NY Bar Exam: All NY Subjects

537 terms by Karan_Malhotra 

Create a new folder

Advertisement Upgrade to remove ads

What are the four forms of authority?

Actual Express: P tells A directly that A can do a task

Actual Implied: A reasonably believes P has given A the authority

Inherent: P, a pizza shop owner, tells A to deliver a pizza to X. A has the inherent authority to take the pizza from the pizzeria (it is not tresspass), because it is a necessary task to complete the delivery.

Apparent: A third party relies on the appearance of agency when dealing with A

What consent is needed to create an agency relationship?

Both the principal and the agent must consent

What are the three ingredients of an agency relationship?

Assent, Benefit, and Control

What is ratification?

When P ratifies an unauthorized transaction by A, P becomes bound

When is an agent liable in contract?

When the principal is undisclosed, either partially or fully. Partially: existence is known, but identity is not.

What is the difference between an "exclusive" and a "nonexclusive" broker's contract

Exclusive: if anyone (including owner) produces a buyer who is ready, willing, and able to buy, broker gets commission

Nonexclusive: if the broker produces a buyer who is ready, willing, and able to buy

Can a non-licensed broker enforce a claim for commission?

No

When is a principal liable for the torts of its agent?

Employer-Employee Relationship
AND
Conduct is within scope of the employment

What are the two exceptions for tort liability of a principal when there is no employment relationship?

(1) Inherently dangerous activities
OR
(2) nondelegable duties
-construction workers
-owners of land
-common carriers

What is the difference between a frolic and a detour?

Frolic: substantial departure from employment
(2) Detour: small side trip that does not erase liability

When is an employer liable for intentional torts?

(1) Force is authorized (bouncer)
(2) Promotion of employer's business (hires thugs to beatup picketers)
(3) friction is inherent (bill collection)

What if an employee trip has both a personal and a business purpose?

The business purpose is sufficient. Multi-purpose trips are still within the scope of employment

Is commuting within the scope of employment?

No

What are the Neumeier Principles?

Harm occurs in State Y

(1) P and D are from same place, apply that place's law


(2) One party is from Y, and the law in Y would be beneficial to their side. Apply Y.


(3) any other case: Apply Y unless
-forum has an interest
-would not impair "multi-state system"
-would not produce "great uncertainty" for litigants (public policy exception)

What is the classical choice of law approach?

Lex Loci Delicti. Apply the law where the transaction took place.

What is the difference between "conduct" laws and "damages" laws?

(1) Damages, apply Neumeier (eg guest statute)

(2) Conduct, apply the place of the harm always (eg speed limit)

What is interest analysis?

The choice of law method that applies the state law from the state that has "the greatest interest" in the outcome.

Step #1: Is there a false or true conflict?
False conflict: only one state has an interest
True conflict: both states have an interest

Step #2:
False conflict: apply the law from the state that has an interest
True conflict: if the forum has an interest, it will apply its own law

Does NY have a dram shop law?

Yes, NY has a dram shop law. This means a bartender may be liable for overserving a patron in the form of vicarious liability for the patron's harms.
In a conflict of laws situation, NY courts should not apply dram shop liability to an out of state defendant from a state where there is no dramshop law. It is unlikely that the out-of-state bartender would adjust his conduct in conformance with the dramshop law in this case.

A NY plaintiff purchases a ticket and then boards an aircraft from NY to MA. The plane crashed in Massachusetts. The plaintiff's family brings a wrongful death action.

NY has an unlimited recovery for wrongful death
MA has a $15,000 damages cap for wrongful death

What law applies?

Here, while the vested rights approach would point to MA law as the situs of the injury, this approach is no longer followed in NY.

NY would apply interest analysis governed by Neumeier principles.

Here, while MA arguably has an interest, NY also has a legitimate interest in ensuring its domicilliaries can get a substantial wrongful death recovery. Therefore NY law applies

What are the three exceptions to an express choice of law provision in a contract?

(1) Public policy of an interested state is contrary to the choice presented, and that choice of law has no interest

(2) No reasonable basis for choice: "no substantional relationship to parties of transaction"

(3) Lack of "true consent" by one party

What are the $ minimums for the NY General Obligations Law?

$250,000 means that a NY choice of law clause is valid regardless of any connection to NY.

What law governs automobile insurance policies?

The law of the state where the policy was written

NY unlicensed real estate broker alleges an oral "finder's fee" agreement from a NJ corporation. NJ corporation has many NY contacts. The oral agreement was alleged to have taken place in NJ.

The broker sues in NY court to enforce the fee. NY law does not allow oral contracts on these facts; NJ law does. What choice of law?

NY. NY has a strong interest in ensuring that, as an international center of commerce, principals can count on the fact that they will not be held accountable for fraudulent or unfounded claims.

