will).
3-4.1

splits into two parts:
(1) Revocation by subsequent instrument; and
(2) Revocation by physical acts.
2.
PROBLEMS FROM SYLLABUS (page 198)
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?
 T’s will is NOT revoked. T has to properly execute the revocation. In order to do so, T must follow the 3-2.1 formalities. Furthermore, T was not in the armed forces, etc., to make it a holographic will under the requirements set forth in EPTL § 3-2.2.

What about 3-2.2? The writing is a holographic will within the meaning of this statute. It is written and NOT executed within the formalities prescribed by 3-2.1 The only way you can use this statute is if T is a mariner at sea; a member of the armed forces; etc.

3-4.1(b)

can only do a revocation of a 3-2.2 holographic will if you are in the 3-2.2 situation.
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?

Joyce says this is a trick question.

4-1.1 says that property passes through intestacy only to the extent that it is not disposed of by will. Would Blackacre go through intestacy?
 Suppose the son’s was 1/1/04 and the daughter’s was 1/1/03.
The daughter’s will came first and the son’s will came second.
We need to know which will came last! The later will revoked the first will, b/c the wills are inconsistent! The later will that is inconsistent with the first will prevails. THE SON GETS
BLACKACRE.

RULE: if you have two inconsistent, yet validly executed wills, then the will that was most recently created prevails.

The prudent lawyer would also include a clause revoking the prior will.
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 Wolfe’s Will 
says that an inconsistent statement in a later will prevails. It is read as though the testator changed his mind.
 Why doesn’t the fact that the wills were dated on certain dates determinative? We need to know more – we need to know when the will was executed! People can change things. If the daughter wants to win, she could change the date on the first will.
 The son’s will, if created after the daughter’s, revokes the daughter’s. Joyce says this is true, but don’t use the word revoke. A later inconsistent provision governs over a former inconsistent provision. The later provision wins. Do not speak of this in terms of “revocation.”

What if the second will is ripped up? Is the former will completely dead, or is it revived? That is a question of revocation. NYS says that once you have an inconsistent provision, the first provision is dead and cannot be revived
(unless you re-execute the will).
 Why wouldn’t Blackacre go by intestacy? We have to know which will came first. If we don’t know what will came first, then there are some courts who would hold that Blackacre would go by intestacy. An alternative would be to reconcile the wills and sell Blackacre and split the proceeds. You could also choose to give them a tenancy in common.

You should try to resolve the inconsistencies so they are consistent! If you really cannot, then the later will prevails.

You should try to read separate wills together to the extent they are consistent. On the other hand, if the wills are inconsistent and there is no way around it, then the later inconsistency prevails (do not need to say that the former inconsistency is revoked – just say that the later inconsistency PREVAILS).
T’s estate consists of Blackacre, worth $15,000, cash of $50,000, and stocks 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.” Who takes Blackacre?

ISSUES:
What does “last will” mean?
What does it mean that T is displeased with his son?
What does the word “money” mean, in terms of the former instrument?

Ask : is the second instrument partially or fully inconsistent with the first? Or, in other words, who takes Blackacre?
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 “Last will” issue 
this does NOT mean you are not supposed to read anything else.
 “Displeasure with his son” issue 
T says son deserves nothing from his estate. Is this inconsistent with the first instrument, whereby T leaves Blackacre to his son? o In all other states (except NY), they would hold that T must specify where his estate is going. Otherwise it is going nowhere, and then intestacy issues pop up. o How can you read this sentence so that it is still consistent with the first will? T uses the phrase “I think he deserves nothing from my estate” – using the words
“I think” is uncertain. If you are arguing for the son, you would say that T wasn’t sure what the son deserved and the first will should be kept intact.
 “Money” issue 
T leaves all of his “money” to his daughter.
This sentence should be read along with the sentence before it
(his son doesn’t deserve anything). o
Does Wolfe’s Will govern this situation? (See page 345) .

This case is the same hypothetical as this problem. The only difference is that in Wolfe’s Will, T used the phrase “all my effects,” not “money.” This case is authority for the problem in the syllabus! o What does “effects” mean? Is it broader than
“money?” Is it narrower than “money?” Joyce says it’s narrower. o The word estate is all encompassing. We know what the word estate is! But the words “money” and
“effects” are confusing. o There is a presumption AGAINST intestacy. This helps the daughter. Why?

Suppose that when T dies in our hypothetical, he owned not only Blackacre, cash and stocks, but he also owned
Whiteacre. We decide that money means only cash. The son gets Blackacre. Who gets Whiteacre? Whiteacre goes by intestacy! This is where the court in
Wolfe’s Will says that there is a presumption against intestacy, and therefore the word money should be read to mean everything, otherwise there will be intestacy with respect to Whiteacre. Why say there is a presumption against intestacy? Because if a testator sits down and creates a will, even twice, then the idea is that you don’t do that
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if you don’t want to dispose of your property by will! The presumption is that if people write a will, they are trying to dispose of everything they own. However, Wolfe’s
Will said this is still a presumption. The fact of the matter is that you must still dispose of everything (don’t leave anything out).

Would it make a difference if Whiteacre was purchased after the will was drafted? Sure.
Evidence is brought by the parties related to the time when the will was executed. You can look at other circumstances, too. Dig through facts. After you do that, then the question is: are those facts admissible into evidence? For example, if T says that he meant his entire estate when he said
“money,” you will try to get it in. Probably won’t, but you can try. o Find out what the answer is to the question in the syllabus!
B.
Revocation by Physical Acts
1.
PROBLEMS FROM SYLLABUS (page 198-199)
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. Is the will revoked?

3-4.1(a)(2)

a will may be revoked by a physical act.

Joyce believes this statute should be repealed! This statute has been around since 1678! Joyce says this provision would never be enacted today. He points to 7-1.17, which deals with the execution of lifetime trusts. Section (a) deals with execution.
Every lifetime trust shall be in writing. Up until 1997, you could still have a trust enacted orally. However, this changed and now it is required to be in writing. Section (b) says that any amendment or revocation shall be in writing. So if you have a revocable inter vivos/lifetime trust (which is equivalent to a will), it cannot be revoked by physical act. So Joyce asks, why should we still allow a will to be revoked by physical act?
Why was this statute relating to physical revocation passed in
1678? Statute of Frauds – you couldn’t devise Blackacre without a writing. But at the same time, you could undo the devise by ripping it up. Why would they do this? Joyce
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guesses that they would do this because they didn’t want you to have to go to a lawyer to end the devise! A lot of people couldn’t write back then. So they should be allowed to revoke on their own and save some money – not go to a lawyer and not have to write. Look at Totten Trusts

you have so sign the signature card. Everything important must be done in writing. But with a will (that is a real will, not equivalent to a will), you can rip it up!

If we allow this statute to stay on the books, we have to interpret the statute to say what we mean by “cutting, obliterating and canceling.”

Statute requires two things: o Intent o Physical act – obliterate, cut, cancel, burn

In this hypo, can we fit the physical act into one of the categories? Yes – cancel! Must hit actual writing (any provision) when you write on the will to cancel it (cannot write in the blank space around the will!).

When canceling something, do you have to cancel in the physical location of where the part is you are canceling?
Example, if you are canceling a devise, do you have to sign the word “REVOKED” and your name on top of words in the will?
What if you write on the side, in the margin? Is it still a cancellation? You must write over words in the will in order for it to be a cancellation! There is no difference between writing on blank space in the margin than there is in writing on the back of the will where it is a blank page.
 What if you tear part of the will but you don’t tear through any of the wording? Is it revoked? No – you need to hit a provision when you make a tear.

If you accidentally tear or burn the will, it does not revoke the will!

