WILLS

Intestate succession
A T who makes a will is presumed not to have intended intestacy and all
provisions in Ts will will be construed to avoid intestacy.
If a will was never executed, or it was not properly executed (SWEPT) then Ts
estate will pass under the law of intestacy. If the un-SWEPT was attempting to
revoke a prior will, then the courts will look to the prior will to distribute Ts
estate.
Where the decedent was survived by: (1 to 6)
o Surviving spouse, no issue, then S.S. gets 100%.
o S.S. and issue, then S.S. gets the first $50,000 plus 12 of the balance and
the issue gets other 12 by representation.
o Issue but no S.S., issue gets 100% by representation.
o No spouse, no issue but Ds parents and siblings are alive, then parents
take 100%.
o No spouse, no issue, no parents but siblings are alive, then siblings (or
issue of predeceased siblings [nephews and nieces] under anti-lapse) take
100% by representation.
o If none of the above survive, the net intestate estate is divided into two
equal parts with one part passing to Ts maternal grandparents side and
one-part to the paternal grandparents side of the family [in search of
living heirs (grandparents, aunts, uncles, 1st cousins, but only as distant as
children of first cousins)].
If there are no surviving heirs within this degree of kinship, (1 to 6 above), then
the intestate estate escheats to the State of New York.
H, W, 2 children and W is pregnant. H dies intestate with a $200,000 net estate:
A residuary clause in Ts will indicates the Ts strong intent that Ts property not
pass under the rules of intestacy. Thus, where the residuary is left to 2 or more
(my friends X and Y) but Y predeceased T, then Ys share will not pass into
intestacy but passes to the other co-residuary X.
Executing a will
To be valid, a will must be SWEPT:
o S: signed by an adult
o W: in writing
o E: signed at the end by the testator
o P: published
o T: signed by 2 witnesses (who dont have to be adults) must sign
within 30 days of each other, in the testators presence
NY requires strict adherence to the SWEPT procedures.
The will must be written and signed by an adult but NY recognizes nun
cuputative (oral wills with 2 witnesses) and holographic wills which are
unwitnessed, but written and signed entirely in the Ts handwriting. If
executed by a member of the armed forces or someone accompanying the
armed forces, in combat in an enemy country, or on the eve of embarking to a
war zone, it is good for 1 year following discharge from the service.

If T has become incompetent to execute a new will when the 1 year SOL
expires, then the old handwritten will remains indefinitely in effect until T
regains competency and can execute a new will.
T must sign the will at the very end. Any provision appearing under Ts
signature (other than the witnesss signature) will be disregarded by the
surrogate even though it was there when the will was signed. Likewise, any
amendment to the will made after its execution is in invalid whether inserted
above or below the signature.
A third person can sign for the T but it must be at Ts direction and in Ts
presence and there must be 4 signatures on the will: the 3rd persons signature,
the Ts signature signed by the 3rd person and 2 witness signatures.
At 2 witnesses (who do not have to be adults, can be minors) must sign the
will either separately or together but each must sign in front of T. T may sign
the will:
o 1. In the presence of the 2 witnesses or
o 2. Alone but he must later show and acknowledge his signature to the
2 witnesses but they do not have to see T sign the will
if the witnesses do not sign together, then to reduce the possibility of fraud, they
must sign within 30 days of each other but the EPTL creates a rebuttable
presumption that the 30 day period was met.
The T must publish the will, i.e., T or his attorney must declare that it is Ts will
Interested witnesses
If a beneficiary named in Ts will is also a necessary will witness then the will
is still valid but the witness forfeits the bequest. However, if at the time of its
execution, there were at least 2 other disinterested witnesses who received nothing
under the will then the extra witness will not forfeit his bequest b/c her testimony
is not necessary to establish the will. If 2 of the 3 witnesses or all 3 witnesses
were interested, then all will forfeit their bequests b/c at the time of the wills
execution, it was not witnessed by 2 people who received nothing under the will.
If the necessary interested witness is also an intestate distributee (a relative who
would benefit if there was no will), then the witness is permitted to take the
bequest in the will or her intestate share-whichever amount is less.
A necessary will witness is not disqualified from:
o 1. Taking under a subsequent codicil naming her as a beneficiary or
o 2. Acting as the trustee of a testamentary trust or as the executor who is
named in ts will since these appointments provide compensation for
services and are not testamentary bequests
if the attorney who drafted Ts will is named as the executor of Ts estate or the
will names another attorney or employee in the attorneys firm then the testator
must acknowledge in a separate document signed by T and signed by a
disinterested witness that T was aware that anyone could be the executor, and that
by naming Ts attorney, that attorney may receive 2 commissions (executors fees
and attorneys fees). Failure to obtain this document requires the surrogate to
reduce the executors fees by 50%.
Incorporation by reference