What are three fallback exceptions to applying the law of a foreign jurisdiction?

(1) contrary to public policy (rare)

(2) foreign law is merely procedural

(3) foreign law is a penal or tax law

What is the choice of law for real estate?

The law of the situs (vested rights)

What is the choice of law for inter vivos transactions of personal property?

Law of situs (vested rights)

What choice of law for personal property passed via death?

Law of the decedent's domicile at the time of his death

What choice of law for real property passed via death?

Law of situs

What is the principle of comity?

A foreign country judgment will be enforced if

(1) Foreign court had jurisdiction
(2) Fair procedures were used in adjudicating case

Court is entitled to use value judgments to resolve the issues

What are the rules pertaining to NY real estate agents?

(1) Entitled to commission upon furnishing a ready willing and able buyer

(2) Contract must be in writing UNLESS licensed attorney or real estate broker (then oral is ok)

What are the rules pertaining to options without consideration?

(1) Multistate: option is invalid; option contract must be supported by consideration

(2) UCC: "Firm offer" provision. Signed writing by a merchant for up to 3 months

(3) NY: Writing/Signed + states "irrevocable", the offer is not revocable during time stated

When can the offeror revoke a unilateral contract offer in NY?

(1) Multistate: part performance creates an irrevocable offer, and offeree is entitled to complete performance and demand payment

(2) NY: part performance is immaterial; offeror can revoke at any time before performance is completed

When is moral consideration binding?

Multistate: never

NY:

(1) writing
(2) expressly stated
(3) proven
(4) signed by promisor

What are the three additional categories of contracts within SoF?

(1) promise to pay discharged debt
(2) assignment of insurance policy or promise to name beneficiary
(3) commission or finder's fee unless attorney/licensed broker/auctioneer

Is suretyship within SoF in NY?

Yes. But NY does not adopt the "main purpose" exception to suretyship in SoF. Therefore, any suretyship agreement must be in writing, even if suretyship gets a pecuniary benefit.

A orally contracts with B that A will visit B once a month for the remainder of B's life for a price of $50/week. Within statute of frauds?

Multistate: Yes. This could hypothetically be performed within one year, if B dies within one year.
NY: No. "Lifetime" is presumed greater than one year

A contracts with B for B to paint A's house. B does so. B then gratuitously signs a release that A will not have to pay. Valid?

Multistate: No. no consideration

NY: Yes, as long as its a written instrument.

When does a gratuitous assignment become irrevocable?

Multistate:
(1) performance complete
(2) detrimental reliance

NY: also
(3) signed writing

When does NY have criminal jurisdiction over an out of state defendant?

Whenever conduct in NY was sufficient to establish an element of the offense

What are the NY requirements for a warrant informant?

Higher than the constitution. Applicant must demonstrate:
(1) Reliability of source
(2) basis of informant's knowledge

What is the NY indelible right to counsel?

The indelible right to counsel affords greater protection to D's than the US Constitution.

Kicks in when
(1) D in custody, police are acting "overwhleming to a layperson", and D requests counsel
(2) At arraignment
(3) Filing of an accusatory instrument
(4) Any significant judicial activity

When does NY provide a right to counsel in pre-charge lineups?

(1) police are aware D is represented on another charge
AND
(2) D requests his attorney

police awareness is objective (should have known) rather than subjective

What are the elements of issuing a bad check?

(1) A person as drawer puts a check into circulation
(2) Knowing he does not have sufficient funds to cover
(3) With intent or belief that payment will be refused by drawee
(4) Payment is refused by drawee

Can a single defendant be convicted of conspiracy in NY?

Yes. NY adopts the single guilty mind approach.

Are there any special rules for conspiracy when a co-conspirator testifies?

A D can only be convicted of conspiracy if the co-conspirator's testimony is corroborated by additional evidence

A, B and C conspire to rob a bank. However, on the day of, A gets extremely sick and does not participate; only B and C actually rob the bank. During the bank robbery, B intentionally kills a police officer while B and C are fleeing the bank. Who is guilty of what?

B+C: First Degree Robbery + Conspiracy to commit First Degree Robbery + First Degree Murder

A: Conspiracy to commit First Degree Robbery only. No vicarious liability, since A did not participate in the crime

What is the difference between a "defense" and an "affirmative defense"?

Defense: prosecution must disprove beyond a reasonable doubt

Affirmative Defense: must be raised+proved by defendant by a preponderance.

Affirmative Defenses: insanity, EED, entrapment, duress

Defense: self defense, justification, necessity, infancy

What is the insanity defense standard in NY?

NY: as a result of mental disease or defect, he lacked substantive capacity to know or appreciate either (1) nature and consequence or (2) that such conduct was wrong.