The answer: this is a cancellation! 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!
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?

See page 342 of casebook

LOST WILLS

NY SCPA 1407 – Proof of Lost and Destroyed Will o A lost or destroyed will may be probated IF: o It is established the will has NOT been revoked; and
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o Execution of the will is proved in the manner required for the probate of an existing will (must always do this); and o 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 (must prove what the will said).

If you are normally probated a will, you don’t have to prove that it has been revoked. However, under the common law, there is a presumption that if a will is lost, it was revoked, and therefore it MUST be established that it was NOT REVOKED.
It is presumed that the testator did something physical to the will with the intention to revoke it. Same presumption exists if you find the will, but when you find it is torn up. It is presumed in these instances that (1) it could not be found: (2) the testator did it; (3) it was revoked.
 If the legislature adopted Joyce’s proposal to get rid of this statute, you wouldn’t have to worry about this statute in NY
SCPA. This is because we wouldn’t care about the will’s location for purposes of revocation, since revocation would only be allowed in writing w/Joyce’s proposal!

Henson-Hammer (page 338)

talks about the presumption that a lost will is revoked. This case was in a weak presumption state. NY strongly holds the presumption that a lost will has been revoked.

Answer:
T validly executes both the “original” will and the photocopy. T takes both copies home. After T’s death, the original is found in little pieces in a drawer in his desk. The photocopy is found still intact. Can this photocopy be probated?

The photocopy can be used as a copy for proof that the will was executed properly under 1407.

Presumption

you still have to establish that it wasn’t revoked.

Answer:
T validly executes a will. T takes an unexpected photocopy home with him. After T’s death, the unexecuted photocopy cannot be found. Can the executed original be probated?

The original can be probated! Who cares about the photocopy.
The photocopy is not the will. The original is available, and it was executed properly.

What if there were two original duplicates? Both are signed, executed properly. If he tears up one, that is enough to
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REVOKE. As long as you do something to ONE executed copy to revoke that copy, it is sufficient to revoke!
Would your answer be the same if T had torn or mutilated the photocopy with the intent to revoke his will?
 It doesn’t matter if you tear or mutilate the photocopy, b/c it is an UNEXECUTED PHOTOCOPY. The will is not revoked.

If you executed the photocopy and tore the photocopy, it would be revoked!
In view of your analysis of the above situations:
Should you prepare a duplicate photocopy of your client’s will
?

If you want to prove that the will was created, prepare an
UNEXECUTED copy. NEVER EVER EVER execute the duplicate!!!! Do not make a photocopy of the executed copy.
You don’t want to risk someone arguing that the photocopy of the executed will is valid.
Should the duplicate, as well as the “original,” be executed ?

Never! ONLY EXECUTE THE ORIGINAL WILL!
Otherwise you risk big problems.
Who should retain what copy ?

See
SCPA § 2507 
Surrogate’s Court will keep the original copy on file for safekeeping. o Joyce told us a story about a guy who went around to
Surrogate Courts and stole wills! He stole Joe
McCarthy’s will from Buffalo (Joe McCarthy was a manager for the Yankees!).
C.
Revocation by Operation of Law
1.
PROBLEMS FROM SYLLABUS (page 199-200)
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 his 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 his brother, Ben), 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.
(Assume such an action is still permitted, as it is not in NYS).
H’s net estate at his death consisted of Blackacre (worth
$100,000), $5,000 in securities, and $75,000 in cash. H never had any children, natural or adopted.
Who is entitled to what portion of H’s estate in New York? (see, in addition to any other EPTL provisions which we have covered,
EPTL § 5-1.3 and § 5-1.4)
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
First issue : what does “wife” mean? His first or second wife? o At the time H executed the will, Joan was his wife. But then there was a divorce, and Joan was no longer his wife, Barbara was. o Does Joan have a shot, in light of the fact that she is not his wife? When do you read the will as of? How is the will interpreted? What about the fact that a will does not take effect until death? If you look at it from that point of view, then Joan is out b/c she is not his wife when he dies. This is wrong! You must look at the will at the time it was executed. It is looked at “as of” the time of execution. What does it mean to say that the will operates at death? This just means that the will can be revoked, and unless you do revoke it, then the will operates at time of death and your property passes accordingly. o Does Joan get Blackacre? There was a divorce.

Second issue : what is the effect of his divorce from Joan? See
§ 5-1.4
o Does Joan get Blackacre? NO – because of § 5-1.4, which says that once spouses divorce and there is a disposition of property to the spouse by will, that disposition is revoked. The entire will is NOT revoked, just the disposition to the spouse! o However, the will CAN provide otherwise. For example, if H had said that he left Blackacre to his wife, Joan, b/c she is Joan, then would Joan take under the will? The will must be SPECIFIC and state that
Joan is to take in order to override the statute! o To say “b/c she is Joan” or “b/c I love her” or “no matter what,” is NOT ENOUGH. The will must state that H leaves property to Joan whether or not she is his wife ! o Suppose this was a life insurance policy that said that upon H’s death, the proceeds are to go to H’s wife,
Joan. Then there is a divorce. What happens? § 5-1.4 does not apply! If it is a pension plan, the statute does not apply. The statute does not apply to any trust. It
ONLY applies to wills! o Joan gets NOTHING.

Third issue : what is the effect of the remarriage? See
§ 5-1.3
o H remarries. Barbara is his new wife. Does she get
Blackacre as his wife, under the will? NO. o If H says he leaves Blackacre to his wife, “whoever she is at his death,” then Barbara would take Blackacre.
The statute does not revoke the language from the will
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in connection to Barbara – it only revokes the language in the will as far as it pertains to Joan. o Construe the language at the time of execution – so
Barbara won’t take Blackacre under that argument. She was not his wife at the time of the will’s execution. o How can she take Blackacre? o § 5-1.3 
a person makes a will and then gets married.
Revocatory effect of marriage means that if H makes a will prior to marriage, and then gets married, that marriage revokes the will. Barbara could argue she takes Blackacre through intestacy. The will would have to be executed prior to 1930, according to the statute!
What is the reason for this date provision in the statute?
The reason is § 5-1.1-A (right of election statute), b/c it took effect in 1930. Once the legislature decided to put in the right of election statute, it decided that it no longer needed § 5-1.3, so they used the date restriction.
Barbara does not take Blackacre pursuant to 5-1.3.

Fourth issue : what is the effect of suing his brother for alienation of affection? o What about § 4-1.1? Barbara is the wife. Can she take
Blackacre if she gets the will tossed? Sure – if the will is revoked for some reason, then she can take everything under 4-1.1. What would be another reason the will would be thrown out? H sued Ben (his brother) for alienation of affection. H collects $75,000 from this suit and it goes into the residuary. Under the will, the money is supposed to go to Ben. However, Barbara can get the will thrown out b/c under operation of law, the money would go to Ben, but now there is a change of circumstance! H did not intend for the money to go to
Ben, as evidenced by the law suit. Ben would say that although the circumstances are changed, there is no specific provision in NYS that says that wills are revoked by changed circumstances. Barbara would point to the common law. There is nothing in the statute that says that we’re going to change the common law (says Barbara). Ben says to look at 3-4.1. o Ben is right! § 3-4.1 says that “except as otherwise provided…” There is no revocation by operation of law, UNLESS you can find a specific statute!
 § 3-4.1
 these issues all stem from the first sentence of 3-4.1, which says, “except as otherwise provided in this chapter…” o Unless you can find another statute, you can only
REVOKE under 3-4.1!
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o Barbara does NOT get Blackacre under the will! She is not the wife at the time it was executed. Revocation of law does not apply b/c of the word “only” in 3-4.1! o Joan does not get Blackacre b/c of 5-1.4.