NY (minority view) does not recognize incorporation by reference into a will,

thus, an unattested (unwitnessed) document does not become part of the will even
though the will specifically referred to it. For example: I leave the contents in my
house to those people listed on the yellow sheet in my safe deposit box. NY will
not incorporate the yellow sheet into the will. 1 NY exception allows
incorporation by reference for charitable bequests.
A will can incorporate the terms of an existing intervivos trust executed prior to or
contemporaneously with the will. This is called a pour over provision but the trust
instrument must be singed and the signature acknowledged at the time the will
was executed.
Amending a will by a codicil
A codicil edits or supplements a will and it republishes the will on the date the
codicil was SWEPT. The EPTL specifically states that a codicil may not revoke a
will.
A will and its codicil are regarded as a single instrument for the purpose of
determining testamentary intent.
A properly executed codicil may revive an existing earlier will that had been
expressly or impliedly revoked by a subsequent will. However, a codicil can
never revive or republish a defectively SWEPT will (e.g., only 1 witness), b/c in
NY, there is no incorporation by reference into wills.
The execution of a codicil may effect:
o 1. Advancements
o 2. The rights of after born children (abc)
o 3. A divorced surviving spouse
b/c by executing a codicil, it republishes Ts will as of the later date the codicil
was executed.
Revoking a will
A will can be revoked in 2 ways:
o 1. In a subsequent will either expressly or impliedly; or
o 2. By the testator, without any witnesses, destroying the entire will by
tearing, burning, cutting, canceling, or obliterating.
There can be no partial revocation of a paragraph or a clause by a physical act.
Such alteration man only be done by codicil or a 2nd will.
In march T, a widower, with 1 son, S, made a will naming his 2 friends, X and Y
to receive everything. In April, T met G and fell in love. And in May, executed
another will leaving everything to G. In June, T died and in Ts safe was the May
will with lines drawn through the signature. Who gets Ts estate? Lines drawn
through the signature is a sufficient physical act to revoke the entire will
(canceling) but this did not revive the earlier will naming X and Y, b/c NY does
not follow the revival doctrine. Thus, T died without a will and S gets everything
under intestacy.
A will may be altered by:
o 1. A subsequent codicil or will
o 2. Subsequent events in Ts life such as Ts marriage or divorce (DAMN
CAR LAW)

o 3. A signed document with Ts signature acknowledged like a deed that

using precise language wholly inconsistent with the terms of the existing
will.
Lost wills
In NY, it is a felony to unlawfully conceal or destroy a will or a codicil with the
intent to defraud.
Under the EPTL, if Ts will was last known to be in Ts possession, but it cannot
be found after Ts death, then a very strong presumption arises that T destroyed it
unless its absence can be explained by clear and convincing evidence.
To rebut the presumption and admit a lost will to probate, show:
o 1. It was duly SWEPT
o 2. It probably was not destroyed by T; and
o 3. Establish the contents of the lost will by:
a. The testimony of any 2 people who read the will (they usually
are not the 2 SWEPT witnesses)
b. An unexecuted copy of the will
Foreign wills
What if the will offered for NY probate was a holographic will executed outside
NY? A will is valid and admissible in NY if SWEDEN:
o S: signed by T
o W: it is in writing and it is valid according to the laws of EDEN:
E: where it was executed
D: Ts domicile at death
E: Ts domicile when he executed the will
N: the laws of NY (SWEPT)
Contesting a will
A will contest can TIE up an estate.
The wills validity can be contested based on: TIE
o T: lack of testamentary capacity
o I: undue influence or fraud
o E: improper execution where the will was defectively SWEPT
The opponent of the will has the burden of proving undue influence. But the
proponent of the will has the burden of proving Ts capacity (mental) and the
wills valid execution.
Lack of capacity
T must be at least 18 years old and of sound mind so that without prompting T
knows the extent of his estate (his assets) and T knows the natural objects of his
bounty.
The capacity required to execute a will is less capacity than to enter a K.
Testamentary capacity is concerned with Ts mental condition at the moment the
will was executed regardless of Ts mind prior to or subsequent thereto.
Undue influence is unfair psychological persuasion exerted on T to be named as a
beneficiary in Ts will. It involves the misuse of a position of trust and
confidence. A prima facie case of undue influence arises where a beneficiary
named in the will participated in the preparation and/or execution of Ts will.
Once the inference is raised, then if the beneficiary does not come forward to