--easier than M'Naghten, but harder than MPC. no "irresetible impulse" branch

What are the NY rules regarding alibi?

if prosecution asks within 20 days of arraignment, D must provide the details circumstances and witnesses of his alibi defense

When must a D provide notice of insanity defense?

Within 30 days from a not guilty plea

What is the NY standard for inefective assistance of counsel?

Greater protection than us consitution.

(1) failed to provide "meaningful representation"
(2) a single error that is "sufficiently egregious and prejudicial as to compromise a right to fair trial"
(3) absense of stratetgic explanation for attorney's performance
(4) failure to make a motion if D shows motion had a reasonable chance of succeeding

What are the rules in NY for character witnesses?

Must be criminal cases
ONLY reputation, not opinion
ONLY relevant traits

What are the NY rules for victim's past behavior in rape cases?

(1) Conviction for prostitution within three years prior
(2) Rebuttal evidence of sexual propensity if victim testifies he or she was chaste

What are the special evidentiary privileges recognized in NY?

(1) Journalist privilege. If published, confidential news sources need not be disclosed
(2) Psychologist/Psychoteherpaist/Social Worker/Rape Counselor

When is an inference permitted for failure to call a witness?

(1) W's knowledge is material to trial
(2) W would give noncumulative testimony favorable to W's side
(3) W is "available"

When can a life tenant undertake beneficial (ameliorative) waste in NY?

Multistate rules
(1) FMV is not diminished
(2) consent of remainder OR "changed conditions"

NY adds:
(3) does not violate any agreement
(4) life estate is at least 5 years
(6) written notice of change served on remaindermen

What is the difference between executory interests and contingent remainders in NY?

No difference. They are simply called "remainder subject to a condition precedent".

What RAP reforms has Ny adopted?

(1) Age contingency fix (25 -> 21)

(2) Men can have children at age 14. Females can not have children over age 55.

(3) "widow" is construed to be current spouse

(4) presumption that creater intended a valid interest

What are the NY rules regarding residential tenant assignment and sublease?

(1) Assignment is presumptively not allowed. Assignment requires writen consent of owner.

(2) Subleases are presumptively allowed. Landlord cannot unreasonably withhold right to sublease.

What are the rules for adverse possession in NY?

(1) SoL is 10 years

(2) Tenant in common with exclusive possession w/o ouster can get AP after 20 years

(3) Possession without good-faith belief or claim of right is a trespass

(4) De minimis hedges, fences, etc. are deemd permissive and nonadverse

Who bears the risk of loss in real estate transactions in NY?

NY adopted UVPRA, which places risk on seller unless buyer has legal title or possession

Do easements prevent marketable title in NY?

KNOWN or BENEFICIAL easements do not prevent marketable title.

However, unlike multistate, VISIBLE easements do prevent marketable title.

What type of recording statute does NY have?

race-notice

Does NY follow lien theory or title theory?

Lien theory.

Does NY have a stautory redemption?

No. NY only has an equitable right of redemption. There is no stautory right of redemption after sale.

What is prima facie tort?

Fallback tort in NY. Intentional infliction of pecuniary harm without justification.

Pecuinary loss is an essential element.

Does NY have a duty to retreat before deadly force?

Yes, unless
(1) not safe to do so
(2) in own dwelling
(3) is police officer
(4) is assisting a police officer

What are the elements of negligent misrepresentation?

multistate factors:
(1) misrepresentation by a professional
(2) breach of duty
(3) causation
(4) reliance
(5) damages

PLUS ny factors:
(1) awareness that statement was to be used for particular purpose
(2) reliance by a known party in furtherance of the purpose
(3) conduct by D demonstrating defendant's understanding of the reliance

What are the NY rules for NIED?

(1) P must be in the zone of danger of physical injury
(2) P either experienced a threat of physical impact or observed a threat of physical impact toward an immediate family member

requires physical symptoms

What is a doctor's standard of care when he undertakes a rescue?

multistate: standard is ordinary due care

NY: only liable for gross negligence. this special rule is for licensed health professionals only; a layperson is still subject to ordinary care.

What is NY stance on P's contributing negligence?

Pure comparative negligence. Can recover even if mostly at fault

What is NY's permissive use statute?

The owner of a car is NOT vicariously liable for intentionally tortious operation by the driver

Does NY impose vicarious liability to parents for children?

Yes, for willful and intentional property torts of children over age 10, up to $5,000

Can a child sue his parent for negligent supervision?

No. This claim is not allowed in NY. But otherwise, no intra-family immunity

T, trustee is a very wealthy individual, and is enamored toward the beneficiaries. He thus decides to loan money to the trust at an interest rate of 2%, much lower than the market rate of 5%. Permissible?

NO. "no further inquiry". Even if the trustee is giving the trust a great deal, it is invalid.

T, trustee of ABC Trust, signs as "T, trustee of ABC Trust". Is T personally liable?