The only person around to get anything is Ben! BEN GETS
THE PROPERTY.

What if we say that H has money in the bank at death, a dog, stuff at home?
 If Joyce uses the word “estate” do NOT use 5-3.1!

Anytime a wife gets 5-1.1-A rights, she gets 5-2.1 rights!
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, Jill.”
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.
Who is entitled to Blackacre? (Consider EPTL §3-4.3, § 2-1.5, pages 274 – 281; 285)

First issue : what is the effect of T selling Blackacre in Year 2? o It would be an ademption by extinction

ask the question if the property is owned by the decedent at his death? o Here, T owned Blackacre at death. So it is NOT adeemed by extinction. o 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. o 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. o But if you do something WHOLLY inconsistent, it will revoke! o 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. o The statute does not say anything about buying back the property.
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o Joyce: 3-4.3 seems to go beyond the ademption and say the provision is revoked if it is inconsistent. o 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 ? o 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. o 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). o § 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). o We are left with ademption by extinction and revocation.

Fourth issue : determine what is wholly inconsistent and what is just altered. o 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. o 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 this is NOT wholly inconsistent, b/c you didn’t make the decision, the guardian did. This is pursuant to 3-4.5. o 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. o Joyce will NOT ask about anything except 3-4.3!

Who gets Blackacre?
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
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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 practice, it
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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 3-4.3! 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.

Joan


Ben

Ben shouldn’t get the $75,000 back from the residuary.
This would be wholly inconsistent. This is just one argument.
D.
Partial Revocation
1.
PROBLEMS FROM SYLLABUS (page 200)
T makes a valid will which reads: “I leave my estate equally to X and Y.” Thereafter, T scratches out “X” and inserts “Z.”
Does Z take anything under the will?

Absolutely not! The reason is that because the change was added after the will was executed! If T wants to change this to
Z, then he must properly execute the change (this is the case everywhere).

NY does NOT permit partial revocation by physical act!
Does X take anything under the will?
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
You still have the power to revoke by scratching out on the will. But does this scratch count? Is T allowed to scratch out
X, so that X will not take? NOT IN NYS! Even though NYS allows you to revoke by tearing, obliterating, canceling, burning, etc. It does NOT allow you to get rid of one of the provisions.

Look at 3-4.1(a)(2)

revocation by physical act. Compare to
(a)(1), which is about revocation by subsequent instrument.
(a)(1) says you can revoke a will “OR ANY PART
THEREOF.” And (a)(2) does not say that, it just says “a will.”

If you are going to revoke by physical act in NYS, you can only revoke the WHOLE will, not part of it!

So X can take! The attempted partial revocation by physical act is considered a nullity in NYS.
Does Y take anything under the will?

Is the whole will revoked b/c there is scratching on it? If it is, then Y will not take. But if it is not revoked, then Y is okay to take!
 T would have had to “scratch” on the will with intent to revoke the WILL. The act itself is sufficient to revoke the entire will,
BUT ONLY IF THERE IS INTENT! T did not scratch out Y.
He only inserted Z. What does inserting Z tell you about his intention to revoke the entire will? That T did NOT want to revoke the entire will! He did not want the entire will to be revoked. He just intended to change X to Z. His intention was to do what he could not do! He did not want to get rid of the whole will. So Y does take!
Hypo: X, Y, Z. Y is the testator’s only son. Z is the testator’s only daughter. X used to be husband of Z (used to be testator’s son-inlaw, but X and Z got a divorce). T will have left his estate equally to X and Y, because T didn’t trust women to handle money! What about T’s only daughter? Half of T’s estate was left to his son, half was left to his son-in-law. But then his daughter and son-inlaw divorce. T has to bite the bullet that his daughter can handle the estate. So T crosses out X and inserts Z. Given those facts, would the answer above be any different?

The son-in-law gets half the estate and the daughter doesn’t get anything, if we go by the rules above!

Courts in NYS will read this and revoke the entire will.
Therefore, the daughter can take through intestacy laws. What
T intended to do was to give half to the son and half to the daughter. If the court revokes the entire will, then the kids are happy. Of course, the son-in-law is not happy, but T’s intent is carried out!
In Year 1, T makes a will which reads: “I give $5,000 to X, $5,000
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to Y, $5,000 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 to X, in my will made in 1960, is revoked.”
Does X take $5,000?

NYS permits partial revocation by subsequent instrument!

3-4.1(a)(1)

you can revoke a will or any part thereof, by subsequent instrument. The instrument must be executed with testamentary formalities.

X does NOT take $5,000.

The second instrument is called a codicil . o 1-2.1

codicils. A codicil is a supplement to a will, either adding to, taking from or altering its provisions or conforming it in whole or in part by republication, but not totally revoking such will.
Is A’s residuary gift increased by $5,000?

Yes! If the clause is void, then the property that isn’t
disposed of drops into the residuary.
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.
Does X take $5,000?

Note: Joyce will never ask us this on the exam!

First question to ask about REVOKING: ask about consistencies and inconsistencies. Is the second instrument consistent with the first? Can both instruments somehow be probated together? o If the 2 nd
instrument is read to say that everything but the $1000 to Y is to go to Z, then it is inconsistent with the 1 st
instrument. OR, you can read the 2 nd
instrument as saying that Y gets $1,000, and Z gets the rest,
EXCEPT for what was given to X in the 1 st
instrument
($5,000). If you read it the second way, then you read it as though the 2 nd
instrument is a codicil. o To determine whether the 2 nd
instrument is a codicil: look at facts. What about the fact that T wrote
“REVOKED” over the 1 st
instrument? What is the relevance of this as to how we read the 2 nd
instrument in terms of consistency? It tells us that we should read the 2 nd
instrument as being completely inconsistent.
HOWEVER, it could also mean something else – it could mean that T never focused on what he meant by
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residue, and that he changed his mind. By revoking the
1 st
instrument, it would be of the mind that it was the only way T could get rid of X. o If we decide the 1 st
is completely inconsistent with the
2 nd
, we are done with the question. o HOWEVER, we are going to take it both ways and say that the 2 nd
instrument is consistent with the 1 word “revoked” over the 1 st
instrument? st
!

Second: what is the effect of the physical act of writing the o One view  by writing revoked, all T wanted to do was revoke the 1 st
instrument. Why is this susceptible to the argument that it’s a nullity (by nullity, Joyce means to say that it doesn’t matter that it was written on, it doesn’t make a difference)? Isn’t a nullity an attempt to partially revoke by physical act? It would be an attempt to partially revoke by physical act if there was more than one term in the will! Is there a difference if there are two or more instruments? Where the 1 st
instrument leaves everything to X, and the 2 nd says leave $1,000 to Y, and then T rips up the 2 nd instrument? This is not a nullity – it revokes the 2 nd instrument, not the 1 st
! Conceptually this is wrong, b/c it allows partial revocation by physical act. However, it
IS ALLOWED. o A nullity is a partial revocation by physical act!

If it is allowed, to revoke the 1 st
instrument (b/c we are looking at the facts as though there are 2 instruments – not 2 clauses), then what is the effect? o 3-4.1(c)

if you revoke the will – then it destroys the codicil! “A revocation of a will revokes all codicils thereto.” Intention does not matter! All that matters is whether the will is revoked. o 3-4.1(c) was put in the statute to keep testators from screwing around. Better to start over than to deal with the domino effect of revoking the will and handling the issue of codicils.

Once you get by the element that this is a 2 instrument case, and then you see that the will is revoked, then T has died intestate! o This is the scholastic view. However, it goes completely against the purpose of the statute – we know what T wanted and to let him die intestate is against the statute.