rebut the inference (to burst the bubble of the inference), then the surrogate may
infer that undue influence existed.
Under NYs Model Rules of Professional Conduct, a lawyer shall now:
o 1. Solicit any gift from a client; or
o 2. Prepare an instrument giving the lawyer or a lawyers relative any gift
unless the lawyer is related to the client AND a reasonable attorney would
conclude that the transaction was fair and reasonable.
The NY Court of Appeals has held that absent a family relationship, a bequest in
the will to the attorney who drafted the will gives rise to an inference or perhaps
a presumption of undue influence.
Events during Ts life affecting an executed will
Once a will or a codicil has been validly executed, then the following subsequent
events may affect distribution under Ts will: DAMN CAR LAW
D: Divorce
A:
M: Marriage
Marriage: Exempt property passes outside of the estate and is not considered part
of the estate for intestacy or right of election purposes. Exempt property cannot be
claimed by the decedents judgment creditors. Exempt property passes directly to
a surviving spouse, or, if there is no surviving spouse, to children under the age of
21. EPTL 5-3.1. In that regard, the following property is not an asset of the
estate but vests in the surviving spouse or children:
All housekeeping items, clothing of the decedent, computers,
musical instruments, electronic devices, clothing, furniture,
appliances, and jewelry not to exceed $20,000. This does not
include items used exclusively for business purposes. Also, if
jewelry was a specific bequest in the testators will, then it is not
considered exempt property.
Videotapes, discs, software, religious items, pictures, and books
not to exceed $2,500;
Cash or other personal property not to exceed $25,000 (but only
after payment of funeral expenses);
One of the decedents cars or the value thereof not to exceed
$25,000 net value; and
Domestic and farm animals, feed for 60 days, farm machinery, a
tractor, and lawn tractor not to exceed $20,000.
If the automobiles value exceeds $25,000, the spouse can take the car
and reimburse the estate for the value exceeding $25,000. The spouse also
can take the value of the car (not to exceed $25,000) in lieu of the car
itself. If the testator made a specific bequest of the car, the spousal
exemption will defeat that bequest, but if the cars value exceeded
$25,000, then that excess amount paid back to the estate by the spouse
goes to the specific legatee. If the decedent did not have any of the above,
then no allowance can be made for the value. Exempt property (which can