Yes. Mere notation that T is trustee. Need to explicitly say its on behalf of the trust, eg "ABC Trust, signed by trustee T".

Trust pays A income for life, residuary to B. The Trust initially has assets of $1,000,000 invested in a diversified stock portfolio, and T, the trustee has been making income payments of $30,000 per year to A. However, the past year has been a great year, and the principal amount increases to $1,400,000 due to a great year in the stock market, exclusively as capital gains growth (eg the stock prices rise). At common law, capital gains are allocated to principal, not income. However, T thinks that the income payments to A should be increased to $40,000 per year in the interests of fairness. B sues T for misallocating the capital gains to income. Result?

B's claim will fail. The trustee, by default, has an "adjustment power" under the Uniform Principal and Income Act. The trustee may, in his discretion reallocate investment portfolio return if appropriate or necessary to carry out the trust purposes.

The factors to be considered are: (1) nature purpose and duration of the trust (2) intent of the settlor (3) circumstances of the beneficiaries (4) need for liquidity, regularity of income, and (5) natur e of the trust's assets.

T is trustee for two trusts, A and B. A has a plethora of overly risky assets, while B has a plethora of overly safe assets. He thus trades some assets from A and B, so that both trusts are appropriately balanced. May he do so?

No. This constitutes "self dealing" under the trust laws, and is thus subject to the "no further inquiry" rule.

T is trustee of a $1,000,000 trust created by a will. T thinks that he will maximize the overall return on trust assets by investing in the stock market. The income beneficiary sues to stop T, arguing that the stock market investment will subject her lifetime income interest to too much risk. Result?

T must manage the trust as a prudent investor, in the context of the entire trust portfolio. Thus, if T thinks the stock market will in the long run maximize expected total return for the trust, his action is appropriate. Thus the income beneficary's claim fails.

What are the three major duties of the trustee?

(1) Duty of loyalty. No self-dealing (no further inquiry)

(2) Duty to segregate trust property. No commingling.

(3) Duty to preserve and make productive. Trustee must invest the property as a prudent investor would.

What are the five formalities of trust creation?

W-VARBIT:

Writing, signed by settlor and at least one trustee
Valid trust purpose
Acknowledged before notary or in presence of two witnesses
Res
Beneficiary
Intent to create trust
Trustee

What are the default rules for revocability?

(1) Lifetime trust is irrevocable unless power to amend or revoke is expressly reserved
-amendments must be in writing, signed, and witnessed by two people

What is an exception to the res requirement?

An inter-vivos trust created without res is valid if "poured-over" to by a will.

What is a totten trust?

Poor-man's trust.

deposit to bank in trust for another.

depositor resreves right to withdraw funds at any time.

on depositor's death, passes to named beneficiary

NO formalities.

What are the rules for a power of attorney?

Power of attorney is durable (goes beyond incapacity) unless it expressly provides it is to terminate on the incapacity of the principal.

What is cy pres doctrine for charitable trusts?

Trust terms can be modified if the original purpose of the trust can no longer be accomplished. Court will direct the trust property toward another charitable purpose close as possible to the original

What are the two types of non-person beneficiary trusts recognized in NY?

(1) trusts for cemetry purposes
(2) trusts for pets

What is a resulting trust?

A fallback trust that comes into being if the usual trust formalities are not followed.

When does an oral trust of land become a constructive trust?

Oral agreement to hold land in trust is invalid unlesss
(1) fraud in the inducement
(2) oral promise was made in context of a confidential relationship
(3) promise proved by clear and convincing evidence

What are the rules for spendthrift trusts?

A "spendthrift clause" prohibits voluntary and involuntary transfers of a beneficiary's interest.

All trusts are automatically given spendtrhift protection.

What are the spendthrift exceptions?

(1) Creditors who furnish necessaries
(2) Child support or alimony
(3) Federal govt
(4) Other creditors beyond income needed for "education and support"

under "4" the subjective lifestyle of the beneficiary is taken into account, and is thus a last resort.

creditors can also (combining) get 10% of income

Can a settlor also named as beneficiary obtain spendthrift protection?

No. this could defraud creditors.

If all beneficiaries consent, can a trust be terminated?

No. Under Claflin doctrine, this is not allowed if termination would be contrary to purposes of the settlor.

Can an irrevocable trust ever be revoked?

Yes, upon consent of settlor AND all beneficiaries

Can an incompetent ever agree to revocation?

No. Consent of a minor or incompetent cannot be obtained

If the trust comes with an invasion power (eg income to B, with ample provision for her lifestyle and support), when should the trustee invade the principal if B requires a distribution for lifestyle and support?

Trustee should look at B's overall financial situation. If B is quite independently wealthy, trustee need not make a distribution. If the trust document is silent w/r/t invasion power, a beneficiary can never compel a trustee to make a distribution, as it is deemed in the full discretion of the trustee.