Back to the first scenario: T dies and the 1 st instrument cannot be found. We presume that T destroyed it and it is revoked.
What happens to the 2 nd
instrument? The 2 nd
is revoked as
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well! If it is presumed that the 1 st
instrument is revoked, then all codicils that follow are revoked as well. This also goes against the purpose of the statute (we know what T wanted, but he dies intestate).

3-4.1(c)

good evidence that the doctrine against partial revocation by physical act IS allowed if you are dealing with more than one instrument , not more than one clause of an instrument. o It is important to know whether an instrument is a codicil ! If it completely revokes the first instrument, it is not a codicil. o Revoking a codicil does NOT revoke all wills to which there is a codicil.
Would your answer be different if the Year 2 instrument left $1,000 to X instead of Y (residue still to Z)?

See above.
E.
Revalidation of Revoked Wills
1.
Republication by Codicil (see pages 244-258)

Incorporation by reference

this is an issue. Judge Cardozo has said that incorporation of unattested documents into a will is not allowed! However, most states allow incorporation by reference, as long as there is specificity and as long as all the documents exist at the time of death. In NYS, as a general matter, you cannot attach documents to the will OR incorporate by reference (Preminger said this too).

There are some exceptions ! o When a previously executed will is treated as though it were re-written in a codicil

you need only have reference to the will. You can say things like: “I change my will in the following way, but I affirm my previously executed will in all other ways…” Some people say never create a codicil; but then others say don’t do that, write the codicil, b/c the testator is weaker in old age now and jeopardize the little thing
(codicil) rather than the big thing (will). o Example of another exception

suppose I say I leave the contents of safety deposit box to X. Who gets it? X does. If you allow that, then any time I have a fight with X, I can go to the bank and take money out, etc.
No need for execution. The physical act of changing the contents of the safety deposit box is a change! Why isn’t this a revocation? Because people keep safety deposit boxes and the contents change. This is NOT
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the same as saying: “my jewelry goes to the people on the list under my pillow.”
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 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 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 did in Year 5. Does A take Blackacre?

It depends! What if Whiteacre was one little house lot, and
Blackacre was one little house lot. And A was a good friend.
The court would probably allow A to take the property. BUT, change the facts and say that T started off with $10 million, plus Whiteacre (worth $50,000). T then gives Whiteacre to his son and buys Blackacre, which is a $10 million parcel. T then changes his will. The point is that republication by codicil has a presumption that the codicil is a presumed update.

Certain things are testamentary substitutes under the right of election. These things change over time.

QUESTION: Joyce executes a will and leaves everything to the
United Way. A child is born after the execution of the will.
Under 5-3.2, the child will take his intestate share. What if
Joyce executes a codicil after the child is born? Joyce thinks the child is out! A will includes a codicil, as per § 2-1.19
2.
Revival of “Revoked” Wills
In Year 1, T makes a will which reads: “I give my entire estate to
X.” In Year 2, T makes another will which reads: “(1) I hereby revoke all my prior wills. (2) I give my entire estate to Y.”
Thereafter T tears up the Year 2 instrument intending to revoke it.

If wills are inconsistent, the later inconsistent provision prevails! You can come to this conclusion without using the word “revoked.” You do not have to say that the second instrument REVOKES the first instrument. JUST SAY: the second instrument prevails and wins over the first instrument.
Do NOT use the word “revoked!”

What if T tears up the second inconsistent instrument? What does this do to the first instrument?

Common law

a will does not operate until a person dies.
Therefore, if a person tears up their will, it does not operate b/c the person did so when they were alive.

Ecclesiastical view

the will that is revoked is dead at the time of the execution of the second instrument. Therefore, when you rip up the second instrument, nothing happens to the
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first instrument b/c it is already dead (you revoked it in the second instrument). You die intestate, b/c you have ripped up the second instrument!

NYS  3-4.6(a) . Joyce: this should have said, “if after executing the first will T writes a second will revoking the first, it does not revive the first will. This statute is consistent with having adopted the ecclesiastical view! o 3-4.6(b)

you cannot just show the first will to the witnesses and ask them to identify it. If you decide to revive the first will, you must re-execute it !

Hypo:
T writes will #1: All to X.
T writes will #2: All to Y.
Cannot find the second will! o The second will revoked the first will as soon as it was executed. o The second will cannot be found, so it is presumed to be revoked. o The person dies intestate!
What if we cannot find the first will? o It doesn’t make a difference 
the first will disappeared when the second one was executed.
What about 3-4.1(c)? o The wills are completely inconsistent, so 3-4.1 does not apply!
What about $1,000 to X and $1,000 to Y? The two wills are not inconsistent. o If you cannot find the first will ($1,000 to X), the person dies intestate. o What if the second will is crossed out with the intention to revoke it? IT IS TWO INSTRUMENTS – you can partially revoke! YOU CANNOT PARTIALLY
REVOKE IF THE WILLS WERE READ TOGETHER
AS ONE INSTRUMENT! o What does X get? Look at 3-4.6. o 3-4.6

says that if T executes a will (X gets ALL), and then executes a later will which ALTERS the first will (Y gets 1000), and the second will cannot be found, then how do you apply 3-4.6? Does X take the entire estate? NO! X takes everything except for the 1000!
Under 3-4.6, when T wrote the second instrument, it permanently reconfigured the first instrument. As soon
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as the second instrument was written, it permanently changed the residuary. (CHECK THIS ANSWER,
NOT SURE IF HE SAID THAT THE SECOND WILL
CANNOT BE FOUND – if the 2 nd
will cannot be found, then Y gets nothing and X gets it all?) o What if the second will only had one witness? Then the second instrument is a nullity – it was not properly executed. o What if it can be shown by X that at the time T wrote the second will, T was insane? Then the second instrument would be a nullity. o Don’t apply 3-4.6 in a non-revival configuration, unless you have a valid second instrument.
Is the Year 1 will revived under the EPTL § 3-4.6? If not, what else would be necessary?

See above.
F.
Dependent Relative Revocation (Mistake)
Mistake Cases in Handout

Patrick


Snide

1.
First Problem (p. 201)
Thinking her son Jon is dead, T executes a will in which she provides: “I leave my estate to my daughter, Jane.” In fact, Jon was not dead and survives T.
Can Jon take under the will?
 No! The fact that T was mistaken as to her son’s death doesn’t matter! Jon cannot take!

Joyce: this is really a probating of the will issue, not a revocation issue.
Can Jon successfully contest the probate of the will?

No! This is saying that the will cannot be thrown out for
 mistake. o
2.
Second Problem (p. 201)
T makes a will. Thereafter, T tears up the will, saying at the time,
“I intend this will be revoked, but only if and when I make another will.” T never makes another will.
Is T’s will revoked?
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
No! In order to revoke by physical act, you need to also have intent! Here, T only had conditional intent and here the condition was not met.
3.
Third Problem (p. 201)
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 Jon.” In fact, Jane was not dead and survives T.
Can Jane take under the will?

This is the classic case for dependent relative revocation.
“DRR”

Jane should take under the will

saying that “since my daughter is dead,” is really saying that “IF my daughter is dead…” It is a conditional revocation (like #2, up above).

Jane should not take under the will

we should not have to
“read the will as though it says ‘if’…” The court wants to read it as is. Live with the mistake!

Courts decided to take a look at this issue. See the fourth problem (next).