total up to $92,500), together with the right of election or intestate right to

the first $50,000, guarantees the surviving spouse approximately
$142,500. The surviving spouses right to exempt property can be
specifically waived in a prenuptial agreement. Matter of Marrone, 36
Misc. 3d 225 (Sur. Ct. Queens County 2012).
Surviving Spouses right of election:
Under NY a homosexual or a heterosexual surviving spouse of a NY domicile may
not be completely disinherited. He or she is entitled to $92,500 of exempt
property plus either $50,000 (for Ts net estate of a $150,000 or less) or 1/3 of Ts
net estate- whichever amount is greater.
The net estate consists of Ts property located inside or outside of NY minus
exempt family property passing to the surviving spouse and less debts and
administrative expenses. A spouse may specifically waive her right of election,
e.g., in a pre-nuptial, a nuptial agreement or a separation agreement but that
signature must be acknowledged in the same manner required to record a deed,
otherwise the waiver is unenforceable. The notary acknowledging the signature
must either know the person signing the agreement or secure evidence that the
person signing was the person described in the document. For purposes of
determining the value of the surviving spouses elective share, the decedents net
estate or net intestate estate is increased by the value of any testamentary
substitutes passing upon the decedents death including those passing to the
surviving spouse. BRAAG IT JP
o B: US savings bonds jointly held with another but only for the amount that
T contribute in purchasing the bonds is brought back into the Ts estate
o R: 50% of the decedents retirement plan including pension plans and
IRAs
o A: shareholder agreements entered into after the marriage restricting the
transfer of Ts shares of stock held in a closely held corporation
o A: annuity contract payments continued to be paid after Ts death
o G: gifts causa mortis
o I: intervivos gifts exceeding $14,000 if made within 1 year prior to death
o T: pre-marriage or post-marriage totten trust bank accounts
o J: post-marriage jointly held:
1. Bank accounts (JBAs)
2. Stock brokerage accounts
3. Real estate (JT or TE)
4. Personal property but only to the extent the consideration was
furnished by the decedent.
Property jointly held with the surviving spouse creates a conclusive
irrebuttable presumption that of the consideration was furnished by the
decedent, thus only 50% of that jointly owned asset between the spouses is
brought back in the decedents estate.
o P: Pay on death stock brokerage accounts which are treated just like
totten trust bank accounts.
Life insurance policies on Ds life are not testamentary substitutes.
To determine a surviving spouses elective share, take the net probate estate and

then add to it all BRAAG IT JP testamentary substitutes including any passing to

the surviving spouse. Then divide that total figure by 1/3 to get the surviving
spouses elective share. Then, subtract the value of any testamentary substitutes
and any testate or intestate property passing to the surviving spouse. The resulting
figure is the surviving spouses net elective share to which the other
beneficiaries of the estate and the beneficiaries of testamentary substitutes must
contribute proportionally. Ex. W had a net probate estate of $900,000 left entirely
to her son plus a $300,000 totten trust naming Y. Ws will left H nothing. Under
his right of election, H is entitled to 1/3 of $1,200,000. Y would contribute
$100,000 to toward Hs $400,000 elective share b/c Ys $300,000 totten trust
account is 25% of Ws entire electable estate ($1,200,000). S would contribute
75% ($300,000) toward Hs $400,000 net elective share.
After born children (ABCs)
In NY, if T had children when T executed the will, those children may be
completely disinherited or simply left out of the will by a parent.
ABCs include marital children, non-marital children or adopted children.
If Ts children are born or adopted after T executed the will, then they may affect
Ts will:
o 1. If T had no children when T executed the will (Even if T or Ts spouse
was pregnant at the time) then any ABC is entitled to an intestate share of
Ts estate unless T provided for the ABC during Ts lifetime.
o 2. If T had children living but T made no provision for them in Ts will
then an ABC is not entitled to share in Ts probate estate
o 3. If T had children and provided for them in Ts will then any ABC will
share proportionality in the ABCs siblings total bequests unless T
provided for the ABC during Ts lifetime.
T executes a will leaving S son $60,000 and D daughter $120,000. Total bequest:
$180,000. T has X an ABC.
Non-marital children
A non-marital child is entitled to inherit by intestacy through a testamentary
bequest to Ts children under the anti-lapse statute as an ABC if born after her
parent executed a will and she can benefit from a parents wrongful death from:
o 1. Her birth mother and her mothers heirs or
o 2. Her biological father and parental heirs but only if:
a) there was a family court order of paternity
b) the father filed a signed acknowledgement of paternity
c) paternity is established by clear and convincing evidence which
may include, but is not limited to:
1. A DNA test administered any time
2. The father openly and notoriously acknowledged the
child as his own
Absent contrary language in an instrument, adopted or non-marital children are
treated exactly the same as marital children. Thus, whenever an instrument refers
to issue children grandchildren descendants heirs or disbributees it
shall be construed to include adopted and non-marital children.
Divorce