What is the NY statute governing wills and estates?

Estates Powers and Trusts Law (EPTL)

Grannie, a widow, dies intestate with 4 children, A, B, C, and D. She was predeceased by B, who had 3 children, Gabbie, Gatsby, and Ginger, and D, who had 2 children, Ger and Gus. A has a son, Gary. Upon Grannie's death, who gets the property?

(1) A and C are still alive. Each gets 1/4
(2) B and D left a total of 5 children. Each gets 1/10.
(3) Gary gets nothing.

Little orphan Annie dies of cancer on her 18th birthday. She is survived by her sisters, Sally and Sarah, the son of her dead brother, and her maternal grandparents. Who gets the property?

(1) Sally and Sarah get 2/3
(2) Nephew gets 1/3
(3) Grandparents get nothing unless no siblings or parents.

Grandpa dies leaving a will that provides that his property will go to "the issue of my daughter, Danielle." Danielle had 3 children, A, B, and C. C had already died, but left behind 2 children, G1 and G2. B had also died, as did her 1 child, G3. G3 left GG1 and GG2 behind, who live. Who gets Grandpa's property?

(1) A gets 1/3
(2) G1 and G2 get 2/9 each
(3) GG1 and GG2 get 1/9 each.

Princess Diana died and Prince Charles marries Camilla. Assume Camilla adopted William and Harry, Diana's sons with Charles. William, Harry, and their issue will inherit from:

Diana, Charles, and Camilla.

V dies, having had two children A and B. A had two children, G1 and G2. B had a daughter, G3. A died last year, and his children were adopted by B. Who gets V's property, assuming V dies intestate?

(1) B gets 1/2
(2) G1 and G2 each get 1/4
(3) G3 gets nothing b/c B is alive

The adopted children inherit under the birth relationship because the decedent is not the adoptive parent.

V dies of old age intestate. V had three children, A and B, by birth, and C, by adoption. A and B each had one child, G1 and G2, respectively. C's birth parents had abandoned him at birth due to his congenital illness, which caused him to die under V's care at age 25. C's mother was V's sister. C had two children, G3 and G4. Who inherits and in what proportion?

(1) A and B each get 2/3
(2) C's children, G3 and G4, get 1/9 each

C inherits under the adoptive relationship, even though he is related to the decedent by birth and by adoption, because the decedent was the adoptive parent.

What are the 4 ways to establish paternity of a non-marital child, so that the child may inherit from the father?

(1) legitimation through marriage of the mother
(2) an order of filiation in a paternity suit
(3) an affidavit of paternity filed and acknowledged by the father
(4) clear and convincing evidence (either (1) DNA test or (2) openly and notoriously holding child out as own).

What circumstances disqualify a surviving spouse from taking an intestate share and how do we treat the spouse?

DISMAL: Divorice, Invalid divorce (procured by the surviving spouse), Separation decree, Marriage is void, Abandonment or Lack of Support by the surviving spouse.

We treat the spouse as if he/she predeceased the dead spouse.

Joseph and Mary have three children, Jesus, Jacob, and Harold. Mary also had two children from a previous marriage, Lucifer and Michael. Joseph dies intestate, leaving $350k. Who gets his property? What if he and Mary got divorced?

(1) Mary would get $50k + $150k
(2) Joseph and Mary's 3 children would get $50k each.

If Mary and Joseph were divorced:
(1) Mary is treated as predeceased.
(2) Joseph is survived by 3 of his own issue, who each get $117k.

Joseph, a widower, had two children, Lucifer and Jesus. While he was alive, he gave $100k and a new car valued at $30k to Jesus. He wrote Jesus a contemporaneous, signed letter stating that this was an advance on his inheritance. Shortly thereafter, he dies, leaving an estate worth $300k. What do Lucifer and Jesus get?

(1) The $130k was a valid advance to Jesus
(2) $300k + date of death value of $130k to Jesus = $430. Lucifer gets $215. Jesus gets $85k

June, a widower, dies intestate leaving an estate valued at $500k. She had two children, Beaver and Ginny. Beaver had two children, G1 and G2. Ginny had 1 child, G3. Beaver, who had done well for himself, filed a signed document 10 months later with the Surrogate Court that stated that he irrevocably disclaimed all his title in June's estate. Who gets June's property?

The disclaimer is invalid. It must be signed and acknowledged by a notary public, filed w/in 9 months of decedent's death, and be accompanied by an affidavit stating that no consideration was received.

June, a widower, dies intestate leaving an estate valued at $500k. She had two children, Beaver and Ginny. Beaver had two children, G1 and G2. Ginny, who was dead, had 1 child, G3. Beaver, who had done well for himself, validly disclaimed all his title in June's estate. Who gets June's property?