Hypo: o Suppose 5000 to X (1 st
will), rest to Z. And codicil says 1000 to X. o X will want 6000! Z will say no way – X gets 1000. Z will say that 1000 is substitutional. X will say no, it’s cumulative. o What we’re really talking about is revocation. Z is really arguing that 1000 revokes 5000. o Question is really about inconsistency – 1000 replaces
5000. o The answer is found based on T’s INTENTION. o Suppose that Z wants to get on the stand and say that T wrote the codicil after substantial losses in the stock market. Can Z testify about this in NYS? No! There is nothing wrong with the evidence, it’s b/c Z is an interested beneficiary. This falls under the Dead Man’s
Statute CPLR § 4519. Z is disqualified. However, Z could have T’s accountant (an UNinterested witness) come and testify. The accountant will be asked what happened when T’s stock went down. Accountant will say that T said, “oh shit.” Is this allowed? Yes. Next question to the accountant – were you there when T wrote the codicil? Yes. And why did T change the will by codicil? Accountant will say that T did it because of the sinking stock market. But accountant will not be
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allowed to testify as to WHY T changed the will! The reason is NOT related to hearsay! The reason why, is because if you allow the accountant’s testimony, then you might as well throw away 3-2.1. What is the sense of requiring two witnesses and all the formalities, if you are just going to fill in the blanks with oral testimony? o The evidence is just too good – if you allow the evidence, then you are allowing unwritten evidence to change the disposition, rather than the writing.
Testimony should not be allowed to change the writing!
Specific declarations by the T as to their intention are often NOT allowed. In NYS, the case law is not very clear, but usually specific declarations will not be allowed.
4.
Fourth Problem (p. 201)
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 tears 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.
Can X take under the Year 1 will?

Is there a mistake here? The mistake in the third problem as a mistake of fact. Here, the mistake is that T believed the second will was valid (which is why T ripped up the first instrument)!
T meant, “only if the second instrument is valid” when he ripped up the first will.

Should the court give relief for this mistake? If the courts start giving relief for mistakes such as this, then the court needs to know who is X and who is Y. Suppose that X was a person with whom T was living. And they had a falling out. And T resumed living with Y, which is why T changed his will. On the basis of that scenario, if you could ask T, T wouldn’t want the property to go to X, T wants it to go to Y or anyone for that matter. Just not to X! The court would then say that DRR does not apply, and the revocation will not be un-done. Follow
T’s wishes. Now, on the other hand, suppose that X and Y were T’s children. If the revocation stands, then NYS gets the money. So, apply DRR, b/c the revocation was based on mistake, and T would have wanted the first will to apply. Go with the “second best” rule

probate the first will (since we can’t probate the second will, which there was only one witness).
5.
Fifth Problem (p. 201-202)
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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:
Will X take $5,000 under the will?

Obviously in NYS you cannot do partial revocation by physical act. But what about other jurisdictions?

DRR

first we must ask: is there a mistake? What did T think was going to happen? T thought Z would be able to take, and that’s not going to happen. Should we allow the revocation to happen or not? Next, we must ask: who is X, who is Y, and who is Z. On the basis of the circumstances, what would the testator have preferred?

To answer a DRR question:
(1) Ask if there was a mistake
(2) Ask who is X, who is Y, etc. (on the basis of the circumstances, what would the testator have preferred?)
Suppose, instead of crossing out “X,” T crossed out $5,000 and inserted “$6,000”?

6.
Sixth Problem (p. 202)
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?

First will is not revoked.

Is there a revocation based upon mistake? If so, should relief be given?
7.
Seventh Problem (p. 202)
In Year 1, T makes a will leaving her entire estate to her son Jon.
Thereafter, T executes, with the requisite testamentary formalities, a document which reads: “I hereby declare by Year 1 will revoked.” (3-4.1(a)(1) – declaration of revocation). At the time T executed this revocatory instrument, T thought Jon was dead. Jon was not dead and survived T. T would not have executed this revocatory instrument if she had known that Jon was alive.
Can Jon take under the Year 1 will?

What is the difference between this problem and the third problem? Read Carter. The professor believed one thing, but is his belief proper?
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
Was the Year 1 will still in effect, despite the fact that there was a later instrument that specifically said the first instrument was revoked?

Is there a potential revocation on the basis of mistake? Yes there is. This is the same type of mistake in the third problem, where T tore up the will believing her daughter to be dead. Is this the same result as the third problem?

Is this problem really like the third one, or like the first one? It is like the third problem b/c it involves a revocation. First problem did not involve revocation. What is the difference between this problem and the third problem? Physical act vs. subsequent instrument!

Carter

page 354 of C.B. Number 3 is about a physical act revocation. This problem is about a subsequent instrument revocation. o The courts mostly disagree with Professor Chaffin in this case (see bottom of page 356). o With a subsequent instrument, things are more formal. o What happens if you allow the doctrine to apply in this situation (doctrine of DRR)? Is there a presumed intention? Did the guy do this on the basis of mistake? o If you have clear and convincing evidence of a mistake, then why can’t you do what’s right? Because then people will come in and claim to have clear and convincing evidence.

This question is most like the first problem!

DRR does not apply, Jon does not take under the will!
Would your answer be different if the revocatory instrument read:
“Since my son Jon is dead, I hereby declare my Year 1 will revoked?”

In this instance, most courts would allow DRR to apply. The mistake is on the face of the instrument. So Jon will likely take under the will!
8.
Eighth Problem (p. 202)
In Year 1, T makes a will leaving all of his estate to X. In Year 2, T makes another will 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.
Does X take under the Year 1 will?
 Joyce: says he doesn’t really know the answer to this question.

3-3.2  whenever you use this statute, the first thing you must say is: THE WILL IS VALID. You can only use this statute if
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the will is valid! So go through the steps to show that the will is valid.
 Here, the second will IS valid. It’s just that the minister cannot take his disposition because of 3-3.2 (he is an interested witness). We must say that the will is valid in order to use
DRR.

Does DRR apply?
(1) Joyce says to first ask: is this a potential revocation based upon mistake?
The mistake is that T thinks the minister will get the estate.
(2) Where is the mistake, if there is one? T is mistaken, b/c he believes the estate will go to the minister. But the minister’s disposition is void under 3-3.2.
(3) Should the mistake be corrected?
(4) Is it a written revocation or a physical act revocation?
Here, it is a written revocation.
(5) Is there a mistake on the face of the written revocation?
(6) If you find that this is a mistake on the face of the document, remember the last question to ask!
 should the court fix the mistake as to what the testator would have preferred !?!
(7) Would the testator have preferred intestacy, or would he have preferred the money to go to X? This is the
“second best” rule! Ask who the people are, who is X?
If X is the minister at another church, from where T converted, then T would have probably wanted his estate to pass by intestacy.

DRR in NYS
 o DRR is still not decided in NYS. Some appellate cases have applied DRR (like the case in problem four). o To answer a DRR question on the exam, answer using the common law.
Would your answer be different if the Year 2 will did not contain a revocatory clause?”

VII.
A.
Gifford v. Dyer
B.
Patrick
C.
Snide
VIII.
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IX.
A.
Probating the Will
1.
Why probate a will?

Create proper chain in the link of title.

In order to prove you have title of property left to you by will, the will must be probated so you can acquire title.

Suppose Jon and Joan are going to split everything in their father’s will. Joan says let’s not probate the will, and let everything go by intestacy. They can do this, b/c by intestacy, they will split it all anyway.

Solemn form probate

in NYS and Mass, the will is not probated UNLESS notice is given to people who are interested in the proceeding. Unless the notice is given, the probate of the will is invalid. The proper chains in the link of title must be followed! Requirement of notice.

Common form probate

does not require notice to all parties before probating a will. As soon as the person dies, the successor trustee (or executor), steps in automatically without having to go to court.
B.
Who may contest? STANDING AND NOTICE!
1.
First Problem (p. 210)
T dies, survived by his spouse A, his brother B, and two children,
John and Wendy. T’s will leave’s one-half of his estate to John and one-half to A.
Can Wendy contest?