 Query: how does Ds DADs judgment affect Ts estate? If a judgment of divorce,

annulment, or a judicial dissolution or a separation judgment is granted, it
automatically voids and revokes Ts former spouse named on a TRIP JAW
document. It treats the former spouse as immediately predeceasing the testator.
o T: totten trust
o R: revocable lifetime trusts
o I: life insurance policy
o P: pension plan
o J: jointly held real property/bank accounts
o A: a power of attorney
o W: a will
If T executes a codicil to Ts will after the DADs decree, then it reaffirms and
republishes the old will as of the post-DADs date including the bequests to the
former spouse.
Interrorem Clauses/no-contest clauses
A wills NCC expressly provides for forfeiture of the bequest if the beneficiary
unsuccessfully contests (TIE) the validity of the will or any of its provisions. The
purpose of an NCC is to discourage groundless TIE litigation.
A NCC is not breached by I FAACED SIR:
o I: infants
o F: litigation to establish the will as a forgery but only if based on probable
cause
o A: demanding an accounting of the executor or questioning his conduct
o A: NYs attorney general can always the validity of the will on behalf of
charities who have been affected that by will.
o C: a petition for the surrogates construction of a clause in Ts will to
ascertain Ts intent. Conditional legacies in a will frequently are the object
of a construction proceeding. Conditional legacies are enforceable unless
they violate public policy.
o E: surviving spouse can always exercise the right of election without
violating NCC.
o D: prior to filing a TIE objection, the EPTL allows PAID MAIL pre-trial
discovery of the SWEPT witnesss, the proponent of the will (a person
named in the will who has petitioned the surrogate for probate), the
executor named in the will, and the attorney who prepared the will also on
application to the surrogate, based on special circumstances any other
person who may relevant information regarding the wills validity. The
NCC clause cannot prohibit this statutory discovery. Under the 3 year- 2
year rule, usually the surrogate limits pre-trial discovery to 3 years before
the wills execution and 2 years thereafter or to the date of deathwhichever is earlier. Even though the attorney-client privilege does not
end at death, the CPLR states that an attorney who prepared Ts will shall
be required to testify as to Ts REP (revocation, execution, or preparation)
of Ts will, but Ts attorney cannot testify about confidential
conversations that would disgrace Ts memory.
o S: an objection to the surrogates court subject matter jurisdiction which is

limited to the affairs affecting the decedents estate

o I: mentally incapacitated person for whom a guardian has been appointed
can always contest a will without violating NCC
o R: the will offered for probate was revoked by a later will if based on
probable clause
Advancements
A valid intervivos advancement of a testate or intestate share must be documented
in writing executed contemporaneously by the donor or the donee evidencing the
advancement intent. There can be no oral advancements. They are treated simply
as intervivos gifts.
Lecture 39: Wills continued and Family Law
Wills
Advancements:
$100,000 advancement on Ts intestate estate, T died and his net intestate estate
was $800,000. No surviving spouse but 3 children. Add $100,000 into the estate
($900,000) divide by 3. The child who got the advancement gets $200,000 since
he already got $100,000 as an advancement.
A valid testate advancement on an existing will is extinguished if T executes a new
will or a codicil after the advancement. Here the terms of the new document
control and the advancement is no longer considered.
Lapsed legacies
A bequest in a will or in a TRIP JAW document fails if a named beneficiary in one
of those documents uses I DROPS:
o I: breaches an interrorem clause in the will
o D: she became Ts former spouse because of a DADS decree
o R: renunciation of the bequest within 9 months
o O: the beneficiary does not survive T by one hundred and twenty hours (5
days). If not, then Ts will, testamentary substitutes or life insurance on
Ts life is distributed as if T survived that named beneficiary
o P: the beneficiary predeceases the testator
o S: the beneficiary slays the testator
In IDROPS where the survivorship right involves a concurrent estate with a
survivorship interest (JT or TE), then the right of survivorship is extinguished and
the surrogate distributes the realty as if it was a tenancy in common.
An exception to the IDROPS lapsed legacy rule is the anti-lapse statute involving
bequests to Ts issue or Ts siblings which do not lapse back into Ts estate but
instead, the legacy drops down to the issue of that predeceased beneficiary. AL IS
(anti-lapse issue or siblings)
The anti-lapse statute can be defeated by specific contrary language in Ts will,
e.g., $50,000 to B, my brother but if B shall predecease me, then to my friend, F.
IN her will, T, a widow left everything to her 3 children A, B, C. When T died:
o 1. Child A survived T and A had 4 children- L, M, N, O
o 2. Child B, predeceased T leaving 1 son, S

o 3. Child C predeceased T, leaving 3 children X, Y, Z.