(1) The disclaimer is valid. Beaver is treated as predeceased.
(2) If Beaver hadn't disclaimed, Beaver would get 1/2 and G3 would get 1/2. If Beaver treated as predeceased, G1-G3 each get 1/3.
(3) Therefore, to prevent an inequitable result, we pretend Beaver died 1 day after June. G3 gets 1/2. G1 and G2 get 1/4.

What is the 7 point test for a valid will?

(1) Testator is 18+
(2) Testator signs
(3) Signature is at the end thereof
(4) Testator signs or acknowledges int he presence of each witness
(5) Publication - tell witnesses what they are witnessing
(6) 2 witnesses sign
(7) Ceremony lasts 30 days (from when 1st witness signed)

Debra dies, leaving twins, T1 and T2. T1, the executor, goes to probate court to probate her will. The will is not self-proved by a self-proving affidavit. However, 1 witness refuses to testify. The other is available to help prove due execution. Is 1 witness enough here?

No. 1 witness is enough if the other is dead, absent from the state, incompetent, or cannot be found with diligence.

If neither were available, then the proponent would have to prove the signatures of both the testator and 1 witness.

What is an Attestation Clause?

It's a short paragraph reciting all the elements of due execution of a will (7 points) under which witnesses may sign. It is prima facie evidence of the facts presented, but is not a substitute for live testimony by a will proponent.

Cf. Self-proving affidavit (signed and sworn in presence of attorney), which is sufficient prove of will validity unless an interested party objects.

What is the order of "abatement" where there are more claims against the state than there are assets?

(1) Intestate and residuary property
(2) General legacies
(3) Demonstrative Legacies
(4) Specific gifts

Lena dies of old age. Her estate is worth $390k at death, but she still has $150k in law school debt. She left her boat, worth $50k, to her husband, Kevin. In her will, she left $200k to her "son Lee and his issue." Lee predeceased Lena, leaving 3 kids, Min, Lulu, and Amy. She left $100k from her account at Citibank to her daughter, Grace. She left no mention of the residuary. Who gets what?

First, pay off the creditors.
(1) She has $50k of residuary property
(2) Abatement for debt: the residuary will be taken by creditors, $100k will be taken from Lee and issue.

augmented estate for spousal share is thus: 240k
-Kevin is entitled to at least 80k.

Kevin currently gets 50k of stuff. So he needs 30k.

Grace gets 100k nominally
3 kids get 100k together nominally

share the pain pro-rata, so minus 15k each.

Kevin: boat + 30k cash
Grace: 85k cash
3 kids: 85k total cash split evenly

What are the three situations in which specific gifts will not adeem?

(1) Insurance proceeds for lost, damage, stolen property paid after death
(2) Proceeds received under executory contract paid after death
(3) Conservator's sale of the specific gift if it can be traced.

At death, LaShawn leaves a will that states that the executor must "pay all of my debts right after my death before the remainder is distributed." He then devises his house and his residuary estate. His house is encumbered with a $100k remaining mortgage. Is the recipient of his house entitled to get it free of the lien?

Unlike under common law, no exoneration in NY unless the will specifically directs the estate to exonerate.

Lilly validly executes a will that says:

(1) My furniture to Marshall
(2) 100 shares of IBM stock to Robin
(3) 20 shares of my small art business's stock to Ted
(4) 40 shares of Google stock to Barney.
Etc...

Upon her death, the first three of these bequests were already sold. The fourth splits 2 for 1. Who gets what?

Adeem = gets nothing. (1) My furniture to Marshall, (3) 20 shares of my small art business

(2) Robin will get the FMV of 100 shares of IBM stock b/c it was a general gift.

(4) 80 Google shares to Barney.

The testamentary substitutes for the elective share of a testator's spouse are:

T Subs need a LEG UP

(1) Totten trusts
(2) Survivorship estates (watch out for pre vs. post marriage)
(3) Lifetime transfers (life estate retained or revocable)
(4) Employee pension funds
(5) Gifts of over $14k made w/in 1 year of death
(6) US bonds
(7) Powers of Appointment - presently exercisable general

If T has an interest, it's probably a T sub (notice, not life insurance)

H leaves:
(1) A probate estate of 200, of which 50 is given to W directly
(2) Totten trust for A of 100
(3) Gift of 20k made 13 months before death
(4) Joint bank account with B of 100, in which H contributed 80% of funds, made during marriage
(5) Joint tenancy with W of 100
(6) Joint bank account with D of 50, in which H contributed all the funds before the marriage.

What does W get?