Does Wendy have to be given notice? o § 1403 
Wendy must be given notice because she is a distributee. If there was no will, she would take through intestacy.

Does Wendy have standing to contest the will? o § 1410  a person can contest if they would be adversely affected by admitting the will to probate. o Wendy has standing! She could take under 4-1.1.

In the real world, Wendy would sign a waiver and consent.
She will waive her right to be given notice under § 1403, and also that she consents to the probate of the will. If everyone does this, then the probate proceeding goes much faster. On the other hand, if Wendy doesn’t waive, then she must be served process.
Can John contest?

Is John entitled to notice? Yes.
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
Can he contest? No – he is getting more than he would if the will was thrown out. He is not adversely affected by admitting the will to probate!

Can John contest on behalf of Wendy, his sister? No – Wendy must do it or else it won’t be done!

John is entitled to notice. Make sure he signs the waiver, even though he cannot contest.
Can Brother B contest?

B can inherit, but he is not entitled to notice since T left issue and a spouse.
 § 1403 
only applies to ACTUAL distributees (not potential distributees).
2.
Second Problem (page 210)
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.
Can X contest the Year 2 will?

The answer is NO! o § 1403(1)(c) 
any person designated in the will as beneficiary, executor, trustee, or guardian, whose rights or interests are adversely affected by any other instrument offered for probate that is later in date of execution or which amends or modifies an instrument offered for probate. o What is X trying to get rid of? The second will. o “the will” 
means the will offered for probate. In terms of this question, it means the second will. X is not in the second will! o § 1403(1)(d) 
any person named as a beneficiary in any other will. But, that “other will” must be filed in
Surrogate’s Court. If the first will had been filed in
Surrogate’s, then X could contest the will under this section. o X will not get notice under 1403! (Unless the will is filed with Surrogate’s Court – this is the reason a lot of people don’t file their wills with Surrogate’s Court). o Why isn’t X entitled to get notice? o If X knows about the second will, does X have standing to contest? (Not notice, but standing is the issue now!). Must ask if X is adversely affected. Is X adversely affected? NO – a will is only an expected interest. X only has an expectation. In order for X to have an interest, X must probate the will. When the
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second will is offered for probate, do we give X the chance to kick out the second will before we give him a chance to probate the first will? HOWEVER – X does have standing! X technically must probate the first will first (prior to getting the second will thrown out). This is a waste of time, so we will just allow X to have standing. o X then has standing to contest, but he will NOT get notice! o Why doesn’t X get notice? Because what if there was a will hidden in a shoe box, and no one knew about it until years later. Then X would say that he should have gotten notice, and then the whole probate of the will would be messed up. UNLESS the first will is on file with Surrogate’s Court – X will not get notice!
Can Y contest the Year 2 will?

The answer is NO. o § 1410 
is Y adversely affected? An adversely affected person can contest. UNLESS you are the executor of the first will and are kicked out of the job by the second will and cannot get the commissions.
Not being able to get the commissions is not a beneficial interest. Losing the job of executor (missing out on commissions) is not sufficient to contest. o Y has NO standing o Y is NOT entitled to notice

Hypo: first will says all to X. Codicil says 1,000 to Y. o 1403(1)(c)

if instruments are offered together for probate because they are read consistently, then X, who is a beneficiary designated in “the will” being offered for probate, is entitled to notice that Y is being given
1,000 by the codicil. X can contest the 1,000 that is to go to Y because it takes away from X.
3.
Third Problem (page 210)
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 H and son, John.
Can H contest?

Cannot answer the question without more facts.

The husband must receive notice.

To determine if H can contest, must figure out if H is adversely affected.

Must have numbers to determine if H is adversely affected.
Look at numbers to determine how much he would receive by
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right of election. If the elective share and the share in the will are the same, then there is no adverse effect. But if the elective share is greater than the share in the will, then there is an adverse effect. H would then have standing and need to receive notice!
Can John contest?

John was born after the execution of the will

Is an afterborn child going to get the same amount under 5-3.2, as he would if the will was thrown out and he would take by intestacy under 4-1.1? o Are there 5-3.2 rights? o If the rights are the same as if the will would be thrown out and the estate passes through intestacy, then why bother contesting the will? o The afterborn child gets his or her intestate share
ONLY IF there are no children living at the time the will is executed, and in one other instance

suppose the will says that “I leave everything to X, except for
$1.” o Spite provision – if the dollar to J is to spite J, then if
John doesn’t have rights under 5-3.2, then there is standing to contest. o Sometimes it is not easy to see whether a person is aggrieved.

Look back at the second problem: o Can X contest the second will when the second will is probated, even though he hasn’t probated the first will?
Yes – he can contest the second will because he is aggrieved. o Can A contest the first will if the first will is offered for probate? (Reverse of previous question). No! The answer is that no one cares! If A comes in with the second will and wants to go to court to make sure the first will isn’t contested, A can’t do this. The question is: is A aggrieved? Does it matter to A whether the first will is probated? How will A get any money? A has the second will. That’s all he’s got. The only way he can get money is if the second will is probated. If the second will is probated, then what? A wants to probate the second will at the same time X is probating the first will. What does A say? A will say that he should get his money, because if the second will is probated, then the second prevails over the first will. A could care less if the first will is probated – all he needs to do is probated the second will!
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o If A doesn’t find out that there is a second will until after the first will has been probated, and the money is taken out of the estate, then how does A get the money?
FIRST

is there a statute of limitations to probate a will within the time of testator’s death? No S.O.L. in
New York. (Take a look at 3-3.8
– protects the bona fide purchaser of property disposed of by a will that is later nullified if a second will is probated. Ex: if the will is found later than two years and the property has been distributed and/or sold, then if there is no S.O.L. on the second will, then what good is it to probate the second will). o You represent neither X nor A. You represent the sole distributee (a child who has been disinherited). Your client wants to contest. The will is probated normally – offer the second will (not the first for probate), because it was executed most recently. A says child has no standing to contest b/c A child eliminated by the first will. Can the child contest the second will? Yes – the second will prevails over the first will, but besides, the child can contest the second will b/c the first will hasn’t been probated yet (he’ll contest that will too, if need be). The first will is offered for probate and is probated. The second will is offered for probate and the child wants to contest the second will. Can the child contest the second will? NO – the child has been eliminated by the first will, so now he has missed his chance. o The major question is: IS THIS PERSON
AGGRIEVED? o This is a question of practicality – why contest if it won’t do any good?
4.
Back to First Problem on page 210
Suppose Wendy says she wants to contest. She has standing. But are there grounds for her to contest?
First, there is a provision in the will that we must be aware of:
“If Wendy contests the will, then she loses anything she is given in the will.”

In Terrorem Clause

if a person named in the will contests, then they lose their share in the will.

Wendy is concerned that if she contests, she will lose her interest in the will.
 § 3-3.5

in terrorem clauses are a battle. If a person has standing to contest and grounds to contest, then they are entitled to their day in court. If the testator was unduly influenced, defrauded, etc., then give the person a chance to
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contest. On the other hand, the testator who is afraid of family fights should be able to say no fighting, and if you fight, you lose!
 § 3-3.5(b)  this clause is beneficial because it does not allow someone to step in, even if there is probable cause, to eliminate the in terrorem clause.

(b)(1)

if the testator says that if Wendy contests on the fact that the will is a forgery, she will STILL lose.

(b)(2)  a minor can contest.