under per sterpis distribution used for Sept 1, 1992 will, Grandchild S would get his
parent (B) wouldve received (1/3 of Ts estate), likewise, X, Y, and Z would get
the 1/3 that their parent C wouldve received (1/9 each- 1/3 or 1/3). However,
with distribution by representation, used on will executed on or after September 1,
1992 as well as for intestate distribution, child A still gets 1/3, but children B and
Ss shares are combined and divided equally into 4 parts for each of the
grandchildren (by representation among the grandchildrens generation). S, X, Y
and Z get 1/6 each.
Today per stirpis distribution is used only if Ts will specifically requests it.
Renunciation aka disclaimer
Renunciation allows a surviving beneficiary of a testamentary substitute, a life
insurance policy, a life estate, a will, or an interest in an intestate estate to refuse
to accept all or part of that interest.
The renunciation cannot be made once the renouncing party has accepted the
property.
Assigned renunciation must be filed with the surrogate and with the estates
representative within 9 months from the date of death. It must be accompanied by
an affidavit that the renouncing party has not received nor will receive any
consideration for the renunciation. The renouncing party is treated as if she had
died immediately before the T (I DROPS).
Once it is filed with the surrogate, a renunciation is irrevocable.
Cy Pres (as near as)
In the absence of a gift-over provision in the will, this doctrine is used whenever
possible to sustain a general charitable bequest. It prevents a charitable bequest
from lapsing if the charity named in the will no longer exists.
Ademption
A Specific disposition in a will is a bequest of a specific identified item of Ts
property: (a Picasso painting, a Tiffanys lamp, blackacre, or my diamond ring).
If the property specifically described in Ts will has been lost, destroyed, stolen or
conveyed away (a gift or a sale) at the time of Ts death, then the beneficiary does
not receive that item. If the property was insured, and the insurance proceeds had
not been paid until after Ts death, then the beneficiary receives the insurance
proceeds.
Ademption does not apply to:
o 1. General legacies which are specific amounts of money or
o 2. Demonstrative legacies which are bequests of money from an
identifiable source, e.g., $20,000 of my IBM stock or $30,000 from my
account at Citibank.
If at the time of Ts death the stock had been sold, or the bank account closed or
depleted, then the bequests are paid from Ts estate b/c the bequests were
demonstrative legacies that do not adeem.
Abatement
Abatement occurs when a T makes too many general bequests which one added
together exceed the Ts net estate available for distribution.
Wrongfully killing the testator aka slayer rule: when a beneficiary kills the testator,

by an intentional or reckless homicide: apply IDROPS and the forfeiture of TRIP

JAW assets b/c a person may not profit from his own wrong and acquire property
by his crime.
Slayer Rule
If the slayer and the victim share a joint bank account or a joint brokerage account,
then the slayer is entitled to only those funds that he deposited into the account
and not to a 50% interest in his victims deposits or to a right of survivorship.
A killer will not forfeit if the homicide was done in SIN:
o S: self-defense
o I: he was insane at the time of the homicide
o N: negligence (it was accidental)
How does a matrimonial decree affect a former surviving spouses DIE rights?
D: Wrongful death of the former spouse
I: Intestacy: the former spouse had no will:
E: the right of election against a deceased former spouses estate:
DIE rights are defeated by DAVIS:
o D: a DAD decree of divorce, annulment or dissolution (not a separation
judgment)
o A: an unjustified abandonment by the surviving spouse without the other
spouses consent which continued until the other spouses death. A parent
who:
A: abandons a child
B: had parental rights terminated by a court (MA PA)
C: failed to support the child until the childs 21st bday
o V: the partys marriage was void
1. Bigamous
2. Incestuous
3. A marriage where the spouse was 13 years old or younger when
married
o I: the surviving spouse as a plaintiff earlier had obtained an invalid DAD
decree outside NY. as a sanction against a spouse who obtained the DAD
decree, it will be recognized in NY for the purpose of defeating the
surviving spouses DIE rights.
o S: the surviving spouse was a defendant in a separation judgment obtained
in NY based on the surviving spouses fault, e.g., cruel and inhuman
treatment or adultery
A separation agreement, a nuptial agreement or a pre-nuptial agreement has no
effect on a will or DIE rights unless that agreement uses precise language and the
signatures are acknowledged in the same manner required to record a deed.