-probate estate is completely included=200k
-totten trust completely included=100k
-20k gift was more than a year, so excluded
-joint bank account: consideration furnished = 80k
-joint tenancy with W = half = 50k
-joint account with D = half is gift = 25k

(1) Calculate net probate estate, which consists of probate estate and T subs: 200 + 100 + 80 + 100 + 50 + 25 = 555
(2) 1/3 = 555/3 = 185
(3) Subtract what W already got: 50 + 50 = 100
(4) Remainder needs to be satisfied by the probate estate = 85

Does an elective share trust that gives a surviving spouse a life estate whose principal is greater than 1/3 of the estate and $50k outright satisfy the survivor's elective share right?

No. If surviving spouse invokes the elective share, pretend there was no life estate to her and accelerate to the remainderman.

As a jurisdictional issue, when does a surviving spouse have a right to election?

When the decedent spouse was domiciled in NY at the time of death, UNLESS the testator expressly stated that the property was to be governed by NY law.

In addition to the elective share, what is a spouse surviving a testator entitled to?

A $92,500 exempt personal property set-aside off the top, before the the estate is probated.

What kind of power of appointment is also a testamentary substitute for elective share purposes?

A general presently exercisable power of appointment given to a dead spouse is considered a T sub for the surviving spouse because the dead spouse could have given it to herself.

Yar dies, leaving a will that devises property in trust, "Income to my husband Data for life. He may appoint the trust principal to anyone during his life or by will." Data does not exercise his POA during his life, but states in his will, "Income to my daughter Laal for life, then to my friend Wesley's children upon reaching age 21, until they reach age 40. At that time, the principal shall be paid to Wesley's children equally." Wesley had no children yet. Does this violate RAP or the Suspension Rule?

(1) Type of POA: general presently exercisable
(2) Is the power acquired in LIB + 21: yes, valid
(3) Are the interests created valid?
- For general, presently exercisable POA, measure validity from date of instrument exercising the power and do not use "2nd look" doctrine.
-

Picard leaves the Starship Enterprise to Riker in his will. During his life, he was the captain of both the Enterprise C and Enterprise D. No one pointed this out until after his death. Will extrinsic evidence be allowed to clarify the meaning of Picard's words? What kind?

Yes, this is a latent ambiguity.
(1) Facts sand circumstances evidence
(2) Statements of intent to third parties
(3) Statements of intent to his drafting attorney

Note: Extrinsic evidence NOT allowed for mistakes. It is allowed for patent ambiguities, minus statements to third parties.

What is required to show testamentary capacity?

Testator understood:
(1) Nature of the act
(2) Nature of his property
(3) The natural objects of his bounty
(4) Nature of his dispositions of property

What is required to show an undue influence on the testator in making his will?

(1) Existence of an influence
(2) The effect was to overpower his mind and will
(3) The gifts would not have been made as such, but for the influence

If testator bequeaths property to the drafting attorney:

The court will look into whether it was voluntarily made under "Putnam Scrutiny."

What is the New York treatment of no-contest or "in terrorem" clauses in wills?

It will be given full effect EVEN IF a contest was brought in good faith and with probable cause (e.g., lack of testamentary capacity).

Except:
(1) forgery or later revocation by new will
(2) will contest was made on behalf of an infant or incompetent
(3) proceeding is merely to construe terms
(4) objection to jurisdiction of the court
(5) to examine the preparer, witnesses, proponents, and executors in discovery

X,Y,Z are witnesses to T's will. Z gets 1/2 of Blackacre in the will. What result?

Z is an "interested witness" to the will. However, since X and Y would be sufficient, it does not matter that Z is interested. Will is valid.

X and T's wife W are witnesses to T's will. In the will, W gets $1000. If T were to die intestate, W gets $50,000. What result?

W is an interested witness. However, the will can be saved, because W would be an intestate taker. The result is W gets the less amount of intestacy or the will. Here, we compare $1000 to $50,000, and see that W gets $1,000.

X Y are witnesses to T's will. Y gets T's car in the will. What result?

Y is interested, and is not an intestate taker, so the devise fails. the will is still valid because an interested witness can not wreck the will.

T's will is invalid in California, where he executed it. The will is also invalid in NY. But it is valid in Montana, where he is domiciled. T dies in NY while on vacation. Can it be admitted to probate in NY?

Yes. "END" applies: Admitted to probate if

(1) valid where executed
(2) valid in NY
(3) valid in domicile

category 3 applies, so it can be admitted to probate.

T executes a will in California that is valid in CA but invalid in NY. The only specific bequest is "my Porsche to my brother Billy". The residuary goes to T's mother Sally.

Billy predeceased T, but has a son Bobby. California does not have an anti-lapse statute, but NY does. Who gets the Porsche, if offered for probate in NY?

Bobby gets the Porsche. Even though we rely on California law to admit the will to probate, we apply the substantive wills law of NY. NY has anti-lapse, so Bobby gets it.

T, a NY domicilliary, is a sailor in the US Navy. He writes a holographic will in 2005. T dies while serving, but the holographic will is found. Can admit to probate in NY?