(b)(3)  certain things will NOT work against the following conduct of the contestor: o (B)

the disclosure to any of the parties related to the probate proceeding will NOT violate the in terrorem clause! This is the “take the judge to lunch” provision.
Ex: will is offered for probate. Wendy goes to the court. Wendy tells the judge that her father was mentally unsound for the last number of years. Wendy asks the judge to look at 1408, which is very peculiar.
1408 tells the judge that the judge has the duty to inquire into all facts and genuineness of the will.
Wendy claims she is trying to help the judge fulfill her duties under 1408. o (D)  preliminary exemption under SCPA 1404 . 1404 allows a person like Wendy to examine the witnesses to the will if there is an in terrorem clause that allows her to depose the witnesses and/or executor. She could ask any question relating to contests related to testamentary capacity, etc. 1404 allows Wendy to try her case without objections! Then, Wendy’s lawyer can tell her if she has a case before she files objections and risks the invocation of the in terrorem clause, whereby she would lose her case. o (E)  says that the contestor would like to have the will “construed” … In other words, the person requests a construction.

If Wendy files objections pursuant to the exceptions of the in terrorem clause, she STILL stands the risk of losing! If she loses in court, then she loses against the in terrorem clause.

What about a revocable trust – it is treated like a will sometimes. For example, it is not treated as a will for purposes of 5-1.4 (divorce) or 5-3.2 (afterborn children).

If Wendy successfully has grounds that her father lacked testamentary capacity, then the whole will is thrown out.
However, there are other grounds where the entire will may
NOT be thrown out!

SCPA 1409

notice of probate.
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o The purpose of this statute is to protect against the executor! The notice must be given before the letters are issued (before the executor is given control of the estate!). This is to avoid giving the executor free reign to take control of the estate without giving notice first.

SCPA 1411

citation upon filing of objections. o The purpose is to give notice to parties named in the will when somebody contests the will. Need to know if the will could be thrown out! This statute is based on due process to protect a person’s interests under the will. The statute is triggered when someone files objections against the will.
C.
Grounds for Contesting the Will
1.
Testamentary Capacity
 § 3-1.1

a person 18 years old or older can make a will, but only if that person is of sound mind and memory.

What is the jury told to determine whether a person lacks testamentary capacity? (see pg 211 of Supp) o Testator must have sufficient capacity to comprehend :

The scope and meaning of the provisions of his will

The nature, extent, and condition of his property

His relation to the persons who ordinarily would be the natural objects of his bounty

The proponent bears the burden to show lack of testamentary capacity. However, Joyce thinks that the contestant really bears the burden (even though the Surrogate judges would say that the proponent does). Joyce says that the factfinder reigns supreme.
2.
Undue Influence

What is the jury told to determine whether a person was unduly influenced? (see pg 213 of Supp) o 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. o All influence is not condemned – only undue influence is that which is to the degree of intrusion that destroys the testator’s own judgment and volition.
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o Joyce: look at what the alleged influencer did, not necessary what was in the testator’s mind (how can we ever know what really unduly influence the testator – how do we know when the line is crossed?). o Who bears the burden? The contestant bears the burden!

Confidential relationships

suppose I, the attorney, draft my client’s will and my client leaves money to me.
The will is presumed to have been a result of undue influence !
3.
Fraud

What is the jury told to determine whether a will was fraudulently executed? (see pg 216 of Supp) o To show that the will was procured by fraud, must find that there was :

A false statement

Known to be false

Relied upon by the testator

Done with the purpose to defraud o The contestant bears the burden.
4.
Mistake

When is a will executed upon the basis of a mistake? o Patrick  a will is probated where it is clear and there is no mistake on the face of it. Although testamentary capacity, undue influence and fraud are grounds to contest a will, mistake is not.

Suppose that T executes a will where the estate is given to the only child who does not own her own home. T believed that his daughter was the only child who did not own her own home. The will is denied probate on the basis of fraud. Why is the will denied probate on the basis of fraud, but not on the basis of mistake?
 The father’s mindset is that: of his four kids, three own their own house and one does not.

Why would we protect the father from fraud , but not from mistake ? Remember
Riggs v. Palmer? (JOYCE! His case in the
Court of Appeals – he lost – there was nothing in the statute that said if D killed his father, he didn’t get to keep the money. But the Court couldn’t stomach that result – it is against public policy to let killers walk with their inheritance). Many people make mistakes. There aren’t that many people
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that go around defrauding other people.
This is like in tax; we have a presumed method of repayment. o Patrick

contestants wanted to either throw the will out or correct the will because of the mistake. If the will is entirely thrown out, then all four kids would have shared the house (which is what they wanted to happen, but the testator had no desire for his kids to take through intestacy. This would be entirely against the testator’s wishes). On the other hand, if the Court would have corrected the will on the basis of mistake, then it would be more aligned with what the testator’s wishes were. Reformation is not allowed, however.

Gifford

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 (page 331).

Campbell v. French

cited to in Gifford. Campbell started
DRR. Campbell is about mistake. Gifford says don’t even try to get relief for a mistake unless the mistake is on the face of the will.
 Courts don’t want to do things that are the opposite of what the testator wanted. So, for example, in Gifford, the woman thinks her son is dead. The fact of the matter is that she wouldn’t have given him money anyways – so the Court shouldn’t correct the mistake and allow son to take!

Patrick

Joyce talked to Wells about this case. You can make the same arguments in cases of fraud, but the big difference with a fraud case is that there is a wrongdoer. For instance, in Riggs v. Palmer, the alternative is unacceptable.
5.
Mistake Handout – Correcting Mistakes
CASES :
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.

Judge Bellacosa wrote the opinion.

What happened?
To E for life, remainder ½ to L, ½ to R
If L or R predecease E, ½ share to “child or children”
If L or R predecease E, “without issue,” ½ to L or R
What happened:
L predeceased and was survived by J and D’s two children (D predeceased L).
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L
J D
d1, d2

D1 and D2  child or children really means issue.

J  J says, no, child or children does NOT mean grandchildren. J wins!

Joyce

wants us to see that there is a mistake here. We don’t know what T meant. The mistake is that the draftsmanship is screwed up. Don’t say “child or children” and then say
“issue.” Say either/or!

Bellacosa

sure there is a fight over the construction. But as far as the court is concerned, child or children has a plain meaning and we do not hold that it includes grandchildren in its meaning.

Dissent  look at the will, it’s messed up. Let’s fix it! This is the threshold question – do you fix it?! The question is not
HOW to fix it, but rather, DO we fix it? And the majority held that you don’t fix it.
Unreported Erie County Case
 “To her children” does not mean “to my children.”

This is a mistake in draftsmanship.
Carroll
 “To my nephews” does not mean “to my and my wife’s nephews.”

This is not ambiguous – this is a mistake in expression.
Recent Case Decided by Judge Wells
 where a will says in the first instance, “to my four children,” and later on, it refers to “my children,” the court construes “my children” to mean the four children (even though two children were not blood related).
 If my wife predeceases me, then the house proceeds to “my four children.”

T has only two children.

The woman he was married to had her own two children, and T treated them like kids.

It is obvious T meant those four kids.

The problem: if my wife predeceases me, then the rest of the estate goes to “my children.”

Question

does the rest of the estate go to just T’s two kids, or to all four kids?

Wells

all “the rest” goes to the FOUR children! He calls the four kids his children. So when he refers to “my children” again, he means the four children. If he wanted my children to mean only his two children, he would have said so.
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
Joyce

first say this is a mistake. Even if T didn’t think he was making a mistake, say it is a mistake because it is screwed up draftsmanship. This is a patent ambiguity.
Latent Ambiguity
 A latent ambiguity is an ambiguity you don’t know about until you try to apply the provisions of the will. It looks okay on the face of the will, but there is a mistake that does NOT appear on the face of the document.