Yes. Holographic wills are usually invalid in NY. But there is an exception for members of the armed forces.

Can a beneficiary sue a negligent estates lawyer?

No. lack of privity of contract. But an executor DOES have privity of contract, and could bring a cause of action.

T executes Will X in 2002, which makes a full disposition of his property. T executes Will Y in 2004, which makes a full disposition of his property. T burns Will Y in 2005. Which will applies upon death?

Neither. The proper execution of Will Y revokes Will X, because the full disposition implies Will X is revoked by implication. Then the burning of Will Y revokes Will Y. T dies intestate.

T writes Will X in 2002. T writes "i cancel this will" on every page at the top and bottom. Does Will X apply?

Yes. This does not constitute a "physical act", which includes crossing out sig or burning it.

What are examples of physical acts of revocation?

Burning, tearing, crossing sig, cutting, obliterating...provided it is done with intent to revoke.

T writes Will X in 2002. He gives a copy to each witness. He asks his wife to burn the original for him in 2003 while they are at dinner. W does so. T dies 3 years later. Result?

T did not effectively revoke, because the physical act was done by another. A physical act done by another is only proper in the presence of two other witnesses (4 people total).

Therefore, the probate court should go to the witnesses and admit the copy of the will.

T executes Will X in 2002. Will X simply states " All property to my lover, L". T executes Will Y in 2004. Will Y states "My stamp collection to C". Who gets what on T's death?

A subsequent will, without an express revocation, counts as a codecil. Therefore, C gets the stamp collection, L gets everything else. Nothing goes to intestacy.

T executes Will X in 2005. The will contains 3 bequests. "my car to Samantha" , "my computer collection to Bob" and "Blackacre to Willy". There is also a residuary clause that points to Hank. In 2006, T crosses out the first two bequests to Samantha and Bob, and writes in the margin "it is my intent that these bequests are cancelled. Please do not give any property to Samantha and Bob". Result on T's death?

No doctrine of partial physical revocation. All three bequests are honored.

What happens if T's Will cant be found after death?

Presumption is revocation, unless last seen in the hands of an adversely affected party.

What happens to text located after T's signature?

Ignored

T executes Will X in 2005. Will X states "everything to my lover, Marissa". T executes Will Y in 2006. Will Y states "revoke Will X. everything to my brother Bobby". T burns Will Y in 2008. T executes a codicil that states "As an amendment to my Will of 2005, I would like to make a specific bequest of my car to Susie". Result?

X is revoked by Y, and Y is revoked by physical act. But X is republished through codicil. This is valid under "republication by codicil.

Therefore, Susie gets the car and Marissa gets everything else

T hates his children, and aims to disinherit. T executes Will X in 2005, and gives "everything to the american cancer society". T later changes his mind, and executes Will Y "everything to New York University, for cancer research". T then, once again, changes his mind, and burns Will Y (although there is a copy at his attorney's office). T thinks Will X will apply, and the money will go to the American Cancer Society. What result?

X is revoked by Y, and Y is revoked by physical act. So T technically has no Will.

However, this is a compelling case for DRR (dependent relative revocation). Under DRR, Y is considered "not revoked". Thus everything to NYU.

T leaves Blackacre "half to A, half to B as tenants in common".

A, T's cousin, has a child, Xerath.

B, who is T's brother, has a child Susie.

A and B both predecease T. Result?

B's gift would lapse, but anti-lapse applies since B is (1) a sibling (2) who leaves issue. Therefore, Susie gets half of Blackacre.

A's gift lapses. Anti-lapse does not apply because A is not a sibling and is not issue.

T leaves Blackacre to his son, S. S has a child, G. S is on the verge of bankruptcy, and thus wants to minimize transfers to himself. Therefore, S disclaims Blackacre. Result?

Anti-lapse applies to disclaimed interests. Therefore, G takes.

T has a birthchild S who has since been adopted by X and Y, nonrelatives. In T's will, T leaves Blackacre to S. S predeceases T, leaving M as issue. Who gets Blackacre?

M. Usually adopted-out do not take under intestacy. Nonetheless, if there is a specific bequest, anti-lapse applies in favor of an adopted out child.

See More

Please allow access to your computer’s microphone to use Voice Recording.

Having trouble? Click here for help.

We can’t access your microphone!

Click the icon above to update your browser permissions above and try again

Example:

Reload the page to try again!

Reload

Press Cmd-0 to reset your zoom

Press Ctrl-0 to reset your zoom

It looks like your browser might be zoomed in or out. Your browser needs to be zoomed to a normal size to record audio.

Please upgrade Flash or install Chrome
to use Voice Recording.

For more help, see our troubleshooting page.

Your microphone is muted

For help fixing this issue, see this FAQ.

Star this term

You can study starred terms together

NEW! Voice Recording

Create Set