Courts are amenable to fixing latent ambiguities.
Britt  testator’s declarations are not admitted to evidence when related to testamentary intent. They are only admitted when used to clarify latent ambiguities.

T owns two adjacent lots. When he refers to one address, does that include both lots, or just one lot?

Mistake

the draftsmanship is giving people problems!

Courts correct latent ambiguities. They will look at extrinsic evidence and possibly correct the mistake. Instead of saying that there is a mistake and the mistake must be lived with, the court will try to help out and correct it.
Patent Ambiguity

Ambiguity that is apparent on the face of the document.

Courts do NOT like to fix patent ambiguities.
Knupp  do not fill in the blanks on a will.
 T left “all the rest” to his residuary legatee, but no such person was named! Then what? If it’s a patent ambiguity, the court will NOT fix it. The court says that would be doing much for the testator, the testator has not done enough.

Make sure that the intention of the legislature is not ignored when fixing a mistake. It does no good for the spirit of the statute to require the will be in writing, and then fill in the blanks. Are you helping out the testator or are you hurting the statute?
“To Sally Furst, the Mayor Topeka, Kansas”

First: who is the mayor of Topeka? Not Sally Furst! So this is a latent ambiguity.

Did T mean to bequest property to Sally or the Mayor?

If you live in Topeka, Kansas, this is a patent ambiguity.

There is no point to distinguishing between patent and latent
 it doesn’t matter. If Sally was the Mayor, then this is just a plain old latent ambiguity.
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“My house and contents to X. The contents of my attic to Y.”

Patent ambiguity

the guy screwed up!
“To the NY Mets.”

T meant to say NY Jets! T hated baseball. He loved football.

This is just like the Gibbs case.
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.

Accurate description problem.

T left property to RJK, but meant to leave it to RWK.

The court gives it to RWK, even though he lives nowhere near the address listed in the will. There is actually a person, RJK, who lives at the address!

Why did the court consider the evidence to decide to give the property to RWK? The court used the “sleep at night” test.
Could the court sleep at night if they gave it to RJK? No, probably not. But the court could have decided the other way, just to teach people a lesson to be careful when drafting wills.

Deal with distinction between inducement on one hand, and the expression on the other. o Inducement

correcting the mistake for inducement is not good (Joyce). o Expression

correcting for mistake of expression is fine (Joyce).
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.

H and W execute wills that are the same (except for their names), at the same time. They accidentally sign the other person’s will! The execution ceremony took place at the same time. It was a pure accident. Judge Pecum in Binghamton used Snide to fill in the blanks for another will contest.
6.
Insane Delusions

Joyce: we have been talking a lot about all or nothing. But these problems come up with respect to partial invalidity just as often.
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o Hypo: $1,000 to X and the rest of the estate to my spouse. The estate is worth $5 million. But, the bequest could have been the result of fraud, mistake, undue influence, or delusion. T believed that X was
Elvis Presley, and so T leaves $1,000 to X. o We treat this situation as though T only had delusions as to X being Elvis, so we only strike that provision. T did not lack testamentary capacity in general – only partially ! o Pace

don’t let a person tear down his house and enforce a covenant (even though the covenant was okay, it was a part of the bigger plan). So here, don’t let one minor mental delusion take out the entire will! o If this person lacks testamentary capacity generally , then the whole will is thrown out. o Fraud, undue influence and delusion  can be used to throw out partially . o X will not get the $1,000 if it is shown that T was mentally deluded when he left the money to X. o Mental delusion

it is a big mistake. If a big mistake, when weighed against all evidence, is shown, then the court will say that the mistake was induced and the particular provision will be revoked. The court will give partial relief – the court does not have to throw out the entire will!
X.
A.
Anti-lapse
1.
§ 3-3.3

can only use this statute if you are in a close relationship
(brother, sister or issue) and the legatee has issue of their own.
2.
§ 3-3.4

residue of residue
B.
Problem on page 217 of Syllabus
T’s will provides as follows
:
“I leave Whiteacre to my friend, X.”
“I leave $10,000 to Y.”
“I leave Blackacre to Z, if she survives me.”
“The rest of my estate I leave to my issue.”
T is survived by the following :
John – son of predeceased X
Jane – T’s niece. Jane is the daughter of T’s predeceased sister, Y
Joe – T’s nephew. Joe is the son of T’s predeceased brother, Z
The following issue –
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(A) a1 a2
(B)
b1
(C) D

children

grandchildren
A, B, C and D are alive when T executed the will.
WHO TAKES WHAT?

Anti-lapse Statute

3-3.3. If people are very closely related
(issue, brothers or sisters), those people are close enough so that the statute reverses the general rule that if you do not survive, it lapses. It means that T would have preferred that it not lapse, and go to the issue of those people who are close.
Even though there is an implied condition of survivorship when you give a gift (that person you are giving to will be alive to take it), even if your sister/brother/issue is dead, it will go to their issue!

John

does not take Whiteacre! Why? Without more, the common law says that there is an implied survivorship with all gifts. X’s gift lapses and it is void. X’s gift then drops into the residuary.

Jane

Jane’s mom, Y, would have gotten $10,000. The money then lapses to Jane and Jane gets $10,000 under the anti-lapse statute. If Y didn’t have issue, then the statute does not apply and the general rule applies and the gift will lapse (go to the residuary).

Joe

Blackacre was to go to Z if Z survived T. Joe is Z’s son. Z is a close person – T’s brother. Z did NOT survive T, because Z is dead. But Z left Joe – does Joe take Blackacre?
NO. Joe does not take Blackacre because 3-3.3 is a DEFAULT statute. However, 3-3.3(a) allows people to change their minds. When T puts a contingency on Z’s gift, this contingency falls within 3-3.3(a). Joyce: when T says he leaves Blackacre to Z is survives T, then T is saying nothing more than what T said in the previous disposition to Y (which is that every disposition has in it an implied condition of survivorship). If there is an implied condition of survivorship, then the rule for lapse should still be applied, even where T actually writes the words “if she survives me.” The
Restatement thinks that this kind of language is surplusage language, but this is NOT the view of the courts! The prudent lawyer would never use this language in the will (“if she survives me”). This allows T to opt-out of using the anti-lapse statute. Tell your client to be clear when drafting!

A1 and A2  reverse the common law approach. Even if the person does not survive T, and dies leaving issue, then they
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will take. This is a representational notion built in for close relatives, as though this is what T would have wanted.

Issue

get residuary.

C

for our purposes, 3-3.3 does not apply to C because C did not leave issue. What happens to C’s gift? C’s gift is a residuary gift. Normally, if a residuary gift is ineffective, it goes by intestacy . But C is dead and her residuary share goes to the other residuary legatees.

3-3.4
 if you have more than one persons taking your residuary estate, and one of them dies before you, we will not have their portion go to

First: apply 3-3.3.

Second: apply 3-3.4.

A

A is close and A left issue. So 3-3.3 applies.

B

B is close and B left issue. So 3-3.3 applies.

3-3.3(a)(3)

applies to class gifts. This says the rest of the estate is left equally to A, B and D. Individual names! D takes
1/3. A’s 1/3 goes to A1 and A2 under 3-3.3 B’s 1/3 goes to
B1 under 3-3.3.

If T had died without a will and left his issue as shown in this hypo, how would the estate be distributed in intestacy? D would take 1/3. A1, A2 and B1 would combine the remaining
2/3 and split evenly.

All problems can be cured by drafting. Here, the hypo results in distributions to issue differently than if T had died intestate.
If T wanted his issue to take as though he had died intestate, he would have to include that provision in his will!
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